Director of Public Prosecutions v Harris (a Pseudonym)

[2021] VCC 2145

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01599

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY HARRIS (a Pseudonym)  

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JUDGE:	Her Honour Judge Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2021
DATE OF SENTENCE:	17 December 2021
CASE MAY BE CITED AS:	DPP v Harris (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 2145

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – remitted after successful conviction appeal – trafficking in a drug of dependence – commercial quantity – Guilty plea – General deterrence – Improvement in prospects for rehabilitation – Engagement in education programs – Refugee of Iraqi origin – violent and disadvantaged background – History of substance abuse – Extensive criminal history – Prospect of deportation at the completion of sentence

Sentence:                  Total effective sentence of eight years’ imprisonment – Non-parole period of six years’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Pillai	Office of Public Prosecutions
For the Accused	Mr C. Winneke QC with Mr C. Edwards	Valos Black Lawyer

HER HONOUR:

1Seven years ago today you, Anthony Harris,[1] were arrested and charged, with four other men, for trafficking in heroin.  After a fragmented committal hearing, you and three others were committed for trial to this court in April 2016.

[1]        A suppression order prohibiting publication of information identifying the offender until 12 April 2024 has previously been made.

2You spent some of that time, before being committed to this court, on remand, some on bail and some in immigration detention. You had been released on bail, but after some time at liberty, your visa was cancelled, you were arrested when reporting on bail and taken to Christmas Island.   Eventually, after what appears to be a standoff between criminal justice and immigration authorities, you chose a further remand in custody over migration detention, and were returned to custody in Victoria.

3It would appear that the reasons for cancelling your visa at the time you were on bail for these serious charges, was because of your already extensive criminal history.

4Your trial on these charges was first listed in 2017.  Protracted pre-trial hearings, and an interlocutory appeal led to the trial not being reached in 2017 and being adjourned to the following year.  Throughout 2018 further applications and delays, due mainly to matters raised by your co-accused, took up most of the year.  By November, your three co-accused had pleaded guilty, that is the three who had been committed with you to this court, and your trial commenced.

5In December 2018, 10 days short of four years after your arrest you were convicted of all charges on your indictment.  That is one charge of traffick in heroin and one charge of traffick in a large commercial quantity of heroin.

6Delays continued to beset the proceedings. Although your plea hearing was originally listed, along with that of your co-accused for mid-February 2019, it was not actually heard until April 2019.  You were not sentenced until September of that year. The court then imposed a total effective sentence of 12 years with an eight year non-parole period.  Of that, an 11 year sentence was imposed for the large commercial quantity trafficking charge.  A four year sentence was imposed on the trafficking simpliciter charge with 12 months cumulation.  But by the time you were sentenced, nearly five years after your arrest, you had spent all but a little short of  six months in custody or migration detention.  Clearly the time you have spent in migration detention, although not able to be formally counted as days of pre-sentence detention should have been, and was, as I understand, taken into account in a general sense in fixing that overall sentence.

7You appealed against your conviction.  The appeal was allowed, and you were remitted for trial, in July 2021.  By then, you had spent a further 18 months in custody.

8Your legal representatives and the Crown immediately entered into discussions, and within six weeks of your being remitted to this court, a successful negotiation of the charges had been resolved.  You pleaded guilty to one charge of traffick simpliciter, the same charge and the same circumstances as you had been convicted and sentenced for before His Honour Judge Trapnell.  And in substitution for the charge of large commercial quantity trafficking, of which you had been convicted originally, a plea of guilty to a charge of commercial quantity trafficking was accepted.

9It was common ground on the plea hearing before me, that the circumstances, both of the trafficking charge, simpliciter and of what was originally large commercial quantity and by the time it came before me, commercial quantity trafficking in heroin, were the same and were not contested.  The only difference was that by accepting the plea of guilty to the charge of commercial quantity trafficking as opposed to large commercial quantity trafficking, it was accepting that you could not be fixed with knowledge to the requisite standard of the quantity, that is a large commercial quantity of heroin.  So there was no difference in the facts and the circumstances.  The difference was in the requisite knowledge of the quantity.

10Your plea hearing after your remitter and pleas of guilty was initially listed for 19 October this year.  That date was vacated because you withdrew your instructions from the lawyers who had been acting for you and retained new lawyers.  They needed some time to get on top of the materials and then there was some struggles finding dates that were convenient to the parties.  And so it is on the last sitting day of the year and seven years to do the day since your arrest, that you come to be finally sentenced for these charges.

11The charges to which you have pleaded guilty are charges of two separate transactions of trafficking.  It was common ground that you were part of a larger commercial sophisticated criminal enterprise of trafficking in heroin.  It was common ground that you were  what was described by His Honour Judge Trapnell  as a foot soldier in the syndicate. You sat below the more senior people who also came to be sentenced, and who were described by Judge Trapnell and the Court of Appeal, as at the middle level of the trafficking group.  It was a significant enterprise.  And you role in it was one of a trusted foot soldier, entrusted not only to handle just under half a kilogram of heroin in respect of the first charge, and just over a kilogram of heroin in respect of the second charge, but also to handle, deliver and take possession of the money.  And that was a substantial amount of money in respect of Charge 2, the commercial quantity charge.  The amount was over $220,000.

12Your DNA was found on the packaging in relation to both parcels of heroin, fixing you again with your knowledge of rough quantities in which you were dealing and the sort of volume in which you were dealing.

13You were not simply called to take a courier role to deliver heroin from one place to another.  The telephone intercepts, surveillance material and other evidence reveals that you were actively involved with those above you in the hierarchy and those of the same level or below you in the hierarchy in moving this heroin around.  But you come to be sentenced not as part of involvement in the continuing course of conduct, but in respect of two discrete transactions a few weeks apart in late 2014.

14I adopt without repeating the circumstances of the offending and of your role in it, as described in the reasons for sentence of His Honour Judge Trapnell and also in the reasons of the Court of Appeal.

15It is clear that on resentencing, you must receive a lesser sentence than that originally imposed when you were convicted after trial, not only in respect of Charge 2, where you are now being dealt with for a lesser offence, but also in respect of Charge 1.  Large commercial quantity trafficking carries a maximum sentence of life imprisonment as opposed to commercial quantity trafficking which attracts a maximum sentence of 25 years' imprisonment.  Those maxima are of course one of the yardsticks by which the seriousness of the offending comes to be measured.

16So save for the fact that you were sentenced by His Honour Judge Trapnell after trial, and you now come to be sentenced before me after guilty pleas have been entered, and save for, so far as Charge 2 is concerned, that your criminality in respect of knowledge of the quantity, is knowledge that it is a commercial quantity not a large commercial quantity.  The facts and circumstances of the offending are the same as that before His Honour Judge Trapnell and I accept without repeating them.

17It is also common ground that your personal circumstances and the relevant sentencing principles as identified before His Honour Judge Trapnell, are applicable here.  And so I come to sentence you against a common factual background and with common sentencing principles, but with that added layer of dealing with the guilty plea to one lesser, and one identical charge as you were dealt with before, taking into account your changed circumstances since the original sentence.

18Your sentence must be less than the sentence imposed by His Honour Judge Trapnell for the following reasons.

19First, because so far as Charge 2 is concerned, you have pleaded guilty to a lesser charge which carries still a 25 year maximum but a lower maximum than the life imprisonment maximum for large commercial quantity.

20Second, because you pleaded guilty to that lesser charge and the other charge of trafficking simpliciter, for which you were tried, your guilty pleas in respect of both charges entitle you to a reduced sentence.

21Third, since March of last year, when COVID first hit this country, imprisonment has been more onerous because of it, and it will continue to be so for an uncertain time into the future.

22There are other factors too which I consider should be taken into account in your favour.  The delay in finally sentencing you has been extraordinary and oppressive.  Whilst the delay up to the time of original sentence was taken into account by His Honour Judge Trapnell, its effects are compounded by the further delay since then.

23You are a different man from the man who was arrested seven years ago, and a different man from the man who was sentenced by Judge Trapnell over two years ago.  There is evidence of rehabilitation.  You have engaged in significant educational programs, obviously taken advantage of the opportunities available to you.  That is particularly impressive because you are poorly educated and had limited and poor functional English, limited and poor functional Arabic too from what I was told and had to, in effect, learn proper English, in order to engage in education whilst in custody.  But you have done that.  Your English is fluent, or much more fluent, and you have been able to engage in programs and do meaningful things to occupy your time.

24You have a long history of offending, as I have noted, and a long history of substance abuse.  You have returned 37 clean drug screens since your time in custody.  Again, that shows evidence of rehabilitation, of addressing your substance abuse, which had in itself, a significant role to play in your offending behaviour generally and this offending.

25You have been assessed by the psychologist, Ian McKinnon, on a number of occasions since you were first remanded in custody in 2015.  In his most recent assessment in 2021, for the purposes of this plea he opined that you have learnt since your time in custody, to appreciate the value of your family and you have rediscovered your moral compass.  That is particularly important because shortly before your arrest your only child, a boy now seven, was born.  You have had very little time to spend with him before whilst you were at liberty and since COVID you have not even been able to see him or hold him.  He has grown up fatherless as you yourself did.

26The rediscovery of your moral compass and appreciation of the value of your family are significant matters which indicate you have indeed travelled a considerable way from the person who was prepared to engage in the drug trafficking that you engaged in, that brings you now to be sentenced by me.

27So the way in which you have applied yourself to improving yourself, improving your English, to re-establishing a proper relationship with your wife and to try and have one to your son and to rediscover your moral compass, to address your substance abuse and to give yourself skills that can be used to engage in gainful employment upon your release, are all matters that show that whatever prospects of rehabilitation might have been thought you had at the time of sentencing, you have shown that you have much better prospects than might have been thought then, having regard to your criminal history and your demonstrated capacity to carry through on those improvement programs.  Therefore, your prospects for rehabilitation should be regarded as brighter than they were at the time of sentencing.

28I also take into account the fact that your time in custody has been in management for the whole time, that is much more oppressive than mainstream imprisonment and even more so having regard to COVID.

29There must be, although not strict parity, a fair proportionality between your sentence, and the sentences imposed on your co-offenders.  And as I have discussed in the course of this plea hearing, that provides a relatively limited range for the re-exercise of the sentencing discretion.

30The matters that I have canvassed to date, all indicate that the new non-parole period should be no longer than the time that you have already served.  The delay in finalising the matter means that in my view, you have already missed out on the opportunity to be considered for eligibility for parole or for eligibility for participation in courses and programs designed to assist prisoners, particularly those who have spent a considerable time in custody, to prepare for parole.

31As if this uncertainty about your future is not enough, there is a further oppressive circumstance which must be taken into account.  You are not an Australian citizen and as I have already noted your visa has been cancelled whilst you were awaiting trial on these matters. Whenever you are released from imprisonment, you will not be at liberty.  You will be transferred to immigration detention, and I am told that you have accepted with resignation that you will, or will likely be deported.

32Not only does that mean you will be separated from your wife and son, who will remain here, and from your family who are now here, but deportation, although highly likely, will not be immediate.  You are an Iraqi citizen.  You do not have a passport, or travel papers.  The time for the two countries to comply with formal proof of identity and for travel permission is uncertain.  And when COVID and the political and civil state of affairs in Iraq are factored in, you are facing an uncertain, and indefinite period of migration detention before you are finally removed from this country.

33On returning to Iraq, you will struggle.  You have not lived in Iraq since you were about eight.  You were born in Iraq and grew up until the age of eight in Iraq.  Your father, who was politically active and opposed the regime of Saddam Hussein was imprisoned for most of your life.  Upon his release the family fled to other Middle Eastern countries, Jordan, Syria and ultimately Lebanon.  Your spoken Arabic was quite good but your schooling in the Middle Eastern countries was seriously disrupted by war and refugee issues.  And I am told that your Arabic has deteriorated as you have spent more time speaking English and improving your English language skills in custody.

34Having left Iraq as an eight year old and having arrived in Australia by the time you were 14, you are not at all culturally enmeshed in the life of Iraq and it will indeed be a considerable struggle.

35You and your wife have apparently made a decision that you will not ask her to accompany you, and she at the moment is not inclined to accompany you or to bring your child to Iraq.  That means that you will be alone and separate from the people you have only recently learnt to properly value.  That is a considerable additional burden in my view.

36It goes without saying that given the seriousness of the charges that you face, that general deterrence is the most significant factor.  People who engage for gain, as it appears you did, in significant heroin trafficking, whether as a foot soldier or whether further up the hierarchy, must understand that when detected and punished they will face significant punishment, and that others who think to do the same will appreciate that they will face considerable punishment.  It is a pernicious drug and it causes terrible, terrible harm in our community.  People who lend themselves to it and lend themselves to it for profit must be punished.  Denunciation and just punishment area also significant sentencing factors.

37I accept Mr Winneke's submissions that in your circumstances the weight to be given to specific deterrence, notwithstanding your appalling criminal history, is much less because of your changed circumstances and because of what's likely to happen to you upon your release.

38I am not going to set out in detail the matters that I have discussed with Ms Pillai and Mr Winneke in the course of the plea.  The transcript will have to stand as record for that.  But the discussion should be understood when those who are looking at my sentencing reasons do so, that the discussions have informed the brief reasons that I am now giving.

39Similarly, these reasons must be read in conjunction with His Honour Judge Trapnell's reasons and the reasons of the Court of Appeal in allowing your appeal and remitting you to this court for re-trial.

40There is, as I have said, a very limited and circumscribed sentencing discretion for me.  I have regard to the sentences imposed upon the co-offenders.  They provide, not strict parity, but a very clear sense of the benchmarks and the again limited parameters within I must work.

41There are, it would appear, some differences between you and the co-offenders who appear to be closest to you, that is Mr McKenzie and Mr O’Brien,[2] in terms of role.  You may well sit a little higher than Mr McKenzie and Mr O’Brien because of the role you had, in being entrusted with money as well as moving the heroin and because some of the intercepts show that you were at times giving them instructions.  But ultimately I do not think that matters very much.  Fine distinctions between roles or fancy names do not make that much of a difference.  You were a willing, active, enthusiastic participant in facilitating the movement of heroin, as were the other two.  And so when I compare the sentences imposed on them, I take into account their somewhat earlier pleas of guilty, court door before their first trial.  And of course for them, that they pleaded guilty to charges relating to large commercial quantity, but where the facts and circumstances were the same, the only difference being the finding in relation to the requisite knowledge for the large commercial quantity as opposed to commercial quantity.

[2]        Pseudonyms used as a result of the suppression order referred to in footnote 1.

42So whilst I consider the sentence for Mr McKenzie on your commercial quantity charge to be somewhat of a benchmark, I do not consider it binds me.  His personal circumstances also seem to be significantly different and perhaps more deserving of compassion or sentence reduction than yours.

43On the two charges, therefore, to which you have pleaded guilty you are convicted.

44On Charge 1, of trafficking simpliciter, you are sentenced to be imprisoned for a period of three years.

45On Charge 2, of trafficking in a commercial quantity of heroin, you are sentenced to be imprisoned for a period of seven years.

46I direct that one year of the sentence on Charge 1 be served cumulatively upon the sentence on Charge 2.  That makes a total effective sentence of eight years and I fix the period of six years as the time that you must serve before being eligible for parole.

47I declare that you have spent 2,339 days in presentence detention and direct that that be counted and reckoned as part of the sentence already served.

48I further declare, pursuant to s6AAA of the Sentencing Act that but for your pleas of guilty I would have imposed a total effective sentence of 10 years' imprisonment and fixed a period of eight years as the time that you would have had to have served before being eligible for parole.

49Any further orders required to be made?

50MR WINNEKE:  No, I don’t believe so, Your Honour.

51HER HONOUR:  All right.

52MS PILLAI:  No, Your Honour.

53HER HONOUR:  Do you want us to leave the link, Mr Winneke, so you can speak to your client after I've left the Bench?

54MR WINNEKE:  If that would be convenient I'd appreciate that, Your Honour, thank you very much.

55HER HONOUR:  We will do briefly.

56MR WINNEKE:  Thank you, yes.

57HER HONOUR:  Thank you.  Thank you, adjourn.

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