Director of Public Prosecutions v Gheyratmand

[2023] VCC 955

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01864

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMAN GHEYRATMAND

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	9 and 10 May 2023
DATE OF SENTENCE:	17 May 2023
CASE MAY BE CITED AS:	DPP v Gheyratmand
MEDIUM NEUTRAL CITATION:	[2023] VCC 955

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW SENTENCE

Catchwords:  Traffick drug of dependence, cultivation of narcotic plant-commercial quantity, theft, deal with property suspected proceeds of crime.

Legislation Cited: s6AAA Sentencing Act 1991.

Cases Cited:R v Verdins & Ors [2007] VSCA 102, Worboyes v The Queen [2021] VSCA 169

Sentence:Imprisonment – Total Effective Sentence 4 years. Non-parole period 2 years and 6 months. Forfeiture and Disposal orders.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr W. Stougiannos	Ms. S. Khazanchi
For the Accused	Mr M. Pena-Rees	Mr. M. Pena-Rees

HIS HONOUR:

1Saman Gheyratmand, you have pleaded guilty to one charge of cultivation of a narcotic plant in a commercial quantity between the period of 19 June 2019 and 2 July 2019.

2The facts of your offending are set out in Exhibit A, the summary of prosecution opening for plea.  I was informed by your counsel I could treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence and sentence you on the basis of the facts set out therein.

3There is, therefore, no need for me to canvas the facts in detail save to say that during the relevant period of the indictment you were involved in the cultivation of cannabis at two premises.  It is a rolled-up count reflecting the activity at both.  There was a quantity of just less than 100 kilograms in total of cannabis and in the order of 150 plants were located.

4You have admitted a prior conviction which is a traffic matter and has no relevance, in my view, to the sentencing exercise I have to deal with here.

5Your counsel filed written submissions, Exhibit 1, and relied in part upon a report from Patrick Newton, Exhibit 3, outlining your mental health issues in relation to anxiety and depression.  You have an opiate addiction which is presumably in remission whilst you are in custody, and you suffer from depression and anxiety of a type that I accept would enliven limb 5 of Verdins[1] and that custody is likely to adversely affect your condition.

[1]R v Verdins & Ors [2007] VSCA 102

6I have taken into account in your favour a number of matters.

7Firstly, your plea of guilty.  By pleading guilty you have saved the community the time and expense of a criminal trial.  You are entitled to a reduction in sentence to reflect that plea of guilty.  Further, that plea of guilty is of increased value because of the effect COVID has had upon our legal system and the principles of Worboyes[2] have application in your case.

[2] Worboyes v The Queen [2021] VSCA 169

8I take into account the fact that your reactive psychological issues and your mild depressive disorder and anxiety enliven limb 5 of Verdins.

9I take into account the contents of Exhibit 2 and the value of that document in arriving at an appropriate sentence.

10You have prospects of being deported.  I accept that your time in custody will be more onerous because of your concerns in relation to that prospect. 
You are not an Australian citizen.

11Your history is set out in the submissions of your counsel and in the report of Patrick Newton.  You are not an Australian citizen.  You are of Kurdish background.  You were born in Iran.  You have no family in this country. 
You did have a partner and a daughter but she is now living in Colombia with her mother.

12You developed a substance issue and mental health issues.  It seems to me that you are also going to suffer psychologically because you are going to probably lose your house as a result of confiscation orders in this case.  One of the premises in which you grew cannabis.

13Those matters I take into account in a general way in arriving at an appropriate sentence for you.

14You will do your time in custody subject to the conditions that COVID-19 forces upon us.  There will be issues with lockdowns, quarantine and your time in custody will be otherwise more onerous because of that effect.

15Putting all those matters together it is common ground that nothing other than a term of imprisonment is appropriate for your offending.

16I take into account all the matters urged on your behalf by your counsel.

17On the one indictable charge of cultivating a narcotic plant in not less than a commercial quantity you are sentenced to be imprisoned for four years.

18I order that you serve two and a half years of that sentence before being eligible for parole.

19I should add to my reasons that I have taken into account the fact that it is some four years since you offended.  Not all that delay is attributable to you.  So, you have had this hanging over your head for that period of time.  Some of the delay, however, is as a result of your manipulations of trial dates.

20In relation to the summary offence of dealing with money suspected of being the proceeds of crime I sentence you to one month imprisonment.  That term of imprisonment to be served concurrently with the sentence otherwise imposed.

21I indicate pursuant to s6AAA of the Sentencing Act that but for your plea of guilty I would have imposed a term of imprisonment of seven years with a non‑parole period of four and a half years.

22Are there disposal orders wanted?

23MR STOUGIANNOS:  Yes, there is.  There is disposal and forfeiture.

24HIS HONOUR:  I make the disposal and forfeiture orders sought by the prosecution.

25MR STOUGIANNOS:  Thank you, sir.

26HIS HONOUR:  All right.  Is that all I need to do, gentlemen?

27MR PENA-REES:  Thank you, Your Honour.

28MR STOUGIANNOS:  If Your Honour pleases.

29HIS HONOUR:  All right.  Thank you.  You are free to go.  I will just remain here for a minute.  What is happening with this trial?

30MR STOUGIANNOS:  Sorry, just to interrupt.

31HIS HONOUR:  Yes, Mr Stougiannos.

32MR STOUGIANNOS:  I was looking.  So, there is PSD involved.

33HIS HONOUR:  Yes, I had better declare - - -

34MR STOUGIANNOS:  Three days.

35HIS HONOUR:  How much?

36MR STOUGIANNOS:  Three days.  Well including the - from last week.

37HIS HONOUR:  On top of what he was in before.  What is the total PSD?

38MR STOUGIANNOS:  I'm trying to do the sums.  There were three days before today, Your Honour and I've got - so we were here last Wednesday.

39HIS HONOUR:  When did he go into custody?

40MR STOUGIANNOS:  Last Wednesday.

41HIS HONOUR:  He has been custody.  The first time he goes into custody is when I sentenced him, is it?

42MR PENA-REES:  No, Your Honour.

43HIS HONOUR:  When I gave the sentence indication?

44MR STOUGIANNOS:  No, no.  He had three days beforehand and he's got from last Wednesday to today's date which is another seven.  So, 10 days.

45MR PENA-REES:  I think it's eight.

46MR STOUGIANNOS:  Eight?

47MR PENA-REES:  Counting today it's eight.

48HIS HONOUR:  Not counting today?

49MR PENA-REES:  Not counting today it's seven.  So, 10 days.

50HIS HONOUR:  I declare that eight days of the sentence I have just
imposed - - -

51MR PENA-REES:  Ten days.

52HIS HONOUR:  Ten days of the sentence I have just imposed, not including today, has already been served by way of pre-sentence detention.

53MR STOUGIANNOS:  Yes.  Thank you, sir.

54HIS HONOUR:  Thank you.

55MR PENA-REES:  If Your Honour pleases.

56HIS HONOUR:  I will excuse you, gentlemen, because you heard that buzzer.  I have got to deal with whatever is happening with this jury.

57MR PENA-REES:  If Your Honour pleases.  Thank you.

58HIS HONOUR:  You can just terminate the link if you would.

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