Director of Public Prosecutions v Hamidi

[2023] VCC 2232

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
 Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-22-01004
Indictment No. M12250975

DIRECTOR OF PUBLIC PROSECUTIONS

v

JONADE HAMIDI

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JUDGE:	JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	13 November 2023, 24 November 2023
DATE OF SENTENCE:	29 November 2023
CASE MAY BE CITED AS:	DPP v Hamidi
MEDIUM NEUTRAL CITATION:	[2023] VCC 2232

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Trafficking in a drug of dependence; possession of a drug of dependence; deal with property suspected of being proceeds of crime

Cases Cited:Worboyes v R [2021] VSCA 169; R v Verdins (2007) 16 VR 269

Sentence:                  20 months’ imprisonment

NPP 10 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr F Cameron	Solicitor for the Office of Public Prosecutions
For the Offender	Mr S Tovey	Ms J Fayman

HER HONOUR:

1Jonade Hamidi, you have pleaded guilty to the following offences that occurred on a single date, being 28 October 2021. 

CHARGE	OFFENCE	MAXIMUM PENALTY
Charge 1	Trafficking in a drug of dependence, namely cannabis	15 years’ imprisonment
Charge 2	Trafficking in a drug of dependence, namely cocaine	15 years’ imprisonment
Charge 3	Possession of a drug of dependence, namely ketamine	1 year imprisonment
Summary Offence 9	Deal with property suspected of being proceeds of crime, namely $68,810	2 years’ imprisonment
Summary Offence 12	Deal with property suspected of being proceeds of crime, namely $189,700	2 years’ imprisonment

1At the relevant time, you resided with Illi GLOVER, your partner and co-offender in this case.  The circumstances of your offending have been provided in the summary of prosecution opening.  It is agreed to be an accurate account of events.  A general summary of the facts is as follows:

2On 28 October 2021, police performed patrol duties in Doncaster East, due to concerns related to local drug activity.  At the time, you were seated in your car, which was parked on the side of the road.  At around 4.10 pm, two police officers activated their body worn cameras and asked you to exit your vehicle.  You complied with their request.

3While enquiries were underway to determine your identity, you had a conversation with one police officer.  You did not agree to being searched and told him to 'stay the fuck away' and you then ran away.

4Between 4.21 and 4.33 pm, you made several attempts to contact your partner using your mobile phone.  You eventually contacted her and said 'I’m running from police.  You need to get the fuck out of the house, get everything out of the house now.  Go upstairs to the office, get everything out of the house.  Grab the "weed" bags which are in the wardrobe.'

5Your partner went upstairs to your office, opened the wardrobe and located two bags which she believed contained cannabis.  She then located small parcels wrapped in paper towel with rubber bands around them, and several Ziploc sandwich bags on the bench; some contained white powder, while others were empty.  A large amount of cash was also on the bench, divided into bundles held together with rubber bands.  Your partner collected the cash and the bags with powder and, together with the cannabis, put them into two reusable shopping bags.

6You called her again and said 'Get the money sitting on my side table.  Get the safe out of my wardrobe and get my cipher phone on the bedside table, take the phone it will be wiped.'

7She then went into the wardrobe and found the safe, which she removed and took to her car, together with the shopping bags.

8You called her again and told her to leave the house immediately.

9At 4.32 pm, your partner placed both shopping bags into the rear passenger footwell of her car, placed the safe into the boot and drove away from the house.

10Police intercepted her nearby.  You were located by the police canine unit in the backyard of a house in Doncaster East and placed under arrest.

11Your partner’s car was towed to the police station and thoroughly searched.  The shopping bags contained:

·     Seven bundles of cash and two envelopes containing a total of $68,810.

·     Two plastic bags containing green vegetable matter.  Subsequent analysis confirmed that it was cannabis, with a total weight of 885.7 grams.

·     Numerous plastic bags containing white powder. Subsequent analysis confirmed that the powder consisted of:

(a) cocaine with approximate purity levels varying between 26 - 81 per cent and weighing a total of 169.8 grams; and

(b) ketamine with an approximate purity level of 72 per cent and weighing 3.4 grams.

12The safe was found in the boot of the car.  On 3 November 2021, police accessed the safe and located a further $189,700 in cash.

13You were interviewed by police on 28 October, charged with a number of offences and remanded into custody.  You were released on bail on 17 December 2021.  You answered 'no comment' to questions put to you in your record of interview and have not provided a specific explanation for your offending conduct.  A contested committal was conducted on 8 June 2022, where your co-offender and the informant were cross-examined.  You were committed to stand trial and entered pleas of not guilty.  Your trial was listed to commence on 18 July 2023.  As a result of a change in your lawyers, discussions to resolve your case commenced in 2023.  On the first day of the trial, the discussions continued.  An updated indictment was then filed and you pleaded guilty to the current offences on 20 July 2023. 

14The evidence against you has been clear for a long time.  Your guilty plea was entered at a late stage, although it still has some utilitarian benefit.  You have saved the court and community the time and expense of running a trial.  You also prevented your co-accused from being required to give evidence and undergo further cross-examination.  Your plea of guilty facilitates the efficient administration of justice and you are entitled to a benefit for that, even though the benefit is less than if your guilty plea was entered at an early stage.  The utilitarian benefit of your plea is enhanced by the fact that the Worboyes’[1] considerations are engaged.  The Worboyes discount is underpinned by a desire to reduce the COVID related trial backlog. Your belated plea did little to achieve that and any engagement of the Worboyes principles only amount to a very modest sentencing benefit.

[1]        Worboyes v R [2021] VSCA 169.

15It is acknowledged by your counsel that the offences of trafficking are serious. Trafficking cocaine is the most serious charge on the indictment, given that the quantity seized amounts to approximately one third of a commercial quantity.  It is also approximately 56 times the amount prescribed for a traffickable quantity.  Clearly, this was not a low level of drug trafficking to solely fund your own drug use.  This is a substantial quantity of cocaine and your overall offending must have been motivated by a financial benefit. The harmful effects that flow from the distribution of drugs of dependence on our community are well known.  There is no dispute that the possession of ketamine was for your own use.

16I do not assume that the summary offences relating to the proceeds of crime are a product of the trafficking offences that you have admitted by your plea.  However, the total amount of money seized is significant and is suspected as being derived from the business of criminal activity.  They amount to serious examples of this offence.

17Both you and your de facto partner were charged with a number of offences in relation to this incident and your relationship ended.  Ms Glover pleaded guilty in the Magistrates’ Court to the possession of cannabis and to negligently deal with proceeds of crime, namely $68,810.  She did not have a criminal history and was respectively fined without conviction and placed on a 12 month adjourned undertaking with conditions, without conviction.  She made a statement to police and agreed to give evidence in your case.  In light of your circumstances, the disparity in your criminal history and the relevant offences to which you have pleaded guilty, the principle of parity has no practical application in this case.

18At the time of your offending, you were aged 23 years.  You are now 25 years of age and will be sentenced as a youthful offender.  It is accepted by your counsel that the impact of your youth and the primacy to be given to rehabilitation should be reduced to a moderate degree, having regard to the nature of the offending and your criminal history.  I agree that that these factors are not extinguished.

19You have two outstanding criminal matters that are listed in the Magistrates' Court.  You have been charged with failing to report within the specified period while on bail on one occasion and intend to admit that offence.  You also have been charged with breach of an intervention order, by contacting your co-accused in March 2023 and will contest these charges.  I do not take these matters into account when determining the appropriate sentence.

20Your case has been hanging over your head for more than two years.  Regrettably, it could have been dealt with in a more timely way, had the matter resolved earlier to the current charges.  While it may have been dealt with summarily, that did not occur and was not sought in this case.  The delay is not excessive and is primarily as a result of your intention to run a trial in this matter.  I accept that this period of time has resulted in a source of anxiety for you.  You have used the intervening period to undertake treatment, have not re-offended in a similar manner and have made steady progress in your rehabilitation. 

21You have admitted three prior appearances in court.  On 23 October 2013, you pleaded guilty to four offences in the Children’s Court and were placed on probation without conviction, for a period of six months.

22On 15 June 2017, you pleaded guilty in the Melbourne Magistrates’ Court to three offences, including trafficking in ecstasy.  You were convicted and placed on a 12 month community correction order (CCO), with conditions including 200 hours of community work, supervision and therapeutic treatment for drug, alcohol and mental health issues.

23On 10 March 2020, you pleaded guilty in the Melbourne Magistrates’ Court to recklessly cause serious injury, and affray.  You were convicted and placed on a three-year CCO, with conditions including 300 hours of community work, supervision and therapeutic treatment for drug, alcohol and mental health issues.  The order included specific conditions that you undergo psychiatric review every six months and attend a psychologist monthly.  You also pleaded guilty to possess cocaine and possess GHB and were convicted and placed on a three-year undertaking to be of good behaviour, with the same specific conditions.  The orders were in place for approximately 18 months prior to the current offending.  The breach of the orders is an aggravating feature of your conduct and it is of concern that your re-offending occurred while you were subject to the orders for a lengthy period.  I am told that the contravention of these matters is yet to be dealt with in the court, although you have now completed the hours of community work and treatment programs in the CCO.

24I turn now to your personal circumstances.  You were born in February 1998 and raised in Templestowe.  You are the third in a sibship of three.  Members of your family have been present in court, including at your plea hearing.  You are most fortunate to maintain their love and support.

25Your parents separated when you were eight years of age, after which you resided with your mother until you were 12 years old.  You then moved to live with your father, where you remained until you turned 21.  I am told that the breakdown of your parents’ relationship was very upsetting for you and an extremely destabilising event in your life. 

26You attended primary and secondary school in the local area.  You were disinterested in school, misbehaved frequently, and had mental health issues.  You managed to complete your VCE in 2016. 

27You describe a history of mental health problems.  These difficulties, and the conflict they created in your life, triggered your use of alcohol and illicit substances, which commenced when you were aged between 12 and 13 years. You started to use a variety of illicit drugs as a form of self-medication from the age of 14 years.  Through your ongoing counselling, you have come to understand the counterproductive and detrimental cycle of substance abuse that you previously engaged in.

28At the age of 17, when you were in Year 11, you presented to the Emergency Department of the Box Hill Hospital, in the context of a psychotic episode.  The acute nature of your psychological and substance-related issues resulted in your being admitted to the adolescent unit as an involuntary patient for several days.  The discharge summary describes that you presented with psychotic symptoms and were seeing shadows, believed people were in your house and had previously called police multiple times to ensure your house was safe.  Ongoing psychiatric treatment was recommended and you were placed on quetiapine.  Your psychotic presentation appeared to relate to amphetamine use and lack of sleep.

29After leaving school, you began a productive period of work between the ages of 18 and 21 years, which included employment in various charity organisations.  Prior to commencing your second CCO, you were seeing a psychologist and your mental health had stabilised.  You were not abusing drugs and were employed.  You commenced your relationship with your co-offender.  You moved to work in a role in IT, which continued until you lost your job in March 2020.  I am aware that COVID-related restrictions were in place at that time.  The effect of the restrictions, including the rolling lockdowns and ensuing isolation, had a severe impact on you.  You were unable to find alternative employment and struggled significantly during the pandemic.  You were also undergoing significant relationship issues at the time.

30You relapsed into the abuse of drugs and alcohol on an almost daily basis.  Your relapse reached acute levels, providing context for the current offences.

31You assert that you have not used drugs since your release from custody.  A large number of drug screens collected between January 2022 and October 2023 confirm that you have been drug free.  You have recently engaged in training with a friend of yours, who is a chef.  You hope to start your own food van catering business upon your release.

32Your treating psychologist, Mr Yiorgo Sgourakis, has provided a report to the court, dated 6 November 2023.  He has engaged with you sporadically since October 2019.  Your sessions with him have varied between fortnightly and monthly, although you had minimal contact during COVID-related lockdowns and while you were on remand. 

33Mr Sgourakis notes:

·        You have experienced anxious and depressive symptomatology throughout the period that he has worked with you.

·        These issues have been exacerbated by several factors, including COVID-related lockdowns, drug and alcohol use and an erratic relationship with your partner.[2]

·        You have taken medication for an extended period, being diazepam for anxiety and Seroquel, which is both anti-psychotic and for depression. 

·        At the time of the current offending, you had relapsed in your illicit substance and alcohol use.  This contributed to your poor state of mental health at the time, as well as poor decision making, culminating in the incident which is now the subject of these proceedings.

·        Since your release from custody, you have refrained from illicit substance use.  You have also disconnected from a number of peers, who you believe had a negative influence on your behaviour in the past.

·        Recently, you have become more positive about your future.  This appears to have coincided with an improvement in your mental health and your general presentation. 

·        Your insight into your current offending has been evident, in that you have actively worked towards addressing the triggers that you now recognise contributed to your offending behaviour. 

·        You have achieved significant personal development since your release from custody, including refraining from offending and illicit substance use throughout this period.

·        Your recent progress indicates your positive prospects in terms of rehabilitation.  You require regular access to ongoing psychological support to assist you to work through your psychological issues. 

·        A term of imprisonment would have a detrimental impact on your mental health.

[2]        Your partner is your co-accused.

34At the request of your solicitor, you participated in an assessment to determine your psychological functioning, with Ms Gina Cidoni, psychologist.  She has provided a report for the court, dated 9 November 2023.  Your personal history and circumstances have been summarised in the report.  Ms Cidoni has made the following observations and findings:

·        You meet the diagnostic criteria for Generalised Anxiety Disorder, Attention Deficit Hyperactivity Disorder (ADHD) and Substance Abuse Disorder (in sustained remission).

·        Your substance use played a significant role in shaping your behaviour at the relevant time.  It is likely to have had a profound impact on your decision making, judgement and impulse control.

·        ADHD can significantly impact your decision-making abilities, leading to impulsive choices and a tendency to act without fully considering the consequences.  I note that you have not sought to rely on ADHD as having a causal connection to your offending behaviour.

·        Given your age, your brain is still developing, particularly in areas associated with impulse control and decision making.

·        In light of your age and psychological profile, you are someone who has struggled to undertake careful deliberation, particularly when facing complex decisions and in high-pressure situations. 

·        Your risk of re-offending can be assessed as falling within the medium range.  Your history of substance use and your mental-health conditions, if not effectively managed, can both increase the likelihood of re-offending. 

·        Your father has been a consistent and supportive presence in your life since your release from custody.  This support can serve as a protective factor against re-offending.

·        Your cessation of drug use and engagement in treatment reflect your commitment to addressing your mental-health concerns and managing your emotions, which can act as a protective factor.

·        Your insight into your current situation and mental state was good, and your judgement was also good.

·        It is important to maintain your mental-health support and sobriety coaching to reduce your risk of re-offending.  Management of symptoms for ADHD should also be investigated.

·        The impact of imprisonment on you is a complex issue:

'[Your] mental health conditions may be disproportionately impacted by imprisonment compared to someone without these conditions. Furthermore, there is a serious risk that imprisonment could have a significant adverse effect on [your] mental health, potentially exacerbating [your] symptoms and making it too challenging for [you] to cope effectively.’[3]

[3]Paragraph [96]

35Ms Cidoni gave evidence at court on 24 November 2023.  She confirmed:

·In custody, you are unable to access medication for ADHD.  Further, regular psychotherapy treatment is unlikely.  You may experience issues that weigh more heavily on you, if untreated.

·Your general anxiety is a constant, chronic and persistent condition.

·Overall, the custodial environment becomes more challenging for you and leads to a significant adverse impact on your mental health.  Imprisonment will weigh more heavily on you than someone without these conditions.

36Your counsel relies on the submission that limbs 5 and 6 of Verdins[4] are enlivened, being hardship in custody and a risk of deteriorating mental health.  After hearing the evidence of Ms Cidoni, the prosecution does not dispute this submission.  I accept that a custodial sentence will weigh more heavily on you than for someone without your mental conditions, particularly as you have never been sentenced to a term of imprisonment before.  I also accept that there is a risk that there may be an adverse effect on your mental health, while in custody.  I accept that the fifth and sixth limbs of Verdins are enlivened and I take these factors into account.

[4]        R v Verdins (2007) 16 VR 269.

37You have not previously been formally diagnosed with ADHD.  Ms Cidoni recommends that your symptoms should be investigated and managed.  It is not submitted that the first limb of Verdins, which relates to the reduction of your moral culpability, is applicable, as there is no causal connection between this mental health issue and the offending.  Your mental health circumstances are, however, relevant when considering your general circumstances. 

38Five character references have been tendered on your behalf from your family members and friends, some of whom were present at your plea hearing.  They describe you as a much-loved and supported person, who has undergone significant stress as a consequence of your current offending, given the uncertainty of your future.  You have changed your association with others and your general lifestyle.  You have worked hard to turn your life around and hope to continue on a more positive path.  You regret the choices you have made that led to your involvement in drug trafficking and have been genuinely committed to making amends in your life.

39Your mother has provided a letter to the court, dated 10 November 2023.  She describes the time you spent on remand allowed you to gain some insight into the effect of your past choices.  Your parents have not wavered in their support of you and will continue to do so in the future.  You intend to continue to reside with your father, upon your release.

40Your plea of guilty demonstrates that you have finally accepted responsibility for your offending and you have expressed belated regret for your actions.  Over the past two years, you have developed insight into your problematic behaviour.  If you are able to manage these issues upon your release, it will reduce your risk of re-offending.  I consider that, although it was not immediate, you have developed remorse, and I take that into account in your favour. 

41Your progress over almost two years suggests that your prospects may have improved.  It is in your own interest to continue on this path when you return to the community.  Clearly, remaining drug free is a critical factor when considering your capacity to rehabilitate.  You have ongoing prosocial support which will certainly assist you to achieve your goals, although maintaining a lifestyle that is free of substance abuse is critical if you are to be successful.  Notwithstanding that this incident occurred while subject to a CCO and an adjourned undertaking, I do believe you have demonstrated that you have reasonable prospects of successful rehabilitation.

42The time you spent on remand were subject to more onerous custodial conditions, including 14 days in isolation in quarantine.  The more onerous conditions within the custodial environment as a result of the COVID-19 pandemic are relevant and these hardships justify a sentencing benefit, particularly as this was the first time you were incarcerated.  Overall, you were on remand for 51 days before bail was granted.

43While it has been conceded that a term of imprisonment will be imposed in your case, your counsel has submitted that it would be appropriate to impose a lengthy CCO as part of the sentencing disposition here.

44In other words, your counsel submitted that a composite sentence involving the time you served on remand plus a stern CCO is appropriate.  The maximum term of imprisonment available for a combination disposition is 12 months.

45The prosecution submits that a term of imprisonment with a non‑parole period is appropriate.

46You have been interviewed by a Corrections officer and found to be a high risk of general re-offending.  You engaged in a positive and respectful manner. You demonstrated remorse and insight into your behaviour, reflecting that you are not ‘happy or proud of it’.

47You were also assessed by the Mental Health and Advice Response Service.  You were polite, cooperative and engaged well.  You are currently adherent to your daily anti-psychotic medication and have positive benefits from your psychological counselling which you intend to continue.

48You presented with appropriate insight and judgement into your mental health.  You are stable in your mental state.  You reported that you have been sober for two years.  Given your complex history of mental health and emotional issues exacerbated by poly substance abuse and a chaotic lifestyle, ongoing treatment for your psychological issues, referral to a psychiatrist and a review from your GP is recommended.

49You are willing to comply with a CCO and have been found suitable.

50After careful consideration, I am unable to accept your counsel’s submission as to sentence.  Even if a CCO was imposed in combination with the maximum term of imprisonment of 12 months, given the objective gravity of your conduct in the context of your criminal history, I consider that this submission is unrealistic.  I am obliged to impose a sentence that is proportionate to your criminal conduct and consider that a head sentence of more than 12 months is required.

51I consider that general deterrence must be given significant weight in the sentencing process, as must the factors of denunciation and punishment.  The community expects that those who elect to engage in drug trafficking must be punished and denounced for their offending.  Specific deterrence still has some role to play in light of your criminal history, notwithstanding the real effort you have made to rehabilitate over almost two years.

52I take into account the maximum penalty for these offences and current sentencing practices.  I have considered the cases to which I was referred in the course of the plea.  The principle of totality is relevant and I have taken care not to doubly punish you for these offences.  I accept that supervision upon release will be of benefit to you and the community and I intend to impose a lengthy period on parole.

53I have endeavoured to tailor your sentence to ensure it is proportionate to your overall criminal conduct.  Balancing all of these factors as best I can, I sentence you as follows.

Charge	Sentence	Cumulation
1	Traffick cannabis	9 months’ imprisonment	Nil
2	Traffick cocaine	15 months’ imprisonment	BASE
3	Possess ketamine	14 days’ imprisonment	Nil
Summary charges 9, 12	Deal with property suspected of being the proceeds of crime	10 months’ imprisonment, aggregate	5 months

54Given the circumstances of the summary offences, I consider that they are intertwined and, in effect, form part of one course of conduct. I have imposed an aggregate sentence for these offences.

TES: 20 months’ imprisonment

NPP: 10 months

PSD: 68 days reckoned as served

Disposal of the property and drugs seized.

Forfeiture of the cash that is subject of the summary offences.

6AAA: 2 years and 4 months’ imprisonment with a non-parole period of 19 months.

55MR CAMERON:  As Your Honour pleases.

56MR TOVEY:  May it please the court.

57HER HONOUR:  Mr Tovey,  I will leave the Bench and give you a chance to speak with your client, before the link cuts off.

58MR TOVEY:  Yes, thank you, Your Honour, I'd be grateful for that.

59HER HONOUR:  All right.  Thank you very much.  I will now leave the Bench.

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