Director of Public Prosecutions v Kucukvardar
[2018] VCC 1330
•23 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR-18-00265
Indictment No. H10700871
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OGUZHAN KUCUKVARDAR |
---
| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 April, 6 June 2018 |
| DATE OF SENTENCE: | 23 August 2018 |
| CASE MAY BE CITED AS: | DPP v Kucukvardar |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1330 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence– trafficking in a large commercial quantity of a drug of dependence – conspiracy to engage in reckless conduct endangering serious injury – conspiracy to commit arson – plea of guilty
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71(1);
Crimes Act 1958 (Vic), s 321(1)
Cases Cited: R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: Total effective sentence of 10 years’ imprisonment with a non-parole
period of 6 years and 9 months.
Section 6AAA declaration: 13 years’ imprisonment with a non-parole
period of 10 years.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Livitsanos | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C Heliotis QC Mr P Smallwood | Grigor Lawyers |
HIS HONOUR:
1Oguzhan Kucukvardar, you have pleaded guilty to one charge of trafficking in a large commercial quantity of a drug of dependence, the maximum penalty for which is a term of life imprisonment (Charge 1); two charges of trafficking in a drug of dependence, the maximum penalty for which is a term of imprisonment of 15 years (Charges 2 and 7); one charge of conspiracy to engage in reckless conduct endangering serious injury, the maximum penalty for which is a term of imprisonment of 5 years’ imprisonment (Charge 3); one charge of being a prohibited person possessing a firearm, the maximum penalty for which is a term of imprisonment of ten years (Charge 4); one charge of conspiracy to commit arson, the maximum penalty for which is a term of imprisonment of 15 years (Charge 5); and one charge of recklessly dealing with the proceeds of crime, the maximum penalty for which is a term of imprisonment of 10 years (Charge 6).
2You have also admitted a summary charge of possessing cartridge ammunition without a licence, for which the maximum penalty is a fine of 40 penalty-units.
3Tendered on the plea was a summary of prosecution opening (exhibit 1). I annex a copy of that document to these sentencing reasons.
4Your offending covered a four-month period between 9 November 2016 and
1 March 2017 and arose out of your association with a street gang known as the Last Kings and the leader of that gang, Mr Robert Ale. The circumstances of the offending can be briefly stated as follows.5Towards the end of 2016, police officers from an organised crime task force began to investigate the drug trafficking activities of Mr Ale. By means of regular and covert investigation techniques, police officers established the nature and extent of the criminal operation that was being run by Mr Ale and the identity of his subordinates, associates and affiliates, each of whom performed at Mr Ale’s direction varying roles integral to the success of Mr Ale's ongoing criminal enterprise; you were one such.
6The circumstances of Charge 1 are that between 9 November 2016 and
1 March 2017, you trafficked 1.86 kilograms of methamphetamine. Your role included the purchasing of new product, the distribution of product, the guarding of purchased product, stock inventory and managing and moving of funds. One instance of this trafficking relates to an attempt by you to purchase half a kilo of methamphetamine from a supplier in the St Kilda Road area of Melbourne. The prospective purchase was not completed.7Intercepted communications clearly identify that you were taking your immediate instructions from Mr Ale. However, they also reveal the full extent of the role that you played in the prospective purchase, as the trusted agent of Mr Ale and also the initiative and organisational skills that you brought to that prospective purchase, and of how you gloried in that role. At 6:52pm on 10 November 2016, whilst awaiting developments, you sent Mr Ale a picture message with the comment "I love my job. Waiting for product at the top floor of the penthouse apartment across Albert Park ahaha". This is but one instance of the trafficking of methamphetamine reflected in Charge 1.
8On 26 December 2016, you were instrumental in the custody and onward concealment of a kilogram of methamphetamine that Mr Ale had acquired.
This culminated in you delivering the kilogram of methamphetamine, on Mr Ale's instructions, to Ms Leigh Sussman at the St Kilda McDonald's at about 3:22pm on 27 December 2017.9Charge 2 relates to your dealings in amphetamine on two occasions:
5 November 2016 and 2 December 2017. The total amount trafficked by you in relation to that drug of dependence was 42 grams.10Charge 7 relates to your dealings in cocaine and comprises various transactions between 2 December 2016 and 1 March 2017. The total amount of cocaine trafficked is 171.5 grams.
11The circumstances of Charges 3 and 4 relate to an agreement between yourself, Mr Ale, Mr Mustafa Baydar and others to fire shots at a residential property in Doreen. The apparent purpose was to encourage repayment of a debt owed to Mr Ale’s drug-dealing enterprise. Mr Baydar, a relatively new recruit, was to be the shooter. Mr Baydar was very keen to prove his bona fides and worth to Mr Ale. Your task was to accompany Mr Baydar and ensure that he performed his task to the satisfaction of your boss, Mr Ale. You were, in effect, the minder of the rookie. Mr Baydar was in a vehicle and you were riding, literally, shotgun on a motorcycle.
12Surveillance shows a meeting between various parties at your address and later at the address of Mr Christian Hamilton. Later still, at about 12:15am on
17 November 2016, you and Mr Baydar were observed in conversation outside an address close to the target property. You were observed carrying an item consistent with being a firearm (Charge 4) and handing it to Mr Baydar who then placed it on the passenger seat of his vehicle.13Police officers had staged a vehicle intercept closer to the targeted property so as to prevent the attack upon the house. You reported that matter back to your boss, Mr Ale, and over the next 90 minutes you conducted a reconnaissance of the area to see if there was any way in which you and Mr Baydar could get past the police presence. Police officers, aware of your continued presence and continued intent, upgraded their efforts by setting up a mock crime scene. Your response to this was to double your efforts to find a way to get through the police lines and to complete your task. At 1:40am, conceding defeat for that night, you and Mr Baydar left the area. Mr Baydar, so keen to earn his stripes, was prepared to come back later on that night and was left distraught and apologetic at his failure at letting down his boss.
14Your attempts to get through the police lines demonstrate the willingness and enthusiasm that you brought to this particular criminal conspiracy. You gave yourself wholeheartedly to that conspiracy and it was only the action by police that prevented the agreement from being put into full effect.
15On 17 November 2016, a search warrant was executed at the factory address where you had been staying in Dandenong South. During the warrant, two firearm magazines were found on the third shelf of the bookshelf. These are the facts of the summary charge.
16The evidence on Charge 4 is found in text message correspondence between you and your boss, Mr Ale. On 21 November 2016, Mr Ale contacted you asking you to go down to Dandenong and check to see if there was a silver ML350 sitting there as the vehicle was "a hottie which the boys had put there the other night for a job". You went down to Dandenong, checked on the vehicle and then reported back to Mr Ale that there was a Mercedes ML350 with Sydney plates. Further communication discussed the possibility of moving the vehicle. On 26 November at 7:53pm, Mr Ale messaged you stating that he needed you - and whomever else that you trusted - to be available tonight to torch a car. The car in question was that same Mercedes that you had checked out the previous day.
17You made the necessary preparations, including recruiting others to assist. You messaged Mr Ale between 9:45pm and 10:37pm that "we're sweet to go and waiting for your go ahead. I will wait for the thumbs up". At 11:47pm, you texted Mr Ale, "Brother, we are on standby and around the corner". Mr Ale said that he was at a job which was not going to plan.
18Mr Ale, in the course of pursuing his other activities noted the Dandenong area was filled with "cops and undercovers", announcing to a co-accused that he was "pulling the pin, fuck this". Mr Ale left the area and you were never given the go-ahead for which you were so anxiously waiting.
19At 12:18am on 27 November 2016, the investigators located a 2015 Mercedes Benz ML350 grey wagon parked in Carlson Street, Dandenong. The vehicle displayed false New South Wales plates that had been stolen in Reservoir on 1 November 2016. The agreement had been pursued by you to the point where you were around the corner from the vehicle, awaiting instructions from your boss to set the vehicle on fire.
20Charge 6 refers to your attendance in Coronet Bay, to collect money that had been hidden there and to deliver it to another associate offender. The collection was organised by Mr Ale and you acted, once again, upon his direction. At 8:46am, Mr Ale messaged you saying that he needed you to grab "my dollars today", you responded "Okay brother, I'll head up there as soon as I see someone for a chat then I'm straight there".
21That simple exchange reveals your willingness to put into effect every request made of you by Mr Ale for the advancement of the interests of his drug dealing operation.
22I now turn to your personal circumstances.
23You were born in Australia on 18 September 1987 and are therefore aged 31. You were 29 at the time of the offending. Your parents moved you and your younger sister to Turkey in 1995 when you were in Grade 3, and opened a clothing business there.
24Your parents divorced approximately three years later and your father re-partnered with an employee of the family business. You report that in the aftermath of your parent's divorce, your mother became mentally unwell and was admitted as an inpatient to psychiatric institutions on multiple occasions.
I was told on the plea that your mother was eventually diagnosed with paranoid schizophrenia.25You moved back to Australia at age 13 with your mother and sister. Your father later moved to Australia with his partner and you lived with them from the age of 15, as your mother and sister had both moved back to Turkey. Your father and your new partner had a son, your younger brother, in approximately 2004. Today, your mother remains in Turkey and your sister and father live in Melbourne. It can thus be seen, Mr Kucukvardar that your adolescence was fractured by the separation of your parents which you took particularly hard and more significantly by your mother's descent into psychiatric illness.
26Your counsel described your life with your father and his new family as difficult. You perceived your father as punitive, unsupportive, always making you feel not good enough. By the age of 16, you felt that you were living in a hostile household and with your mother living in Turkey with ill mental health you graduated towards peers with similar disrupted backgrounds. This was the context in which you were introduced to cannabis, alcohol and quickly graduated to other drugs of abuse, finally to methamphetamine.
You left school at the end of Year 11.27You returned to Turkey at the age of 19, reportedly in an attempt to stop taking methamphetamines, being aware that you had become dependent upon that drug at such a young age. You returned from Turkey after a period of six months and you soon relapsed back into abusing methamphetamine. By the age of 22, you realised that your life was spiralling out of control.
You determined that it was not possible for you to remain drug free whilst in Australia and so you returned again to Turkey. There, you joined the military. You hold both Turkish and Australian citizenship and I am instructed that to maintain your Turkish citizenship, military service is necessary.28It seems that at the point at which you joined the Turkish army, you were lacking identity, you were feeling abandoned and you had no one to turn to for support. The notion of belonging to an organisation and the sense of identity that would bestow upon you, in part drove your decision to enlist. It had, for you, the added attraction of being yet another opportunity to stop using methamphetamine. Once in the army, I am told that given your proficiency with English, you were despatched to work with NATO forces in Iraq, working closely with the American military forces there.
29From March 2009 to May 2010, you were based in Iraq and in the course of your service you were exposed to extreme trauma and the horrors of that particularly brutal war. You report that a close friend was killed in front of your eyes, your unit was ambushed, you witnessed massacres and you yourself shot three children. You assaulted a commanding officer leading to your arrest and your military detention. I am told that you were admitted to hospital where you remained for eight months, two of those months you were strapped to a bed being heavily sedated.
30When you emerged from hospital and upon your release and expulsion from the army, you married. You came back to Australia with a view to setting up a home and starting a new life and putting into motion the process of bringing your Turkish wife here to Australia. However, in early 2014 you received the news that your wife was not in fact coming. It seems that this was a trigger for you to again seek comfort in that which you believed would not let you down: alcohol and methamphetamine.
31It is at this low point in your life that you were introduced to the Last Kings, variously described as a street gang with association to the Comanchero outlaw motorcycle gang (OMCG). Whatever the status, the attraction for you was the offer of acceptance, a place to live, friendship and it seems to me, more than anything else, it provided you with a sense of belonging. Mr Ale was the head of the Last Kings and he used the group for the purposes of his criminal enterprise; primarily, the trafficking of drugs of dependence.
32Your counsel, Mr Heliotis of Queen’s Counsel, informed me on the plea that you felt you owed the group your loyalty. If you did not give the group your unswerving loyalty, you believed that you would be looked down upon as you had been looked down upon by your father. This was the setting in which you became involved in the series of crimes for which you fall to be sentenced today.
33On the plea, there was tendered exhibit 2OK, a bundle of defence material. That bundle included a report of Dr Anthony Cidoni (consultant psychiatrist) dated 23 March 2018; a report from Mr Ian Mackinnon (forensic and consultant psychologist) dated 5 April 2018, with a further addendum report dated
15 April 2018 from the same author; and a report from Ms Amanda Brown, drug and alcohol counsellor dated 10 April 2018.34Ms Brown stated in her report that it is likely that the ongoing use of ice (being methamphetamine), cocaine, alcohol and GHB and late nights with ensuing lack of sleep would have contributed to your inability to make rational decisions, ultimately leading to anti-social behaviour which brings him before the court.
35She assessed as you now having a greater insight into the impact that your drug and alcohol abuse has had upon your life and that you were now able to make the connection between your use of substances as self-medication to mask negative memories and to avoid feelings.
36In this regard, I have been told by your counsel - and I accept - that since your arrest, you have been totally drug free. You have done whatever you could to begin your long process of rehabilitation and thereby demonstrate to the community that you are intent upon changing.
37I am told and accept that you have completed whatever drug course you can and, importantly, have totally severed your relationship with your former criminal associate. You can now see that Mr Ale, rather than being a caring father figure who offered you friendship, love and nurture and family, was in fact using you for his own criminal purpose.
38Ms Brown also details your report of flashbacks whilst you have been in prison upon remand, triggering emotional responses that you find difficult to manage, but which so far you have succeeded in managing.
39Dr Cidoni reports that prior to your arrest, you had been using up to 1.7 grams of methamphetamine per day. He detailed your self-report of a long standing history of depression which had worsened since the age of 16. In his opinion, he noted that you had suffered from a systemic disorder and a post-traumatic stress disorder.
40You have also suffered from a very significant poly-substance use disorder, particularly methamphetamine and alcohol which, in Dr Cidoni's view can, at least in part, "be seen as self-medication for his underlying and largely untreated psychiatric condition".
41He also noted associated cognitive difficulties and that you have experienced periods of amphetamine induced psychosis. There was no suggestion, however, that any of this offending occurred during a psychotic episode.
42Importantly Dr Cidoni, consistent with the opinion of Ms Brown, stated that your psychiatric conditions have worsened whilst you have been in custody with attendant difficulties in obtaining treatment.
43Mr McKinnon, in detailing your history, expressed the opinion that at the time of his assessment of you, you met the clinical criteria for post-traumatic stress disorder, the symptoms of which include anxiety, depression, rumination, flashbacks, nightmares, sleep disturbance, sensitivity to environmental cues and triggers, paranoia, avoidance behaviour and so on. I understood Mr McKinnon to be describing the common symptoms of the disorder rather than suggesting that you were manifesting each of those symptoms.
44Mr McKinnon was clearly of the view that your post-traumatic stress disorder had its origins in your experience in the Turkish military.
45Mr McKinnon also diagnosed you with polysubstance abuse disorder (PSAD). You had reported to him use of up to two to three grams of methamphetamine a day. To Mr McKinnon, you described the Last Kings as "just a group of mates".
46At page 8 of his report of 5 April 2018, Mr McKinnon posited that your
“longstanding PSAD and PTSD made a significant contribution to his offending by degrading his ability to reason and make sound judgment, elevating his impulsivity, lowering his powers of consequential thinking, lowering his frustration tolerance threshold, distorting his perception and cognition, generating paranoid and delusional tendencies and encouraging a self-absorbed perspective that lacked empathy and concern for other individuals or the wider community.”
47In his addendum report of 15 April 2018, Mr McKinnon stated that
"Like many traumatised individuals, Mr Kucukvardar was vulnerable to be drawn to a context where his unresolved issues and emotions might be played out in a thematic fashion. … In 2016 to 2017, Mr Kucukvardar was caught up in a criminal enterprise in which he victimized others and put the wider community at risk. At the time, his moral appreciation of this fact was seriously degraded and his social disconnection reduced his concerns to only himself and his closest associates".
48In light of that opinion, and your counsel’s reliance upon that as engaging the principles of the well-known case of Verdins[1], Mr McKinnon was called to give evidence on your plea. He gave evidence that in his opinion, during the time of the offending you had a mental impairment and that this mental disorder made a significant contribution to your offending but he accepted that it was difficult to say how significant that contribution would be.
[1] R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
49He stated his feeling was that you came back from Turkey in a very poor psychological state. You were heavily abusing illicit substances in addition to alcohol. You were heavily addicted and heavily traumatised. Mr McKinnon accepted significantly, in my view, that it was all difficult to unpack after the event.
50In answer to a question from prosecution counsel, Mr McKinnon stated
"I can't put aside the substance abuse. When you are using very large amounts of methamphetamine that in itself affects judgment. Then you tend to gravitate towards the lifestyles of fellow users and that is a big of part of his life. Further [said Mr McKinnon] he is driven to playing out themes about manliness, guilt and authority".
51Later, Mr McKinnon conceded that in part, it is a matter of conjecture "whilst his psychological issues would have had an appreciable input, it did not cause his offending". Later still, Mr McKinnon said you could distinguish between right and wrong “but not to the same degree as others not suffering from his disorders”.
52Mr Livitsanos, for the prosecution, in detailed submissions described you as at the upper end of the organisational hierarchy in relation to the trafficking enterprise. In support of this, he submitted that others in the organisation did not get as involved as you did in the enforcement of the aims and objectives of the criminal enterprise.
53In cases of drug trafficking, particularly in the context of an organised criminal enterprise such as this, principles of general and specific deterrence, denunciation and also protection of the community loom large in the exercise of the Court's sentencing discretion. I agree.
54He submitted that the Court is not merely dealing with the trafficking charges which are most serious in and of themselves, but rather with different types of offending, all of which are serious: the planned discharging of a weapon at a residential property in Doreen, the conspiracy to arson and the possession of ammunition.
55Mr Livitsanos submitted that there were real issues of cumulation in relation to the individual incidents of offending to which I should have regard subject, of course, to the principle of totality. He submitted that your offending called, on any view, for a very significant term of imprisonment
56Finally, he submitted that if I were to find a connection between any mental impairment and your offending, general deterrence would not, in any event, be eliminated but merely diminished. He submitted that your moral culpability for your offending is very high.
57Mr Heliotis on your behalf accepted that you did the bidding of Mr Robert Ale, a man who, echoing the words of the prosecution opening, headed, directed and controlled the actions of the members of the drug trafficking syndicate. He rightly submitted that the precise descriptor, whether "foot soldier" or "trusted lieutenant" - should not divert attention from the role that you actually played.
58He acknowledged the seriousness of your offending and that you must be punished. However, he submitted that I should impose an overall term of imprisonment which is as low as my duty to the community permits and I should then impose a shorter than normal non-parole period so that if and when you were released, you would have a lengthy period of supervision.
59In support of this submission, he identified that there was now a treatment plan in existence for you for years to come, that you now knew where you were going and, further, that you had made significant steps toward your rehabilitation, which could be best supported and promoted by a lengthy period of supervision.
60He urged upon me your personal narrative, your fractured and dislocated sense of family and the contribution that your history has made both to your drug and alcohol use and to the validation that you derived from belonging to an organisation such as the Last Kings.
61He urged upon me your plea of guilty, which of course brings with it a demonstrated willingness to facilitate the administration of justice, the utilitarian benefit to the community of saving the time and expense of a trial which, in your case, may been particularly long and complex.
62He submitted that I should have regard to your expressed remorse and that you are now genuinely remorseful for your offending. He submitted I should have regard to the steps that you have taken whilst in custody on remand to address the underlying reasons for your substance abuse and thus for your offending. He further submitted that the principles identified in propositions 1 to 4 in the case of Verdins are engaged. The evidence was also such, he submitted, as to clearly engage principle 6.
63In my view, whilst the evidence of those who have assessed and treated you may explain why an organisation such as the Last Kings held for you a prospect of belonging and identity, and may explain why you would fall into a pattern of such craven people pleasing, it falls short of demonstrating any realistic connection or causal link between any impairment of mental functioning underlying those diagnosed disorders and your offending.
64Accordingly, I find no basis for the engagement of principles 1 to 4 of Verdins. However, the evidence does satisfy me that at present, there is a risk of imprisonment having a significant adverse effect upon your mental health that may exacerbate the manifest symptoms of your PTSD, thereby enabling me to mitigate to some extent the sentence that I would otherwise have passed.
65Mr Kucukvardar, your offending comprises serious examples of serious offending. At varying times, you helped transport and sell various drugs of dependence, you collected and transported cash, you recovered debts and dealt with assets in order to generate cash flow. You used different mobile phones to avoid detection, you spoke and messaged in codes. You used, at times, motorcycles to avoid interception. Throughout the period of your offending, you acted as a willing, loyal and enthusiastic participant, giving yourself wholeheartedly to the tasks that you were set.
66Mr Kucukvardar, those of us who sit in the criminal courts, day after day, are aware of this one simple truth: drugs are tearing the heart out of our community. Our community is quite simply losing a generation and those who participate in this evil trade can expect to be punished, if and when they come before the courts.
67What might start out as a fun Saturday night can quickly spiral into the horrors of addiction. And in addiction, many lose everything, including their lives.
68Robert Ale ran a criminal enterprise, dedicated to the wholesale distribution of drugs and to ensuring through various means of enforcement that the business would be carried out effectively and without any challenge. In my view, such a criminal enterprise constitutes a direct challenge to the very fabric of our society.
69Such a criminal enterprise cannot exist without the participation of people prepared to perform particular tasks. You gave yourself willingly to Mr Ale and his enterprise, and displayed to him what can only be described as an unquestioning loyalty such that Mr Ale was confident you would perform any necessary task.
70Your offending, Mr Kucukvardar, was truly lawless and represents a threat to the community and from which our community needs protection.
71I accept that at the time of being introduced to Mr Ale and his enterprise, you felt lost and abandoned. You lacked identity and you lacked direction. I accept Mr Ale and his enterprise provided you with that very sense of identity and belonging which you so desperately craved. I am told you somehow felt you could not say no because if you did, the members of the gang might look down upon you thereby echoing the perceived disdain that you experienced at the hands of your father.
72Quite simply, Mr Kucukvardar, in order to please you threw away your moral compass. In order to be liked, you abandoned your sense of right and wrong. You knew what you were doing, you knew it was wrong. The effort that you put in to secure the success of the shooting of a residential property in Doreen demonstrates, in my view, a willingness on your part to inspire fear in ordinary members of the public.
73Your readiness and preparedness to set fire to a vehicle simply on the say-so of your boss likewise indicates the true extent of your complete immersion in this criminal enterprise. Your moral culpability for your offending, that is the extent to which you could be held responsible for your actions and for their consequences is, in my view, high.
74At any stage, Mr Kucukvardar, you could have walked away but you chose to stay, basking in the approbation of your criminal peers because, quite simply in my view, Mr Kucukvardar, you enjoyed it. As your text on 10 November at 6:25pm, from the apartment at Albert Park to your boss stated: "I love my job".
75You performed an important role. You acted as guide to new recruits in their first criminal expedition, ready to set a vehicle on fire solely upon your boss’ request. Your offence was protracted, you were a trusted servant and enforcer and as I have already said, your offending in my view can be described as completely lawless.
76In sentencing you, I must have regard to a range of different factors. I must give effect to principles of both general deterrence and specific deterrence.
I must deter others from behaving as you did and I must deter you from any repeat of such behaviour. I must express the community's denunciation of your conduct and I should also promote, if possible, your rehabilitation. I must take into account the effect of your crime upon the community and I must have regard to current sentencing practices and the maximum penalties imposed by Parliament. In short, I must try to balance your personal circumstances with the circumstances of your offending.77I have regard to all of the matters urged upon me on your behalf. I have regard to your plea of guilty, which I accept was entered an early opportunity if not the earliest. I am prepared to accept that you now express remorse and that you are seeking to change your future path. I accept the steps that you have taken to remain drug free whilst in detention and that remaining drug free whilst in detention is an expression of choice on your part.
78I accept that imprisonment, at present, presents a risk of an adverse effect upon your mental health in that it may exacerbate the manifest symptoms of post-traumatic stress disorder. Nonetheless, in my view, the gravity of your offending is such that principles of general and specific deterrence, denunciation and protection of the community are the primary sentencing considerations in this case. Those purposes cannot be served by anything other than a very substantial term of imprisonment.
79Can you stand up please, Mr Kucukvardar?
80On Charge 1, trafficking in a large commercial quantity of a drug of dependence: you are sentenced to a term of imprisonment of eight (8) years.
81Charge 2, trafficking in a drug of dependence: you are sentenced to a term of imprisonment of twelve (12) months.
82Charge 3, conspiracy to engage in reckless conduct endangering serious injury: you are sentenced to a term of imprisonment of three (3) years and three (3) months.
83Charge 4, prohibited person possessing a firearm: you are sentenced to a term of imprisonment of eighteen (18) months.
84Charge 5, conspiracy to commit arson: you are sentenced to a term of imprisonment of two (2) years.
85Charge 6, recklessly deal with proceeds of crime: you are sentenced to a term of imprisonment of fifteen (15) months.
86Charge 7, trafficking of a drug of dependence: you are sentenced to a term of imprisonment of twelve (12) months.
87On the Summary Charge, you are convicted and discharged.
88As to cumulation, I order that twelve (12) months on the sentence on Charge 3, three (3) months of the sentence on Charge 4 and nine (9) months of the sentence on Charge 5 run cumulatively to each other and cumulative to the sentence on Charge 1.
89This makes a total effective sentence of ten (10) years’ imprisonment.
90I fix a non-parole period of six (6) years and nine (9) months. Such term will provide you with the period of supervision that your counsel urged upon me, should you be granted parole.
91Now gentlemen, what is the PSD?
92MR SMALLWOOD: 527 days, not including today, Your Honour.
93MR LIVITSANOS: It is agreed, Your Honour.
94HIS HONOUR: Thank you very much, Mr Smallwood. Pursuant to section 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 527 days of the sentence I have imposed upon you and direct that this be entered into the records of the Court.
95Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), I indicate that but for your plea of guilty, you would have been sentenced to a term of imprisonment of thirteen (13) years with a non-parole period of ten (10) years.
96By virtue of your conviction on Charge 1, and pursuant to section 89(D)(i) of the Sentencing Act, you are declared a serious drug offender and I direct that this be entered into the records of the Court.
97Now, Mr Smallwood, custody management issues if you can assist to go on the order? Thank you. Is Mr Kucukvardar still experiencing manifest symptoms to you knowledge?
98MR SMALLWOOD: Yes.
99HIS HONOUR: He is. They are currently being, perhaps if not sufficiently treated, working on the basis that Corrections have done everything it can, Corrections are currently aware of the symptoms?
100MR SMALLWOOD: Yes, that is so, Your Honour. All though it might be of assistance if the reports that have been tendered during the course of these proceedings be provided ‑ ‑ ‑
101HIS HONOUR: That is what I was going to propose. I was going to make them available to Corrections. What I would do expedite - is expedite these sentencing reasons and send them with them all those reports.
102MR SMALLWOOD: In my respectful submission, that would be of great utility.
103HIS HONOUR: Is he on medication at the moment? Would you know?
104MR SMALLWOOD: Yes, he is. Unfortunately I am not - may my learned instructor approach, Your Honour? Thank you for that opportunity,
Your Honour.105HIS HONOUR: Not at all.
106MR SMALLWOOD: I am instructed that Mr Kucukvardar is currently prescribed 50 milligrams per day of Sertraline.
107HIS HONOUR: Is that Sertraline?
108MR SMALLWOOD: Yes, Your Honour.
109HIS HONOUR: Yes. All right, that should - all right, now a section 464ZF forensic order was sought. I understood that is not opposed?
110MR SMALLWOOD: Not opposed, Your Honour. There is also application, as
I understand it, by my learned friend for two forfeiture orders and a disposal order?111HIS HONOUR: Two forfeiture orders and one disposal order. That is what
I have got - so you are the same page in that regard?112MR SMALLWOOD: No opposition.
113HIS HONOUR: All right, well I shall make those orders.
114MR SMALLWOOD: As the court pleases.
115HIS HONOUR: Mr Kucukvardar, I have made an order permitting the authorities to take a forensic sample from you. That is essentially means taking a buccal swab. I am sure you will cooperate Mr Kucukvardar but I have to tell you as a matter of law the following: Should you refuse to allow the sample to be taken, then officers are entitled to use such force as is necessary in order to take that sample.
116Now if there is any - is there anything that I have forgotten to do that I ought to have done gentlemen?
117MR SMALLWOOD: No, Your Honour.
118MR LIVITSANOS: Not from this end, no, Your Honour.
119HIS HONOUR: No, all right then. Thank you very much, Mr Livitsanos.
120MR LIVITSANOS: As Your Honour pleases.
121HIS HONOUR: Thank you very much, Mr Smallwood.
122MR SMALLWOOD: As the Court pleases.
123HIS HONOUR: Thank you, Mr Kucukvardar. It is not too late for you to get a life back on track.
124OFFENDER: Thank you, Your Honour.
125HIS HONOUR: Thank you, you can take him down.
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