Director of Public Prosecutions v Harris (a Pseudonym)
[2019] VCC 1546
•20 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY HARRIS (a Pseudonym) |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 & 17 December 2018, 14–15 February 2019, 12 April 2019 | |
DATE OF SENTENCE: | 20 September 2019 | |
CASE MAY BE CITED AS: | DPP v Harris (a Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1546 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Mid-level offending – Pleas of not guilty – Convictions at trial – Large scale syndicate – Trafficking in a drug of dependence – Large commercial quantity – Organiser of drug couriers – Encrypted telecommunication – DNA evidence – High moral culpability – Extensive prior criminal history – Refugee of Iraqi origin form violent and disadvantaged background – Drug abuse – Prospect of deportation at the completion of sentence – Lack of true contrition and remorse – Specific deterrence – Supportive family – Cooperation with police – Fined for procession of fireworks
Legislation Cited: Sentencing Act 1991 s 3(1), s 5(4)
Cases Cited:R v Nobile [2006] VSCA 211 – R v Henderson-Drife [2007] VSCA 211 – Djordjic v The Queen [2018] VSCA 227 – Gregory v The Queen 268 A Crim R 1 – Adams v The Queen (2008) 234 CLR 143 – Fernando v The Queen [2017] VSCA 208 – Arico v The Queen [2018] VSCA 135 - Nguyen v The Queen [2019] VSCA 184 – R v Muanchukingkan (1990) 52 A Crim R 354 – R v Le Cerf (1975) 13 SASR 237 – DPP (Cth) v De La Rosa (2010) 79 NSW LR 1 – R v Olbrich (1999) 199 CLR 270 – Veen v The Queen (No 2) (1988) 164 CLR 465 – Underwood (a Pseudonym) v The Queen [No 2] [2018] VSCA 87 – Sahhitanandan v The Queen [2019] VSCA 115 – R v Verdins [2007] 16 VR 269 – Allouch v The Queen [2018] VSCA 244 – Loftus v The Queen [2019] VSCA 24 - Barbaro v The Queen (2012) 226 A Crim R 354 – DPP v Dalgliesh(a Pseudonym) (2017) 262 CLR 428 – Giretti v The Queen (1986) 24 A Crim R 112 – Dawid v DPP [2013] VSCA 64
Sentence: Total effective sentence of 12 years’ imprisonment with a non-parole period of 8 years’ imprisonment. Fined $500 for procession of fireworks.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Pillai | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr J P Siggins Ms Z Garde Wilson | Garde Wilson Lawyers |
HIS HONOUR:
1 Anthony Harris[1], you have been found guilty by a jury of one charge of trafficking in a drug of dependence (Charge 1) and one charge of trafficking in a drug of dependence in not less than the large commercial quantity (Charge 2) (“the first Indictment”). You have also pleaded guilty on a separate indictment (“the second indictment”) to one charge of possession of an explosive substance, namely fireworks, without lawful excuse.
[1] A pseudonym used to protect the identity of the offender whose personal safety may be at risk.
2 The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment and the maximum penalty for trafficking in a drug of dependence in not less than a large commercial quantity is life imprisonment. The maximum penalty for possession of an explosive substance is five years’ imprisonment.
The facts
3 For the purposes of sentencing you, I accept the following facts in relation to the drug trafficking charges which are before me. The Joint Organised Crime Task Force, consisting of members of Victoria Police, Australian Federal Police, The Australian Crime Commission and Australian Customs and Border Protection Service, conducted an investigation code named Operation Monsoon,[2] which was an investigation into the syndicated trafficking of large commercial quantities of heroin.
[2] The real name of the operation has been changed to protect the identity of the offender whose personal safety may be at risk.
4 In the trial it was alleged, and I accept the jury found, that you, pursuant to an agreement, arrangement or understanding with Michael Jones, John Alexander, Robert McKenzie, Patrick O’Brien and Stephen Williams,[3] were involved in the commission of the two offences on the first indictment on 19 November 2014 and 15 December 2014.
[3] These names are pseudonyms used to protect the identity of the offender whose personal safety may be at risk.
5 Charge 1, committed by you on 19 November 2014, involved an amount of heroin just short of 500 grams. Charge 2, committed by you on 15 December 2014, involved just over a kilogram of heroin. The charges arise out of two sales of heroin by the syndicate to an Victoria Police covert operatives.
6 In the Summary of Prosecution Opening for Plea dated 17 January 2019,[4] the Crown described your role as having the function of “facilitator”; by which was meant you were responsible for engaging the couriers used to transport heroin to the location where the drug transaction was to occur.
[4] Exhibit P1.
7 According to the prosecution opening, which I accept, as soon as an order was placed for heroin, Jones would immediately seek your assistance to organise for a courier to transport the heroin for the purposes of the sale. The Crown allege that you were the first point of contact for Jones with regard to organising the drug couriers.
8 In the Supplementary Further Prosecution Submissions on Sentence dated 1 March 2019,[5] the Crown provided further submissions in relation to your role. They refer to you as being a “facilitator” in relation to the organisation of couriers. It was also noted that there was an inference open to me to draw that you took possession of the $220,000 that was the subject of the transaction on 15 December 2014 from Jones. The Crown submitted this showed the level of trust that was placed in you by the syndicate.
[5] Exhibit P3.
9 The Crown submission continued by noting references made during the plea by your counsel, where he variously describing your role as being that of “transport supervisor”, “section leader” and “lieutenant colonel”. The prosecution submits that you were a “middle man” who coordinated the couriers for the syndicate in relation to the two transactions for which you fall to be sentenced.
10 Your counsel provided answering written submissions which were filed on 21 March (Exhibit H6).[6] The submissions note that your only involvement was limited to the two transactions which are before me. This is obviously the case. It is further noted that you have not been charged with possessing proceeds of crime, and it is said that there is no inference open that there was a “level of trust” in you by the syndicate. I do not accept this is so. In my view, it was clear that you did take charge of the $220,000 the subject of the second transaction when Jones handed it to you in the car park, as I will outline later. This does show that your involvement went beyond simply organising couriers to transport drugs.
[6] Exhibit H6.
11 Your counsel’s submissions concludes that you had a lower role than any other co-accused. I find this an unhelpful submission. It is not really a matter of how you compare with others, but rather what was your role in the syndicate.
12 I sentence you on the basis that you played your part in the syndicate in relation to these transactions, which was to organise the couriers and, in the case of the second transaction, take charge of the money that had been handed over for the drugs. This was a significant enough role in the syndicate and one which was necessary and which you were only too happy to fulfil.
13 I also accept that there was a degree of sophistication involved in your role in that Jones and you used encrypted telecommunication devices to communicate with each other.
14 Your involvement in the transaction on 19 November 2014 appears to have commenced around 7 November 2014, when you became involved with Jones in the lead-up to the drug transaction the subject of Charge 1.
15 It appears that your direct involvement in that drug transaction commenced around 5.35pm on 19 November 2014, when you had a coded phone conversation with Jones. In this conversation, you arranged for a courier referred to as “my little friend” and “the boy” to meet with Jones for the purposes of conveying the drugs to the location where the transaction was to occur.
16 The courier arranged by you collected 498.5 grams of heroin from O’Brien’s business, O’Brien Auto Repairs[7] in Epping, and delivered it to a Victoria Police covert operative in the vicinity of the Al Diwan Restaurant in North Epping.
[7] This name has been changed to protect the offender’s identity because his personal safety may be at risk.
17 Your DNA was found on the vacuum sealed bag containing the heroin, and I find that you must have had some contact with the bag of heroin at some stage during its transport from O’Brien Auto Repairs to the drop-off point, if not before.
18 I also find that the consideration for the sale of those drugs was $110,000, which was paid in cash and ultimately handed by Alexander to Jones in Memorial Avenue, Epping at about 9.00pm that day. These facts give rise to Charge 1 on the first indictment.
19 Charge 2 relates to another drug transaction involving the sale of 1 kilogram of heroin for $220,000 on 15 December 2014 to a Victoria Police covert operative. The circumstances giving rise to your involvement in this transaction are as follows. Once again, you were contacted by Jones to organise a courier for the purposes of a drug transaction. This drug transaction involved covert operative 290 “Vili”.
20 Your involvement appears to have commenced at around 5.19pm on 15 December 2014, when you received a telephone call from Jones asking you to “send the boy” to see him. You and Jones agreed to meet in 45 minutes time. The Crown alleges, and I accept, that this was code for there being a need for a courier to attend in respect of a drug transaction which was to take place that evening.
21 At about 6.28pm that day, you picked up Williams from a Caltex Service Station in Sydney Road, Fawkner. At about 7.20pm, you and Williams attended the Al-Diwan Restaurant and met with Jones and Alexander. At that location, Williams retrieved a black plastic garbage bag, which I find contained approximately 1 kilogram of heroin, from the front passenger side of your motor vehicle. Williams carried the plastic bag to the passenger side of Alexander’s motor vehicle, where he placed it inside Alexander’s vehicle. While this was occurring, you remained inside the Al Diwan Restaurant with Jones. The plastic bag containing the 1 kilogram of heroin was later placed by Alexander in the seat of covert operative 297 “Daz’s” vehicle.
22 Following the transfer of the drugs from one vehicle to the other by Williams, you and Williams left the Al Diwan Restaurant shortly after Jones left the restaurant and you travelled together in your motor vehicle.
23 The Crown allege, and I accept, that you were involved in transporting the heroin in the black plastic garbage bag. Moreover, your DNA was found on a sealed plastic bag containing the heroin, which was located inside the black plastic garbage bag
24 Once again, it is clear that you had direct involvement in the transportation of these drugs. These drugs were subsequently exchanged by Alexander with covert operative 279 “Daz” for $220,000 in cash. It was subsequently established that the black plastic garbage bag contained 1001.6 grams of heroin of approximately 60 per cent purity.
25 At 8.33pm, Jones called you on your mobile telephone to arrange for you to meet him. A short time later, you met with Jones in a service lane outside the Al Diwan Restaurant, where you took possession from Jones of a green enviro shopping bag, which I accept contained the $200,000 cash, which had been handed over to Alexander by covert operative 290 “Vili”. After obtaining the cash from Jones, you drove off in your motor vehicle.
26 Whilst you are not charged with a separate offence in relation to your possession of the proceeds of this crime, I am entitled to have regard to this matter in my assessment of your position in the hierarchy of the syndicate and the degree to which you were trusted by its members.[8]
[8] See R v Nobile [2006] VSCA 211 [8] (Nettle JA); R v Henderson-Drife [2007] VSCA 211 [13]-[18] (Whelan AJA, Chernov and Vincent JJA agreeing).
27 You were arrested at your apartment in Docklands on 17 December 2014. You did not participate in a record of interview in relation to these charges.
28 A sample taken from the seal region of the vacuum sealed plastic bag, which contained the 498.5 grams of heroin purchased by the covert operative on 19 November 2014 was analysed for DNA. I find that the evidence supports that you are likely to be a contributor to that mixed sample. I find that a similar sample taken from the vacuum sealed bag used to contain the 1 kilogram of heroin transacted on 15 December 2014 also identifies you as a likely contributor to the DNA mixture found on that bag. In my view, it follows that at some stage you handled these two bags of heroin.
29 The heroin involved in the two transactions was subsequently analysed. The heroin transacted on 19 November 2014 was found to weigh 498.5 grams and it was approximately 50 per cent pure heroin. The heroin transacted on 15 December 2014 was found to weigh 1001.6 kilograms and it was of approximately 60 per cent purity.
Possession of explosive substance
30 This charge relates to your possession of fireworks which were located at your premises on 17 December 2014 during the police search. Whilst this is not a trifling offence, it is relatively minor compared with the very serious offences for which you fall to be sentenced. In the circumstances, I am of the opinion that this offence can be dealt with by way of a moderate fine with conviction.
Offence seriousness
31 Trafficking in a large commercial quantity of a drug of dependence is a very serious criminal offence as indicated by the maximum penalty of life imprisonment, which is the highest maximum penalty in the criminal calendar. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have committed in charge 2.[9] Trafficking in a drug of dependence is also a relatively serious offence.
[9] Djordjic v The Queen [2018] VSCA 227 [68].
32 The sentencing regime for trafficking offences is quantity-based and it follows that the quantity you trafficked is a highly relevant consideration in sentencing you for these drug offences.[10] However, the amount you trafficked is not determinative of my assessment of the objective gravity of this offence.[11]
[10] Gregory 7–8, [23]–[24] (Maxwell P, Redlich and Beach JJA).
[11] Adams v The Queen (2008) 234 CLR 143; Gregory 8, [24].
33 I note that the amount trafficked by you in charge 1 was at the highest end of quantity for that offence, being only 1.5 grams short of a commercial quantity. The weight of drug you trafficked in committing charge 2, falling as it does towards the lower end of the scale for large commercial quantity, remains a relevant factor in assessing the objective gravity of your offending conduct.[12]
[12] Gregory, 7 [23]; Djordjic v The Queen [2108] VSCA 227 [69].
34 Whilst the legislation is quantity-based and not harm-based, it is nonetheless relevant to observe that grave harm is inflicted on the community by offences involving the trafficking of heroin by modern methods. The harmful effects of heroin and the seriousness of these offences have been emphasised numerous times in recent decisions in the Victorian Court of Appeal.[13]
[13] See eg Gregory ; Fernando v The Queen (2017) 268 A Crim R 26, 41 [61]; Arico v The Queen [2018] VSCA 135 [338]–[339].
35 In Gregory (a Pseudonym) v The Queen, the Victorian Court of Appeal recently held that current sentencing practice for commercial quantity trafficking is inadequate and needs to be uplifted.[14] Moreover, in Nguyen v The Queen the Court said that “there is a need for sentences for trafficking a large commercial (and a commercial) quantity of drugs to increase substantially”.[15]
[14] Gregory 24–25, [100]–[103].
[15] Nguyen v The Queen [2019] VSCA 184 [49].
36 You played a significant enough role in a highly sophisticated criminal enterprise. You were an integral part in an extensive and successful business of trafficking in heroin. The fact that your role was that of a “facilitator” or organiser of drug couriers does not entitle you to any particular degree of leniency. “Couriers and intermediaries must expect substantial sentences, because without them the trade in narcotics would collapse.”[16] Whatever descriptor is used to characterise your role must not obscure my assessment of what you actually did.[17]
[16] R v Muanchukingkan (1990) 52 A Crim R 354, 356 (Wood J). See also R v Le Cerf (1975) 13 SASR 237, 239 (Wells CJ); DPP (Cth) v De La Rosa (2010) 79 NSW LR 1, 62 [256] (McClellan CJ at CL).
[17] See R v Olbrich (1999) 199 CLR 270, 279 [19] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
37 By performing your role in the syndicate you were knowingly part of the conduit between the importer of heroin and the final buyer on the street. Your role can be characterised as being that of a willing participant at the wholesale level, albeit you were not the prime instigator or organiser of the business. Nonetheless, the business required people to perform the role you willingly undertook. In this sense your played a critical part in the success of the operation overall.
38 It appears that financial gain was your sole motivation; although, I accept there is no evidence of enrichment arising out of the present offences or a grandiose lifestyle in your case.
39 Overall, I assess your moral culpability in relation to this offending as being very high.
Personal circumstances
40 You were born and raised in Baghdad in Iraq. You are now aged 35 and were 30 years old at the time of committing these offences.
41 You are one of four siblings and your family are Shiite Muslims. Your father was a political activist against the Saddam Hussein regime and he was imprisoned in Iraq from 1984 until 1992. One of your brothers died in Iraq, before the family fled that country, travelling through Jordan and Syria, until you were eventually accepted as refugees in Australia.
42 You arrived in Australia approximately 20 years ago at the age of 14 and were subsequently granted permanent residency.
43 You struggled with schooling because of your difficulty with the English language, and left school at the age of 15, during Year 10. Mixing with unsavoury characters led you into drug use and antisocial behaviour, which is reflected throughout your extensive prior criminal history.
44 After leaving school at the age of 15, you worked briefly at a cake shop, but you have not held down employment for over two decades, apart from a brief period in 2015 when you worked as a builders’ labourer.
45 In 2005, whilst you were in custody, your family returned to Iraq. During that time, another brother died in tragic circumstances. Your family subsequently returned to Australia in 2017, and now reside here permanently. You have a sister who lives in New Zealand.
46 You are married to Rose Waugh[18], and you have a five year old son who was born in 2014. Since your remand in custody, your wife and child have resided with her maternal grandparents.
[18]This is a pseudonym name used to protect the offender’s identity because his personal safety may be at risk.
47 As far as your criminal history is concerned, this commenced with an appearance in the Preston Magistrates’ Court when you were aged 18 for a number of offences, including carrying a controlled weapon without excuse, unlawful assault, possessing goods suspected of being stolen, theft of a motor vehicle, theft from a motor vehicle, and going equipped to steal. You were convicted and ordered to serve a Community Based Order for 12 months, to perform 200 hours of unpaid community work, and to attend educational and other programs. That was in June 2002.
48 In May 2003, you were brought up for failure to comply with that Community Based Order. The breach was found proven and you were fined $200. The Community Based Order was varied for a period of nine months. You were also dealt with on that occasion for other crimes, including possessing proceeds of crime, theft, assault with a weapon and an offence of armed robbery, which must have been dealt with in the Children’s Court in March 2002. The appearance in May 2003 involved your first offending involving drugs. You were charged and convicted of possess cannabis and possess amphetamine. You were also dealt with for driving whilst disqualified. For all of this you received a Community Based Order for nine months with 50 hours of unpaid community work.
49 You were brought back once again for failure to comply with that order on 11 December 2003, when you were before the court in respect of a large number of offences, including reckless conduct endangering serious injury, driving in a manner dangerous, theft, possess proceeds of crime and going equipped to steal. You received a sentence of nine months’ imprisonment wholly suspended for 12 months.
50 You breached that suspended sentence order by committing further offences and were dealt with by way of a further aggregate six months’ imprisonment wholly suspended for 18 months for the breaching offences, and for the offences for which you received the Community Based Order, that was extended for a further 12 months.
51 You failed to comply with that Community Based Order which was breached on 18 January 2006, when you received a sentence of one month imprisonment, which was made concurrent with the restoration of your nine months’ sentence of imprisonment, which you appear to have served. The breaching offences included a charge of robbery. It appears that you received cumulative sentences of five months on the nine months’ sentence that was restored. A five months’ non-parole period was fixed.
52 Then, in July 2010, you received a three months’ wholly suspended sentence of imprisonment for drive whilst authorisation suspended. This sentence was wholly restored and ordered to be served on 17 December 2010, when you were before the court on further charges of drive whilst disqualified, possessing a controlled weapon and dishonestly assisting in the retention of stolen goods, for which you received a sentence of two months’ imprisonment.
53 Finally, you were before this Court in August 2011 charged with false imprisonment and common law assault, and sentenced to 30 months’ imprisonment with a non-parole period of 16 months.
54 In light of your prior criminal history, it is clear that specific deterrence and protection of the community must be given significant weight in sentencing you for these offences.[19]
[19]See Veen v The Queen (No 2) (1988) 164 CLR 465, 477–8.
55 I received a psychological report from Mr Ian H Mackinnon (Exhibit H2). He assessed you at Barwon Prison on 22 January 2019. He reports on the effect that the murder of your brother-in-law in your presence has had on you mentally.
56 Mr Mackinnon also remarked on the effect the revocation of your refugee visa and the time you spent in immigration detention has had on you. On 1 September 2015, you were arrested by police when you signed on in accordance with your bail reporting conditions because your visa had been revoked. I note that the Minister’s decision to cancel your refugee visa was recently overturned by the Federal Court.[20]
[20] I deal with the relevance of your almost certain ultimate deportation to Iraq later in these reasons for sentence.
57 You were placed in immigration detention on Christmas Island. After six weeks on Christmas Island, you were transferred to Silverwater Correctional Facility in New South Wales, where you remained for about eight days before being returned to Melbourne. It is agreed by the parties that you have spent 52 days in immigration detention.[21] This time cannot be declared as pre-sentence detention, but I take it into account in your favour in a broad and practical way.[22]
[21] From 1 September 2015 to 22 October 2015 (inclusive).
[22] See Underwood (a Pseudonym) v The Queen [No 2] [2018] VSCA 87; Sahhitanandan v The Queen [2019] VSCA 115 [29]–[36], [40]–[41].
58 After spending some time in MAP and the MRC, you were eventually transferred to Barwon Prison on 30 June 2016, where you have since remained. You have spent most of your time on remand in lock down in a management unit which has meant your access to courses and programs is restricted. I take this aspect of your confinement into account in your favour. Hopefully, once you are a sentenced prisoner your custodial situation will improve.
59 You reported to Mr Mackinnon that you use the prison fitness centre and have participated in educational programs, including improving your English language skills and IT components. At Barwon Prison, you receive visits from your wife and son, your parents, siblings and friends.
60 You admitted a history of polysubstance abuse to Mr Mackinnon that commenced in early adolescence and has since included the use of alcohol, cannabis, amphetamine, cocaine, MDMA, heroin and methylamphetamine (Ice). Mr Mackinnon reports that over the last decade, Ice (smoked) has been your preferred drug and that you have tended to abuse this drug whenever you are dealing with personal stressors in your life.
61 You are in good physical health and do not suffer from any chronic medical condition.
62 Mr Mackinnon opined that, at the time of his assessment of you, you were suffering with symptoms that met the clinical criteria for depressed mood disorder and post-traumatic stress disorder. However, in my view, these conditions are not such as to engage any of the principles in Verdins.[23]
[23] R v Verdins [2007] 16 VR 269.
63 You appeared to possess below average spoken English skills, which may have affected the accuracy of the intelligence testing you underwent. I accept Mr Mackinnon’s assessment that your functional intelligence falls within the normal adult range and your general cognitive functioning is also within the normal adult range.
64 I accept that, to some extent, your drug abuse has been a means used by you to cope with a degree of depression and anxiety and in this sense you were self-medicating in respect of the stresses in your life.
65 I accept that when you have completed the sentence I am about to impose on you, you will in all likelihood be deported to Iraq. The potential for you to be deported at the completion of your sentence is relevant to my sentencing you in two ways. First, imprisonment is more onerous on you because you face the prospect of deportation. This, in turn, may render your incarceration more burdensome. This is particularly so in your case where you have no real ties with Iraq, no family or friends living there and your knowledge of the Arabic language is rudimentary.[24] I accept that this is pressing on your mind and causing you stress and anxiety whilst you are serving any sentence.
[24] Allouch v The Queen [2018] VSCA 244 [39] (Beach and Weinberg JJA) (‘Allouch’); Loftus v The Queen [2019] VSCA 24 [65], [79] (Whelan and Niall JJA).
66 Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity you had prior to being sentenced to settle permanently in this country.[25] I take both these matters into account in your favour.
[25] Allouch 10 [39].
67 I also accept that the burden of custody is exacerbated in your case by separation from your wife and child and your concern for them remaining in this country without you or, alternatively, returning with you to Iraq, where their lives will clearly not be as comfortable or safe as they are in this country.
68 So far as Mr Mackinnon’s opinion that you “expressed remorse for his offending”, I accept that, whilst you are undoubtedly regretful for the situation in which you find yourself and the effect this has had, and will continue to have, on your family, there is insufficient evidence before to make a finding in your favour that you demonstrate true contrition and remorse.[26]
[26] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
69 Of course, so far as your plea of guilty to the fireworks charge is concerned, I will take that matter into account in fixing the amount of the fine I will impose on you for that offence.
70 Mr Mackinnon further opined that at the time of committing the offences before the court, you were:
… probably suffering from symptoms that met the clinical criteria for the following major diagnosable psychological disorders:
Depressed Mood Disorder (DMD)
Poly-Substance Abuse Disorder (PSAD).
71 However, I am also of the view that these disorders, and the qualification Mr Mackinnon puts on them of being only “probable”, is not sufficient to engage Verdins’ principles in your case.
72 I note the contents of a letter from the Royal Children’s Hospital Foundation dated 21 December 2018 (Exhibit H3), indicating the Foundation’s thanks for your generous donation of $5,000.
73 I have read the letter you have written to me regarding your current situation, and I take the contents of that letter into account in your favour. I accept that the separation from your wife and child is causing you anxiety and distress whilst in custody. I also accept the fact that you will be deported to Iraq upon completion of your sentence, and the effect that may have on your wife and child are also weighing heavily on you and make the burden of imprisonment greater than it would otherwise be.
74 I also take into account in your favour what you have written about the conditions of your imprisonment and being in a management unit since 2016. I also accept that whilst in jail you are undertaking rehabilitative programs, including a business course, which should assist you upon your release from custody.
Mitigating circumstances
75 I accept that your role in the offending conduct was not that of an organiser, but more as a foot soldier. Nonetheless, you were a willing participant in the syndicate and you played your role. I accept that you were not involved in significant planning in relation to the storing, selling and distribution of the heroin over and above the specific acts for which you fall to be sentenced. You did not engage directly in negotiations with buyers. You did not physically threaten anyone or carry any weapons at any relevant time. Moreover, whilst your motive, as indicated in your letter to the Court, was financial gain, there is no evidence of significant enrichment as a result of your participation in these crimes.
76 I accept that there has been significant delay in your case through no fault of yours and that, as a result, the uncertainty of these matters hanging over you has had an adverse effect on you, which I take into account in your favour.
77 As I have noted earlier, I also take into account the burden of custody on you, both in the manner in which you are currently serving your time on remand and the effect on you of separation from your wife and child, together with the burden that your ultimate deportation to Iraq is having on you.
78 Your counsel submitted that your prospects of rehabilitation are “excellent”. You have apparently ceased all drug use whilst you have been in prison. This is confirmed by the list of urine screens conducted on you since you have been in custody (Exhibit H5), which comprise 29 random urine sample tests extending from 23 January 2015 through to 12 February 2019, which have all been negative.
79 It was also submitted on your behalf that you have insight into the seriousness of your offending and the consequences of what you have done. I accept that, to some extent, this is so. Nonetheless, I cannot assess your prospects of rehabilitation as being “excellent”. Given the nature of your offending conduct and your prior criminal history, I can only adopt a cautious approach in my assessment of your prospects of rehabilitation, which I assess as being reasonably good, provided you remain drug-free upon your release from custody.
80 I accept that you have the support of your wife and also of your extended family, who have visited you weekly whilst you have been in custody, and who were present in court supporting you during the plea hearing.
81 I also take into account in your favour your co-operation with Victoria Police, through your brother acting as an intermediary, whereby police were directed to a drain in which the following weapons were located:
(a) An SKS assault rifle;
(b) A hand gun;
(c) A military hand grenade; and
(d) An Australian manufactured military issue smoke grenade.[27]
[27] See letter from Detective Inspector Glenn Jackson, Human Source Management Unit, State Intelligence Division, Victoria Police (“Jackson”) dated 4 April 2019 and the Confidential Affidavit of Detective Sergeant Jonathan Lee Ersch, sworn 26 March 2019. Cf the Confidential Affidavit of Jackson sworn 17 December 2018.
82 By causing this information to be provided to Victoria Police you have performed a valuable service to the community by assisting in the removal of these highly dangerous weapons, which may have been circulated to criminal elements of our society. You will receive a not inconsequential discount on the sentences I would have imposed otherwise on account of this co-operation.
Application of sentencing principles
83 I have had regard to current sentencing practices in relation to the charge of trafficking in a large commercial quantity of a drug of dependence and trafficking simpliciter in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym)[28] and the Victorian Court of Appeal decisions in Gregory (a Pseudonym) v The Queen[29] and Nguyen v The Queen.[30] The Crown also referred me to Fernando v The Queen[31] concerning current sentencing practices in relation to these offences.
[28] DPP v Dalgliesh(a Pseudonym) (2017) 262 CLR 482.
[29] Gregory v The Queen (2017) 268 A Crim R 1 (“Gregory”).
[30] Nguyen v The Queen [2019] VSCA 184.
[31] Fernando v The Queen [2017] VSCA 208.
84 It is difficult to gauge more than a very general yardstick from so-called “comparable cases”, given the wide range of offending conduct which can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from these and other comparable cases, I have sought to do so in your case.
85 So far as parity is concerned, I have had regard to the sentence imposed on Patrick O’Brien by another judge of this Court. He received a sentence of 11 years’ imprisonment with a non-parole period of six years, which was imposed for his storage of approximately 20.3 kilograms of heroin and MDMA, which is over 13 times the combined amount of heroin you are charged with. Moreover, he faced a Giretti count[32] covering the period 9 to 17 December 2014, rather than the two stand-alone charges you face.
[32] Giretti v The Queen (1986) 24 A Crim R 112.
86 His role and his personal circumstances are somewhat different from yours. Importantly he pleaded guilty, albeit quite late in the proceedings, but he received a significant discount on account of his plea.[33] He had no prior criminal history and he had taken “remarkable steps” towards his rehabilitation during the lengthy delay in finalising his case. He had “taken every possible opportunity to use [his] time well”. He was found to have “excellent prospects” of rehabilitation. He demonstrated true contrition and remorse and could rely on a significant body of supportive character references from friends and members of his community. He was educated and had conducted a successful business as an auto mechanic. Nonetheless, despite these distinguishing features, to the extent that O’Brien’s sentence is of assistance to me, I have had regard to it.
[33] While I do not have regard to it for sentencing purposes, I note her Honour’s 6AAA declaration was 15 years’ imprisonment with a non-parole period of 10 years.
87 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
88 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society, albeit probably not in Australian society.
89 General deterrence is a very important sentencing consideration for the offence charged in charge 2 on the first indictment.[34] The offence is prevalent in the community and, as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.[35]
[34] Nguyen v The Queen (2016) 311 FLR 289, 330 [139]–[140] (“Nguyen”); Dawid v DPP [2013] VSCA 64 [83].
[35] Nguyen 331 [141].
90 Whilst just punishment, general deterrence and denunciation must be given primary consideration in my instinctive synthesis, I am of the view that, in your case, specific deterrence and protection of the community need be given some real weight. Moreover, I can only adopt a cautious approach to your prospects of rehabilitation, which I find to be reasonably good, provided you remain drug free on your release from custody.
91 Trafficking in a large commercial quantity of a drug of dependence is a category 1 offence for the purposes of s. 5(2G) of the Sentencing Act 1991.[36] Accordingly, on charge 2 on the first indictment I must impose a sentence of imprisonment to be immediately served. In any event, sentences of imprisonment to be immediately served are the only sentences for that offence and charge 1 on the first indictment that I consider would appropriately achieve the purposes for which those sentences are imposed.[37] Your counsel accepted this was so.
[36] See Sentencing Act 1991, s. 3(1) category 1 offence paragraph (j).
[37] See Sentencing Act 1991, s. 5(4).
Stand up Mr Harris
On the charge of trafficking in a drug of dependence (charge 1 on the first indictment) you will be convicted and sentenced to imprisonment for 4 years.
On the charge of trafficking in a drug of dependence in not less than a large commercial quantity (charge 2 on the first indictment) you will be convicted and sentenced to imprisonment for 11 years.
I order that 1 year of the sentence imposed on charge 1 be served cumulatively with the sentence imposed on charge 2, making a total effective sentence of 12 years’ imprisonment.
I order that you serve a minimum of 8 years’ imprisonment before becoming eligible for parole.
I declare 1520 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that the fact that declaration was made and its details be noted in the records of the court.
On the charge of possession of an explosive substance (charge 1 the second indictment) you are convicted and fined $500. I refer that fine to the Director of Fines Victoria for collection.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty to charge 1 on the second indictment would have been a fine of $1000 with conviction.
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