Director of Public Prosecutions v Kunto

[2023] VCC 34

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-22-01826

DIRECTOR OF PUBLIC PROSECUTIONS

V

MIRINES KUNTO

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JUDGE:	HER HONOUR JUDGE HARPER
WHERE HELD:	Melbourne
DATE OF HEARING:	22 January 2024
DATE OF SENTENCE:	31 January 2024
CASE MAY BE CITED AS:	DPP v Kunto
MEDIUM NEUTRAL CITATION:	[2023] VCC 34

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Traffick large commercial quantity methylamphetamines, possess drug of dependence, commit indictable offence on bail

Legislation Cited:      Sentencing Act 1991

Cases Cited:R v Verdins [2007] VSCA 102, Tran v R [2012] 35 VR 484, Rahmani v The Queen [2021] VSCA 51, Quah v The Queen [2021] VSCA 164

Sentence:                  9 years 10 months imprisonment.  Non-parole period of 6 years  8 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Teo	Office of Public Prosecutions
For the Offender	Ms C. Marcs	Stephen Andrianakis & Associates

HER HONOUR:

1Mirines Kunto, you have pleaded guilty to one charge of trafficking in a large commercial quantity of a drug of dependence, namely methylamphetamine, one charge of possession of a drug of dependence, namely cocaine, and one related summary offence of commit an indictable offence whilst on bail.

2The maximum penalty for trafficking in a large commercial quantity of a drug of dependence is life imprisonment.  There is a standard sentence of 16 years for this offence.

3The maximum penalty for possession of a drug of dependence is one year imprisonment where the court is satisfied the possession was not for the purposes of trafficking, and for commit an indictable offence on bail, the maximum penalty is three months' imprisonment.

Circumstances of the offending

4The circumstances of your offending were outlined in Exhibit A, the summary of prosecution opening.  I will summarise those facts here.

5By way of background, in March 2022 members of Victoria Police attached to the Divisional Response Unit ('DRU') at Fawkner police station, were involved in an ongoing operation codenamed 'HARKENED-2021.'

6This operation involved the investigation of incidents of trafficking large commercial quantities of illicit drugs of dependence in Victoria.  As part of this operation, Victoria Police identified David Braione as a person of interest.

7On 31 March 2022 members of Victoria Police who were part of the State Surveillance Unit ('SSU') were conducting surveillance as part of Operation HARKENED-2021.

8At 11:05 am on 31 March 2022 operatives saw Mr Braione driving a white 2013 Ford Ranger utility in a residential area in Keilor Downs. Mr Braione was being followed by you in your own vehicle.

9You and Mr Braione were observed briefly meeting beside your respective vehicles before you separately drove away.

10SSU operatives maintained surveillance of your vehicle and notified police from Fawkner DRU via radio of your movements.

11At 11:20 on the same day, Senior Constables Andrew Titta and Benjamin Roberts of Fawkner DRU were driving in an unmarked police vehicle when they observed your vehicle driving in Pascoe Vale South.

12The police officers followed your vehicle for a short period before activating their lights and siren.

13You were intercepted and provided police with your name and produced your Victorian driver licence which verified your identity.

14You appeared nervous according to police and said you were on your way to have lunch in Epping and then going to pick up your girlfriend from the airport.

15Police observed boxes packed in your vehicle as they were talking with you.  You were informed that they were going to conduct a search of your vehicle and a pat- down search of you.

16Before conducting the searches, police asked whether there was anything in your vehicle that you should not have, to which you replied 'No'.

17Senior Constable Titta proceeded to conduct a pat-down search of you. As he did so, other police members arrived to assist with the intercept.

18When conducting the search of your vehicle, police found a wallet in the centre console. Inside the wallet was a small zip lock bag containing white powder. You told police it was cocaine.

19You were then arrested for being in possession of a drug of dependence.

20You informed police that there were items in a container on the front passenger floor that contained more cocaine.   

21As police continued to search your vehicle, they found a black plastic tub located in the front passenger footwell of the vehicle. Inside the tub police found the following items:

(a) two large zip lock bags each containing a crystal substance; and

(b) a green cotton bag containing $154,955 cash in wads of $50 and $100 notes.

22Your vehicle was taken to Fawkner police station where it was thoroughly searched and photographed.  In addition to the items in the tub outlined above, the following items were found inside the vehicle:

(a) In a plastic postal bag in a cardboard box that was located on the rear driver‑side footwell:

(i) one clear double zip lock bag containing a crystal substance on which was hand-written '1.000 kilogram' in black ink;

(ii) one clear double zip lock bag containing a crystal substance on which was hand-written '0.500 kilograms' in black ink.

(b) Inside a black bum bag located in the centre console was:

(i) an envelope on which was hand-written 'KK' containing $5,000 cash in Australian currency; and

(ii) an envelope on which was hand-written 'KIKI' containing $1,000 cash in Australian currency.

(c) Inside your wallet located in the console was:

(i) a small zip lock bag containing white powder, being the same zip lock bag referred to above; and

(ii) $100 cash in Australian currency.

(d) Inside a cardboard box located in the rear passenger footwell was a postal bag inside of which was one clear plastic bag containing brown powder on which was hand-written '.454' in black ink.

23On 28 April 2022 the five bags seized from your vehicle by police containing suspected illicit substances were given to Victoria Police Forensic Services Centre for analysis.

24The results of the analysis found that all bags contained methylamphetamine of purity levels ranging between 14 per cent and 86 per cent.

25The total quantity of the substances containing methylamphetamine found in the five bags weighed 2435.3 grams. This forms the basis of Charge 1.

26The white powder in the zip lock bag found in your wallet was cocaine with a purity level of 52 per cent, weighing 1.2 grams. This forms the basis of Charge 2.

Gravity of offending

27Trafficking in a large commercial quantity of a drug of dependence is a most serious offence, as reflected in the maximum penalty of life imprisonment imposed by parliament.

28You were in possession of just under 2.5 kilograms of methylamphetamine.  It is a significant amount, more than three times the statutory large commercial quantity, but this is not the only factor to be considered in the gravity of your offending.

29On the evidence before me, your role was confined to a 15-minute period from the collection of the drugs to being intercepted by police.  There is no evidence of an exchange of money given the significant quantity of cash found in your vehicle.  I note that I am not sentencing you in relation to that cash.

30The potential harm created by the trafficking of such a large amount of methylamphetamine being on-sold is tremendous.  It is well established that possession for sale is no less serious than the actual harm caused by distribution.

Plea of guilty

31You pleaded guilty on 19 December 2023 after a sentence indication hearing before me on 11 December 2023.

32While not an early plea, you have saved the community the time and expense of running a trial.  As such you have facilitated the administration of justice and you are entitled to a benefit for that.

33Your plea is also indicative of some remorse which I take into account.

Personal circumstances

34I turn now to your personal circumstances.

35You were born in Bosnia in April 1984 and you are now 39 years old.

36You have a younger brother and routinely experienced physical abuse from your father in your formative years.  He died in 2004 while your mother and brother remain in Bosnia.  You have regular video call contact with them.

37Your education was disrupted by the war and you have distressing memories from this time involving the violent deaths of several people.  You left home at 15 and lived with friends but you were still able to successfully complete secondary school.

38You worked for a period as a truck driver before being recruited by NATO at the age of approximately 21. You served in Afghanistan for six years, completing some 30 tours between 2006 and 2014.  You suffer further distressing memories from that period.

39On a return to Bosnia during a break in your NATO service, you met your Australian partner, Jasmine.  You spoke for years until she visited Bosnia and convinced you to come to Australia in 2014.  Together you had a son, Max, in 2016.  You separated in approximately 2020 and you have not seen Max since 2022.

40You met your current partner, Allison Jurd, a few months before your arrest for these matters.  She resides in Queensland and remains supportive of you.

41You began to experiment with illicit drugs in 2015.  Cocaine was your drug of choice although you tried cannabis and amphetamine.  You have stated that cocaine kept you going when you were tired and helped you to escape flashbacks.

42In 2020 you were involved in a motorcycle accident in which you sustained a traumatic brain injury and a fractured cheek.

43I received a number of medical reports on your behalf, including Peninsula Health medical records, letters from Dr Robert Kruk, and a report from psychologist, Marliese Bovenkirk.

44I also received a report from Dr Jacqueline Rakov dated 9 October 2023.

45Dr Rakov’s assessment of you and examination of collateral information found that you suffer from post-traumatic stress disorder as a consequence of the war in Bosnia during which you grew up and from your service in Afghanistan, a traumatic brain injury from the motorcycle accident in 2020 and schizophrenia first diagnosed in 2019.

46In her report Dr Rakov opined that:

'There is no evidence to suggest Mr. Kunto was labouring under the direct effects of a mental illness which led to the offending, such as delusional state driving behaviour.'

47Dr Rakov gave evidence before me in the course of the plea where she elaborated on the above.  She stated that while there is no evidence as to the direct effect of your conditions at the time of your offending, your brain was nevertheless affected in a general sense.

48While she did not assess you at the time of the offending, Dr Rakov stated that PTSD affects executive function, a traumatic brain injury globally impacts cognitive functions and schizophrenia may present as persistent or enduring paranoia.  She stated that these effects are not absolute or binary and may be apparent in a lack of foresight or ability to weigh risk, benefit and consequences.

49Ultimately, Dr Rakov found that your conditions contributed to your behaviour in a global sense, but having not conducted a contemporaneous examination of you, she could not qualify the precise extent, if any, to which the offending was impacted.

Sentencing principles and factors

50Mr. Kunto, your diagnoses of PTSD, traumatic brain injury and schizophrenia clearly pre-date the offending, however, I am not satisfied that they were operative at the time of your offending such as to reduce your moral culpability, general deterrence or specific deterrence in line with R v Verdins [2007] VSCA 102. 

51I find no satisfactory nexus between your mental health conditions and the offending.  While I accept the authority of Tran v R [2012] 35 VR 484 that a causal connection is not the only way by which moral culpability can be reduced, I am not satisfied that at the time of the offending your ability to make calm and rational choices and your ability to exercise appropriate judgment were necessarily impaired.

52I do, however, take your diagnosed conditions into account and give them weight in a general sense as factors particular to you.

53I do accept that prison will be more onerous for you than for someone without the mental health conditions from which you suffer, and I moderate Verdins Limbs 5 and 6 accordingly.

54Charge 1 is a standard sentence offence with a standard sentence of 16 years.

55The standard sentence for an offence is a sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness. 

56I must take the standard sentence into account as one of the factors relevant to sentencing.  This requirement is to be treated as a legislative guidepost having the same function as the maximum penalty, it does not affect the established instinctive synthesis to sentencing or require or permit two-stage sentencing.

57The court must only have regard to sentences imposed in cases where the standard sentence regime applies.  I will return to these shortly.

58I have taken the standard sentence for trafficking in a large commercial quantity of a drug of dependence into account as one of the factors to consider in my instinctive synthesis of all the relevant factors in your case.  I consider your offending to fall below the mid-range of seriousness.

59Pursuant to s11A of the Sentencing Act 1991, the non-parole period I impose for a standard sentence offence must be at least 60 per cent of the total effective sentence, unless I direct otherwise.

60I have considered several comparable standard sentence cases.  Although of course each case turns on its own facts, I note in particular the matters of Rahmani v The Queen [2021] VSCA 51 and Quah v The Queen [2021] VSCA 164, each of which has some parallels with the instant offending.

61You have one prior appearance for a non-drug related matter.  This, together with Dr Rakov’s assessment of you as being a low risk of reoffending, means that while specific deterrence is a feature of the sentence I impose, it is one which carries somewhat less weight than it otherwise might.

62I consider your prospects of rehabilitation to be good, conditional on you accepting treatment for your underlying mental health conditions.

63General deterrence, however, is of paramount importance in cases such as this.  The sentence I impose must serve to deter others from trafficking in drugs or possessing them for sale, particularly in such large quantities, given the repercussions that are felt throughout the community by way of drug trafficking and use.

64I take just punishment and denunciation into account.  Community protection is also a very real feature of the sentence as the potential harm to be realised from trafficking in such a large quantity of methylamphetamine is significant.

65Mr Kunto, would you please stand.

Disposition

66On Charge 1, trafficking in a large commercial quantity of a drug of dependence namely methylamphetamine, you are sentenced to nine years and 10 months' imprisonment.

67On Charge 2, possession of a drug of dependence namely cocaine, you are sentenced to one month imprisonment. 

68On the related summary charge of commit an indictable offence whilst on bail, you are sentenced to one month imprisonment.

69For the avoidance of doubt, the sentence on Charge 2 and that on the related summary offence, are to be served concurrently with each other and with the sentence imposed on Charge 1.

70That makes a total effective sentence of nine years and 10 months' imprisonment.

71I direct that you serve a non-parole period of six years and eight months' imprisonment before being eligible for parole.

72Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty the sentence I would have imposed would have been 13 years and six months with a non-parole period of 10 years and four months to serve before being eligible for parole.

73I direct that 671 days, excluding today, be declared as pre-sentence detention pursuant to s18 of the Sentencing Act 1991.

74I make the forfeiture and disposal orders sought by the prosecution.

75Pursuant to s89DI of the Sentencing Act 1991, I declare you to be a serious drug offender and will have this noted on the record.

76You may be seated, Mr Kunto.  Is there anything further from either party?

77MR TEO:  No, Your Honour. 

78MS MARCS:  No, Your Honour. 

79HER HONOUR:  Mr Kunto can be removed please.

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