Director of Public Prosecutions v Latif

[2024] VCC 1111

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01489
Indictment No. N10272855.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

LATIF LATIF

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2024
DATE OF SENTENCE:	25 July 2024
CASE MAY BE CITED AS:	DPP v Latif
MEDIUM NEUTRAL CITATION:	[2024] VCC 1111

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – Plea of guilty – Traffick commercial quantity drug of dependence (cocaine 1 day duration) – No evidence of selling drug – Items found which indicate possession of drug for sale – Sentenced on that basis – No findings made as to precise role in distribution of drugs – Limited criminal history – Delay – History of drug abuse – Undertaken residential rehabilitation program 3 month’s duration – Prospects of deportation – Expert opinion – suffering from depression and anxiety disorder and substance abuse disorder

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Duran v The King [2023] VSCA 314; R v Verdins 16 VR 269; Bugmy v The Queen (2103) 249 CLR 571

Sentence:                  Convicted and sentenced to 4 years’ imprisonment with non-parole period of 2 years’ imprisonment – Pre-sentence detention of 573 days’ imprisonment declared as having already been served as part of the sentence imposed – Ancillary order Forfeiture and Disposal

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Singh	Office of Public Prosecutions
For the Accused	Mr P. Bloemen	James Dowsley Associates

HER HONOUR:

1Latif Latif, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence, namely cocaine. 

2The maximum penalty for this offence is 25 years’ imprisonment.

3In sentencing you, I must have regard to the maximum penalty as this reflects the seriousness with which Parliament regards the offence that you have committed.

4The Prosecution Opening is based on a number of facts as recounted by the Court of Appeal in this matter in the course of an interlocutory appeal, that case being referred to by way of a pseudonym of Duran v The King [2023] VSCA 314.

5More briefly, at about 2.30 am on 9 February 2022, police officers who were conducting divisional van duties in the Dandenong area observed a silver RAV4 parked outside a real estate agency on the Princes Highway.  You were in the driver's seat of the car and you appeared to be speaking to a male who was standing outside the driver's side window, despite the fact the window was wound up.

6Police parked their van and, after an initial conversation, conducted a search of the RAV4.  Police had asked you if you would consent to the search, but you refused.  When police searched the vehicle, they found two mobile phones in the centre console, a ziplock bag containing a white powder which turned out to be cocaine and a small safe in the boot of the car.  You were subjected to a pat down search and two further mobile phones and $380 cash was found on your person.

7You refused to give police the combination to the safe.  The safe was seized and later opened with a police issue tool.  Inside the safe was a black plastic bag containing multiple ziplock bags and a Coles shopping bag with a large square shaped block of white powder.  There were 20 plastic bags, one of which contained another 29 plastic bags.  All 20 of the plastic bags contained a white powder substance which, upon scientific analysis, was found to contain cocaine.  The cocaine in the 20 bags ranged in purity from 34-78 per cent.  In total, there was 912.1 grams of white powder, of which 635.8 grams was pure cocaine.  The safe also contained a set of scales. 

8The prosecution case was put on the basis that you were in possession of the cocaine for sale.

9The Prosecution Opening went on to indicate that you exercised your right to answer 'no comment' to questions put to you, apart from Question 79, where you admitted that the safe was yours.

10Mr Latif, your offending is most serious and deserving of a punishment which is just in all the relevant circumstances of your case.  Your conduct must be firmly denounced.

11The quantity of cocaine of which you were in possession was most significant and just short indeed of the threshold for large commercial quantity of a mixture containing this drug.

12Although there is no evidence of you actually selling the drug, it is obvious from the other items found by police that you were in possession of the drug for sale and therefore prepared to assist in the distribution of illicit substances. 

13As has often been said by the Courts, drugs are a scourge on our community- they negatively impact not only those who consume them but also others in the community in a variety of most undesirable ways.

14I have insufficient material before me to precisely ascertain your role in relation to distribution of the cocaine found in your car. 

15Your counsel, Mr Bloemen, frankly conceded that he was unable to provide me with much in the way of evidence in support of his submission that you were in possession of the cocaine for others and that you were being drip fed the drug as payment for this.

16In the end, having regard to your itinerant lifestyle at the time and the lack of evidence of you leading a lavish lifestyle, but also having regard to the fact that you were obviously entrusted with a valuable quantity of cocaine and you were also in possession of a sum of cash when searched, I am unable to find what your role was in respect of the drug trafficking enterprise that you appear to be a part of. Mr Bloemen did not have any instructions as to how you were able to pay for the hire car and, in his written submissions, said that there was no evidence of you having a financial capacity to purchase such a quantity of drugs.  Whilst this would appear to be the case, I am simply unable to make findings in this regard.  However, in all the relevant circumstances, on any view of things, I do not find that you were at the head of the enterprise, such as it might have been.

17In sentencing you, I take into account your most limited criminal history, comprising one appearance at the Dandenong Magistrates’ Court on 15 October 2018, where you were dealt with for theft from a motor vehicle and possess cannabis.  Without conviction your matters were adjourned for 12 months.  Obviously, you did not breach the adjourned undertaking by further offending at that time.  The prior matters have very little relevance to the matter now before me and are also quite dated.

18In sentencing you, I have factored in that the charge is in relation to one day of trafficking and I was told that at the time of offending you were living out of home, living in hotel rooms and in the hire car.  I was also told that you were using cocaine, cannabis and MDMA at that time. 

19Mr Bloemen submitted that there was no evidence of 'actual' trafficking, which I took to mean that there was no evidence of you actually selling drugs.  I sentence you on the basis that you were in possession of the cocaine for sale as put by the Prosecution and clearly there was the wherewithal to sell the cocaine when one factors in the deal bags and scales, but I do not sentence you on the basis of you actually selling the drug.

20I take into account your background.

21You were born in Afghanistan in February 2000. 

22You have a 26-year-old brother, who works in the construction industry.  You have a poor relationship with him.

23You have a younger sister who is 17, and a brother who is 14, both of whom are still at high school.

24When you were five years old, your family moved from Afghanistan to Pakistan during the war. You moved to Pakistan as your father had enemies in Afghanistan.

25I was told there was family violence of both a physical and verbal kind from your father towards your mother.  You were also subjected to violence, mainly on account of poor performance at school. 

26When you were about 10, you witnessed a bombing that killed about 600 people and injured many others.  This occurred in Quetta, Balochistan.  I was provided with an extract from Wikipedia in relation to this incident.  According to the article, 70-80 kilograms of explosives had been planted inside a water tank which was then installed on a tractor trailer.  The bomb went off in a market area where there were many grocery stores, several language schools and a large computer centre.  Many adults and children were in the vicinity when this occurred. 

27I was told that everyone in the area had to help with the aftermath of this dreadful event, which meant that you and your brother were required to help clean up the scene.  I was told this included picking up the limbs of people and other body parts that were scattered in the area.

28I was also told that in Pakistan it was common for people to be armed with weapons and that, on one occasion, you witnessed a friend accidentally shoot another friend.

29I was also told that you are from a minority religion, namely Muslim (Shia) – Hazara.  This means that people from your religion were constantly persecuted and that such persecution included murder and mutilation.  As you were Hazara, you were mistreated.

30You came to Australia with your parents on 15 February 2016.  Your paternal grandfather had been living here already and your family was sponsored.  You lived in the Dandenong area, with the entire family living at the one address.  This meant that a total of 10 people lived in a three-bedroom house.  Eventually, your aunties moved out.

31When the family first came to Australia, your father lived separately from all of you for about 15 years. 

32You have a fractured relationship with your father, who has ongoing issues with drug and alcohol abuse as well as gambling.

33Your father has worked as a grocer in the past, but I was told he now works as a barber.  Your mother has been engaged in home duties.

34Fairly recently, your mother and grandmother were hit by a car, when pedestrians.  They were hospitalised for a period of weeks.  Your mother was housebound for six months after the accident and she has just recently commenced walking without assistance.  In the past, she has had skin cancer on two occasions which was successfully removed.

35In terms of your education, you were homeschooled in Afghanistan for about six months.  You attended schools in Pakistan from the age of six until 16.  You reported having learning difficulties at school and you were easily distracted.  You attended Dandenong High School from Years 9-11.  You were eventually 'kicked out', according to you, because of poor grades.  You said that you struggled to understand the tuition.  You particularly struggled with English, although you had studied the language in Pakistan albeit that these were US-based language skills.  You encountered difficulties with communicating when in Australia and had to relearn a good deal.

36After leaving school, you obtained a six-month Certificate II in Carpentry, working with a company called 'Tribuild' in Dandenong.  You then worked in tiling for about six months.  After this, you worked as a housepainter with your aunty’s husband for about 18 months, then working in powder coating for about three to four months.

37After being released on bail for this offence and completing a rehabilitation program, you commenced training as a barber.  You had been working six days a week at a barber shop in Doveton, basically undertaking an apprenticeship in this field. 

38In relation to your drug use, I was told that you commenced using MDMA on a weekend basis when you were about 19.  At that time, you also started using cannabis.  This was in the context of a party lifestyle that you were living at the time.  You were also drinking heavily. 

39You were introduced to cocaine when you were 21 via your friendship group.  Your cannabis use became a daily habit as did cocaine, with you consuming between 2-3 grams per day.  Your drug use was at its apex at the time of your arrest.

40I was told that before your arrest and remand you had been consistently using cocaine and cannabis on a daily basis as well as amphetamine and methylamphetamine, if available, through so-called friends.  None of the drug use was intravenous.

41I was told that during your time on remand you were prescribed with an antidepressant, but I was told that as at the plea hearing date at least, you were unmedicated.  You had reported a history of anxiety, and I was told that you had reflected on your past during the time that you spent in custody.

42A report was prepared by Mr Ian Mackinnon, consultant psychologist, dated 2 April 2024.  He assessed you via video link on 28 March 2024. 

43You gave an account of your background that was generally consistent with the matters conveyed to me by your Counsel.

44You reported to Mr Mackinnon that in mid-2021 you were kidnapped by a group of people and bashed to the point of unconsciousness.  You said that your back was beaten and you could not sleep for many nights.  You did not seek medical attention for your injuries nor did you report the matter to police.

45You told Mr Mackinnon that whilst on remand you spoke to a psychologist, which was the first time you had ever spoken to anyone like this, one on one.  You spoke of times when you felt suicidal, saying that going to gaol had changed your whole life and gave you time to think about things.

46Mr Mackinnon was of the view that, at the time he assessed you, you were not suffering with any major psychological disorder and that you had appeared to have overcome a pre‑existing substance abuse disorder which entailed habitual use of cocaine, and your pre-existing depression and anxiety appeared to have largely ameliorated.  He was of the view that you did not possess an inherently antisocial or criminal character. 

47He said that you had noted the benefits you had gained by being remanded in prison for an extended period and had shown a growth of insight into your personal problems and how you might better manage these.

48Mr Mackinnon stated that, at the time of the offending, you were suffering with the following major psychological disorders:

(a)   mixed depressive and anxiety disorder (MDAD); and

(b)   substance abuse disorder (SAD).

49He said that, based on the information available to him, these disorders had made:

'major contributions to his offending, by degrading his ability to apply good judgement and sound reasoning, weakening his self‑discipline, fuelling destructive and self-destructive impulses, reducing his ability to apply consequential thinking, and diminishing his awareness of his normal adult and community responsibilities.' (Paragraph 86)

50You reported to Mr Mackinnon that you had been 'hanging with the wrong crowd' at the time of the offending and you were influenced by their antisocial values and ambitions, getting caught up in events that you did not instigate.  You also said the kidnapping and serious assault that you suffered in 2021 had a bad effect on your mental health and helped fuel your cocaine abuse. 

51You did not wish to give any further explanation for your offending or identify anyone associated with it. 

52Mr Mackinnon said that you had been traumatised by some of the distressing experiences you had encountered before coming to Australia and then again by the kidnapping and assault which you said that you suffered during 2021.  He said that, over time, the effects of this trauma (that is, Post Traumatic Stress Disorder) appeared to have largely resolved to depression and anxiety 'which along with cocaine abuse, were major elements in the poor state of mental health that he laboured with, at the time of the 2022 offence'.

53Noting that you commenced taking drugs in the context of the party scene rather than in a bid to deal with mental health issues ostensibly, but also noting that you had experienced significantly traumatic events, it would appear that your substance abuse was, at least in part, a form of self‑medication. 

54Also, noting Mr Mackinnon’s view in relation to your depression and anxiety at the relevant time and his findings in this regard, I make a less than moderate reduction in your moral culpability in relation to the offending, especially insofar as your mixed depressive and anxiety disorder symptoms are concerned.  These had a relevant impact upon your ability to exercise good judgement and engage in sound reasoning, as well as to apply consequential thinking. 

55However, your substance abuse disorder was also attributable to you taking drugs in the context of the party scene, and so I have tempered the reduction that I would otherwise make in view of this aspect.

56I allow for the application of Bugmy in a general sense in view of aspects of your upbringing, which I am satisfied were deprived and which is evident from the various traumatic events in which you were involved as a child.  I make a moderate reduction in the weight that would otherwise attach to general deterrence.

57In view of the reduced weight to moral culpability because of Verdins considerations, I will further reduce to a less than moderate amount or extent, the weight which would otherwise attach to just punishment and denunciation, and make a further reduction in this regard to general deterrence.  If not for such reductions, the weight which would have attached to general deterrence would be very strong in a bid to deter others from offending as you have.

58I take into account in your favour your plea of guilty, which has facilitated justice in this matter.  As your counsel frankly conceded, your plea of guilty was not entered at an early stage but, ultimately, was entered after an interlocutory appeal brought by you was dismissed by the Court of Appeal, and then following a sentencing indication hearing before me.

59However, ultimately, you did save the witnesses the time and trouble of a trial and you saved the community the time and expense of a trial.  You ran a contested committal hearing where the central issue was the legality of the search of your car, and this was the subject of my pretrial ruling which saw you seeking to overturn this by way of interlocutory appeal.  You are not to be punished for taking such steps, as these are your rights.  However, the discount you would have received would have been a good deal greater if you had pleaded guilty at an earlier stage without the need for a contested committal hearing, and the steps taken in this Court before entering your plea of guilty.

60Your counsel did not submit that you were remorseful in relation to your offending in his written submissions.  However, he did point out that you had taken significant steps towards rehabilitation, which included attending a residential rehabilitation program after being granted bail in September last year.  He indicated that you had re-attended the rehabilitation facility since you were discharged from it, in order to cut the hair of people there and to talk to the clients there.

61It appears to me that you are sorry that you have placed yourself in such a bad predicament, which saw you spend a significant period on remand albeit that the time apparently gave you a chance to reflect upon matters for the better.  The course that you took in the Magistrates’ Court and in this Court is not too consistent with remorse.  However, I allow for something of it in view of your conduct since being released from gaol.  It appears that you are developing insight in relation to drug taking and the need for you to remain abstinent and away from negative influences.

62I was told that you had been remanded in custody on 9 February 2022.  On 5 September 2023, you were granted bail to a residential drug rehabilitation program.

63I was told that your experience of gaol comprised 14 days in quarantine at the Melbourne Remand Centre, which involved 24-hour lockdown conditions, with you spending the remaining period in Ravenhall.  You were also subjected to lockdowns there, where there were positive COVID-19 cases.  In all, you were subjected to a number of lockdowns during your time in custody which I have taken into account as a harsh form of custody.

64Whilst on remand you were involved in carpentry/woodwork, powder coating, as a food billet and also as a barber 'on the side'.

65You obtained certificates in relation to a number of programs aimed at aspects of rehabilitation and developing some skills in the workplace. 

66You returned six negative urine screens from 28 August 2022 to 27 January 2023. 

67Upon release from gaol on bail, you attended the Uniting Gippsland Youth Residential Rehabilitation Program, which was a three-month program. 

68You undertook counselling, attended Narcotics Anonymous/Alcoholics Anonymous meetings, group therapy sessions and various other courses to assist you in drug rehabilitation.  You also returned clean urine screens whilst there.

69The program, which was based in Traralgon, was a 24-hour care setting.

70Since being discharged from the program on 13 December last year, you have lived with your auntie, who attended court in support of you and gave evidence in support of you at the bail application last year.  She also provided a character reference in support of you, as did your brother, Sharif, and your employer, Salar Qambari.  Each of your character referees spoke very highly of you, and your brother and aunt also speak of the trauma to which you were subjected during your childhood.  I accept that you are of otherwise good character and it appears that you have a good deal to offer providing you can maintain a path of rehabilitation.

71I have also taken into account the letter from Jade Gittoes from Uniting, who spoke very well of your efforts whilst with them and verified your negative drug screens.

72A significant aspect of your case is your young age.  You committed this offence when you were only 22 and you are now 24.  The law provides that in a situation such as yours, it is important to maximise an offender’s prospects of rehabilitation, as this is both good for you and protecting the community.  I am most mindful of this aspect in your case and bear in mind that, in general, the maturity of a 22‑year‑old male is not optimal and no doubt had a role to play in your offending.

73In sentencing you, I have also taken into account the delay in this matter notwithstanding that a good deal of this might well be said to be attributable to the course that you and your legal representatives took in seeking to defend the charge.  However, regardless of this, I allow that there has been significant delay in the order of approximately two and a half years from the date of your offending, and that during this time you have had the anxiety of the matters hanging over your head. It might be said that you could have reduced your anxiety by pleading guilty at an earlier stage.  Nonetheless, you are entitled to an allowance for this aspect of delay.  Also, you have used the time, particularly whilst on remand and upon release, to demonstrate a path of rehabilitation

74In sentencing you, I allow for the fact that you spent three months or so in residential rehabilitation, which was a restriction on your freedom of a fairly substantial kind.  I have also had regard to the fact that you spent a significant period on remand, which was your first time in gaol, and factor in the various harsh aspects of this to which I have previously referred. 

75I also take into account that there is some prospect of deportation in your case, which would make any time in custody more difficult due to your anxiety about this in circumstances where you have lived a good deal of your life in Australia now, and where you have family and other connections. 

76I am unable to say whether you will definitely or probably be deported, as to do so would be to speculate.  There is no documentation before me which points to this as a likely consequence of your offending, although, from my knowledge of current immigration law, there is certainly a risk of this in view of what can happen to people in your situation who are not citizens here. I understand that you recently received some advice in this regard. From what your Counsel Mr Bloemen has said, I allow that time in gaol for you will be harder because of anxiety that you may and have experienced in relation to facing the risk of deportation after serving sentence, in circumstances where you have your life and family here and returning to your country of birth would be most difficult for you.

77In sentencing you, I have also taken into account current sentencing practice in relation to the offence you have committed.  I have also taken into account what the Court of Appeal has said about the inadequacy of sentences for offending such as yours.

78In relation to current sentencing practice, this is but one, and not a controlling, consideration in sentencing you.

79Your counsel did not press his submissions that s5(2H) of the Sentencing Act 1991(Vic) exceptions applied to your case. If any exception had been made out, it would have been open to me, at least theoretically, to impose a sentence which involved a gaol term in combination with a community corrections order. However, in discussion with your counsel, I indicated that I was unable to find that the exceptions upon which he sought to rely were made out.

80In those circumstances, he did not press the matter, instead submitting that, in your case, a head sentence with a non‑parole period which involved a lengthy gap between the two was appropriate.  I accepted this was appropriate and Mr Singh for the Crown also accepted this.

81In all the relevant circumstances, I assess your prospects of rehabilitation as being rather good, and I do not place much weight on specific deterrence or protection of the community.  I have previously told you about the weight that I place on other sentencing principles and the reduction of weight because of Verdins and Bugmy considerations.

82I am also most mindful of what I said at the sentence indication hearing.

83In the end, I have arrived at a sentence which, in my view, gives appropriate weight to all relevant sentencing considerations in your case. 

84Would you please stand up, Sir.

85You are convicted of the offence.

86I make the disposal and forfeiture orders as agreed by the parties, noting that there are other items which are in dispute that might be pursued by police at a later time.

87You are sentenced to four years' imprisonment, and I direct that you serve two years before becoming eligible for parole.

88I declare that you have already served 573 days which will be deducted from that sentence.

89If not for your plea of guilty, I would have sentenced you to six years’ imprisonment with a non-parole period of four years. 

90Take a seat please.

91Is there anything arising from those remarks?  No.

92COUNSEL:  No, Your Honour.

93HER HONOUR:  All right.  Now I think I really have to have Mr Latif removed, Mr Bloemen - - -

94MR BLOEMEN:  Yes.

95HER HONOUR:  - - - unless you want to have a quick word with him while I remain on the Bench.

96MR BLOEMEN:  No, Your Honour.  I will see him downstairs.

97HER HONOUR:  All right, yes very well. 

98Thank you, if you could please remove Mr Latif.  You can't approach him, sorry, you can't approach him.

99We will now adjourn, thank you.

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