Director of Public Prosecutions v Jalalatfard

[2018] VCC 1719

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01530

THE QUEEN

v

JAMSHID JALALATFARD

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 October 2018
CASE MAY BE CITED AS:	DPP v Jalalatfard
MEDIUM NEUTRAL CITATION:	[2018] VCC 1719

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms H Baxter
For the Accused	Mr J van Arkadie

HER HONOUR:

1Jamshid Jalalatfard, you have pleaded guilty to a single charge of import marketable quantity of an unlawfully imported border control drug.  Your offence was committed on 27 April 2018.  The drug in question was opium.  This charge carries a maximum penalty of 25 years' imprisonment, which is reflective of the seriousness with which Parliament regards this offence.

2The details of your offending are set out in a document entitled "Crown opening upon plea."  It is dated 4 September 2018, and its contents are not disputed by your legal representative.  It is marked in Exhibit P1.

3In short compass, on 27 April 2018, an international air consignment was examined by Australian Border Force at the Melbourne Airport. 
This consignment consisted of two wooden game boards addressed to "John Fard" of Unit 3/1 Gerbert Street, Broadmeadows.  A physical examination of the consignment was conducted, and a swab test revealed the presence of opium.

4The consignment was then deconstructed and analysed.  A total net weight of 3.66 kilograms of opium resin was contained within the two wooden game boards.  On further analysis, the substance was found to contain some caffeine and paracetamol, such that the total amount of opium contained in the resin was 3.23 kilograms.  A marketable quantity of opium is 20 grams.  The amount therefore seized by Border Force was approximately 161 times the marketable quantity.

5The telephone number attached as the contact with the consignment was described in the name of Ming Zhou.  There was no connection between Ming Zhou, the consignment, or the address of Unit 3/1 Gerbert Street.  However, enquiries with the real estate agent associated with the address revealed that you resided at the premises.

6After a number of attempts to contact you by the Australian Federal Police, purporting to be associated with a transport company, you responded to those contacts and made arrangements for the package containing the opium to be delivered.  At 7.52 am on 4 May 2018, an Australian Federal Police investigator purporting to be a TNT delivery driver attended at your address for the purpose of a controlled delivery.  Contact was made with you, and you walked down the driveway of your premises, identified yourself as John Fard and accepted delivery of the consignment.  You were then arrested.

7A record of interview was subsequently conducted in the presence of an interpreter.  During this interview, you made full admissions to importing the consignment containing the opium.  You detailed making arrangements through a friend in Turkey to have 2 kilograms of opium sent to your address.

8You told investigators that you intended paying $10,000 for the 2 kilos of opium.  You believed that it would be valued at $15,000 a kilo and that you intended to sell the 2 kilograms to one person for the amount of $30,000.  You believed you would gain at least $20,000 from this arrangement.  You told police that you were yet to pay the $10,000 owed.

9A valuation statement tendered by the Crown and authored by Federal Agent Keith Randall details that the drug opium has a relatively small niche market in Australia, and is commonly used within migrant communities from South Asia and the Middle East, who have a historical pattern of use.

10Mr Randall states that there are relatively few seizures of this drug. 
He estimates that the wholesale value of the opium seized was between $54,000 and $72,000, and, if sold in gram lots, held a street value of between $91,577.50 and $219,786.  It seems that your estimated value of the opium in your record of interview was somewhat accurate in that Federal Agent Randall states that the price per kilo for opium ranges between $15,000 to $20,000.

11You have remained in custody since 4 May

12You have explained this offending as occurring when you were subject to difficult financial circumstances such that you believed this enterprise would alleviate those difficulties.  I shall return to this.  It is not suggested that you are a regular user of opium, although you have used this substance and indicated through your record of interview that it is very accessible in your country of origin.

13In arriving at an appropriate sentence, I am obliged to and do take into account matters personal to you.  I turn now to those circumstances. 

14You were 43 years of age at the time of your offending and are now aged 44.  You were born in Iran, the fourth of five children, born of your parents' union.  Your mother and father continue to reside in Iran and are now aged 70 and 81 years, respectively.

15Upon finising your schooling in Iran, you completed two years of compulsory military service.  You married at the age of 21 years to your childhood sweetheart.  You and your wife, Minh, had three children.  You have two daughters, one named Mojgan, aged 23 years and Pardis, aged 21 years. 
You also have a son named Mobin, aged 16 years.  In Iran, your primary source of work was in driving and repairing cars.

16In your early years, you were involved with the PKK and in 2004 were arrested and gaoled in Iran for your support of this group.  Four years later, in 2008, your family arranged for you to be kidnapped as you travelled from gaol to court.  Asylum had been arranged for you in Turkey.  You then spent time in Turkey, Malaysia and Indonesia before arriving in Australia by boat in 2010.

17You spent a period of time in immigration detention, both in Christmas Island and the Curtin Immigration Detention Centre, until such time that you obtained permanent residency in Australia in 2012.  Upon obtaining permanent residency, you spent some time in Launceston, Tasmania, but found the community isolating and you had difficulty finding employment.  You then moved to Melbourne and have lived here ever since.

18To your credit, you immediately sought out employment and worked on vehicles, firstly as a tow truck driver and then as a courier.  You also earned income by purchasing, repairing and selling cars. 

19In 2015, you had invested the income that you had saved into a car yard business in Campbellfield.  Around this time, you also travelled to Pakistan to see family members. 
I understand that this would have been the first occasion since 2004 that you would have had such contact.

20Unfortunately, whilst you were away, your business burnt down and you lost all but $27,000 of your investment.  This event seems to be the catalyst for a change in your financial circumstances.  As I have previously referred, you attribute your poor financial circumstances to your decision to be involved in the charge now before the court.

21You explained through your counsel that your financial stressors came about as you had difficulty meeting the dowries in relation to your two daughter's weddings.  Valuable jewellery had been stolen from your premises which belonged to your brother, and you perceived a need to repay him for that loss, and you had also developed debts to friends from whom you had borrowed monies during that time.

22At the time of your offending, you were earning Centrelink benefits and continued to have some involvement in buying, repairing and selling cars. 
Your counsel described your circumstances as desperate and that you were particularly vulnerable at that time as a result.

23I have had no evidence as to the circumstances other than that which has been put to me by your instructions.  I do not accept the description that at the time of the offending you were either desperate or vulnerable.  I do accept that you perceived a need to relieve your debt.  I am at somewhat of a loss to understand the decision to be involved in such serious offending in this context.  You had a very clear understanding of the potential profits to be gained from such activity.  You sought to solve your perceived problems, being aware of the substantial profit, and disregarding the potential harm to the community.

24It is most unfortunate that since you have been on remand from 4 May 2018, your wife has died, I am told, in July of this year.  Your two older children are adults and married.  Your son, Mobin, is now having to reside with your elderly parents.  I am told that Mobin suffers from some physical deformity, and that you are very concerned about him and your parents' ability to be adequate carers for him, given their age.

25I have no material from your parents, nor any medical material in relation to your son, but note that the Crown do not seek to challenge these instructions as put through your counsel. 

26Counsel for the Commonwealth Director of Public Prosecutions has referred me to an outline of Crown sentencing submissions and has provided a folder of recent decisions relating to the importation of a marketable quantity of a drug.

27The Crown have referred me to various cases where statements of general principle applicable to sentencing for drug importation were made.  I have taken the contents of these materials into account.  In those materials, the Crown has referred me to the decision of the Victorian Court of Appeal in Nguyen and Phommalysack [2011] 31 VR 673, in which the Court of Appeal said, at paragraph 34, where relevant to your case, the following.

-      Firstly, that the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation.  Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence.

-      Secondly, although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.

-      Thirdly, ordinarily the amount of drug involved in a importation is a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type.  In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved, where otherwise the circumstances of the importation were the same or very similar.

-      Fourthly, as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit.  (The fact an offender needs money to pay off a debt does not necessarily affect culpability.)

-      Fifthly, the difficulty of detecting importation offences and the great social consequences that follow suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.

-      Sixthly, the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.

-      Involvement at any level in a drug importation offence must necessarily attract a significant sentence - otherwise, the interests of general deterrence are not served. 

-      The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.

28I have also been referred to and taken into account the decision of DPP v Maxwell [2013] VSCA 50, which refers to the need to consider, in addition to the weight of the drugs imported, the financial reward received or anticipated by the offender as being relevant to the objective gravity of the offence. The underlying proposition is that the greater the anticipated reward of criminal conduct such as this, which does inflict such harm on the community, the higher the offender's moral culpability.

29Whilst there are many cases of greater reward, you had calibrated your reward to your perceived needs and it could not be described as small or inconsequential.  It should not be lost that you intended to sell 2 kilograms in its entirety, understanding that that would then be onsold and enter into our community, undoubtedly for some reward to those that took on the task of that on-selling.

30In your case, the prosecution has provided a table of cases said to be indicative of the appropriate sentencing range and designed to assist me to establish some form of ‘yardstick’ as to the appropriate sentence.  Your counsel has also referred me to a range of cases.  I have taken all of these cases into account.

31Current sentencing practice is a factor, not the only factor, to be taken into account, and in this offending is to be interpreted from sentencing practice Australia-wide and not just from Victoria.  In your case, the statistical table was accompanied by judgments, and I read all of those judgments as indicated.

32In terms of the cases to which have been referred, there is none which constitutes a direct match with your offending or your personal circumstances, nor did I expect that there would be.  I am still, however, assisted.

33In this particular instance, you were the direct organiser or principal in the importation of some 3.66 kilograms of a substance, of which 3.23 kilograms was opium.  I accept your intention was to import 2 kilograms of opium.  Either way, this is not an insignificant amount that would have then entered the Australian community, and solely for you to obtain moneys.

34The opium was provided by contacts known to you and heavily concealed.  Some effort was made by you to avoid being identified as the ultimate recipient.  I do find your moral culpability to be high.  Your actions were deliberately commercially-minded, from which you sought to distance yourself in terms of the execution of the importation.

35I also take into account the provisions of s.16A(1) of the Crimes Act, where relevant to your matter.  Section 16A requires the court to impose a sentence which is of “severity appropriate in all circumstances of the offence.”

36I have already referred to the prior good character of a person involved in drug importation offences as being generally given less weight as a mitigating factor on sentence.  However, I do accept that you have pleaded guilty at the earliest opportunity.  I accept that this indicates a willingness to facilitate the course of justice and has utilitarian benefit.

37Whilst the case against you may have been strong, you have, through your plea, obviated the need for any form of contested proceedings.  Having recourse to the materials tendered on your behalf, I am also satisfied that your plea of guilty is borne of some remorse.  You made frank admissions as to your role in your interview with the Federal Police.  All of these factors will be taken into account in the sentence imposed.

38The unlawful importation of a border controlled drug is a most serious crime. 
I accept that general deterrence is an important sentencing consideration for the type of offending that you have committed.  There is a genuine need to impose a sentence which is capable of deterring others from engaging in such activity, given the potential harm to the community.  This in itself lends weight to the need to also consider denunciation and protection of the community.

39Tendered on your behalf is a report from Guy Coffey, clinical psychologist, dated 23 September 2018.  It is marked in Exhibit D2.  I take into account the contents of that report.  He does not attribute any mental disorder as a contributor to your decision to commit this offence.  He does not find you to be currently suffering from any mental disorder.  Indeed, Mr Coffey describes you as, and I quote:

"A particularly resilient person who did not develop a post-traumatic stress disorder after his very difficult period of incarceration in Iran."

40You are perhaps fortunate that that is the case.  Where Mr Coffey's report is more relevant to the sentencing task is his assessment that your risk of reoffending is reasonably low, you have traditionally been a hard worker, you have no drug or alcohol problems and no mental health problems.

41This is relevant to your prospects of rehabilitation, which appear to be good.  Furthermore, Mr Coffey does refer to your various expressions of remorse for your offending.  I take his opinion and assessment into account. 

42In terms of assessing your prospects of rehabilitation, you have a limited and admitted prior criminal history.

43 On 23 January 2018, you were dealt with at Dandenong Magistrates' Court for a single charge of using a carriage service to menace.  The charge itself bears little relevance to the offence before me.  What is relevant, however, is that when sentenced for the charge of using a carriage service to menace, you were placed on an undertaking to be of good behaviour. This undertaking was for a period of 12 months.  The offending is in breach of that undertaking, and hence, an aggravating aspect to your offending.  However, it is not a matter which will take great weight in the overall sentencing mix.

44It is submitted that less weight ought to be placed on specific deterrence when sentencing you because of your limited criminal history and your prospects of rehabilitation.  Whilst I accept that submission overall, I am still of the view that some limited weight needs to be given to specific deterrence, given how easily you saw this serious offending as a means of resolving your financial problems and the effort and intricacy that would have been involved in arranging the importation.

45I accept the submission that there are aspects of your incarceration that make your time in custody more difficult.  These include the fact that this is your first time in custody in Australia.  Your command of English is still somewhat limited.  You have had no visitors.  You can only contact family members by telephone when you have sufficient funds to be able to do so.  I am told that your employment within the prison system earns you approximately $32 per week.

46Apart from the one visit to which I have referred in 2015, you have effectively been separated from your family since 2004.  Whilst in custody, you have experienced the death of your wife in July this year and have ongoing concerns as to the wellbeing of your children without the assurance that your wife is keeping a watchful eye.

47Added to this is the burden upon you of not knowing whether or not you are likely to be deported at the expiration of your sentence.  I accept that this burden of not knowing also makes your time in custody more difficult than those that do not face such uncertainty.  On any view, you are unable to return to Iran.

48Your counsel submits that your offending can be adequately dealt with through a recognizance release order.  The Crown submit that your offending can only be dealt with by fixing a head sentence with a non-parole period.

49I am going to turn to sentence now, but I will not require you to stand because of the assistance of the interpreter.  I can only pass a sentence of imprisonment if, having considered all available sentences, I am satisfied that no other sentence is appropriate in the circumstances of the case.  In my assessment of those circumstances, I have no alternative but to impose a term of imprisonment.

50In relation to the single charge of importing a marketable quantity of a border controlled drug, you are convicted and sentenced to five years and ten months' imprisonment.  That sentence will commence today.

51In fixing a non-parole period, I must pay regard to s.19AKA of the Crimes Act.  The purposes include the protection of the community, the rehabilitation of the offender, and the reintegration of the offender into the community.  Taking these factors into account, I fix a non-parole period of three years and nine months.  This is a longer than usual non-parole period designed to assist your supported reintegration into the community.

52I am required to explain the impact of my order.  The total effective sentence is the five years and ten months to which I have referred, and I have also directed that you serve a minimum period of three years and nine months before being eligible for parole.

53Accordingly, you will be required to serve a minimum period of imprisonment of not less than three years and nine months, and thereafter, if released on parole, the balance of your sentence will be served in the community subject to conditions of your parole and subject to any order for deportation.  If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.

54Having come to the conclusion that I have no alternative but to impose a term of imprisonment, under s.17A(2)(b) of the Crimes Act I direct that my reasons for so doing be entered into the records of the court.  I direct that a copy of my revised reasons for sentence be entered into the court's records and stand as the reasons under the section to which I have referred.

55I declare the period of 172 days be reckoned as time already served under this sentence, and direct that the details of this declaration be entered in the court's records.

56I am required by s.6AAA of the Sentencing Act to state the sentence that I would have imposed, had you not pleaded guilty to the charges.  If not for your pleas of guilty, I would have sentenced you to a total effective sentence of seven years and six months' imprisonment with a non-parole period of five years and two months.

57Are there any further matters or orders?

58COUNSEL:  No, Your Honour.

59HER HONOUR:  All right.  I once again thank counsel for their assistance, and I thank the interpreter as well.  Thank you, Mr Smith.  If I could close the court until 9 am.

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