Director of Public Prosecutions v Makan

[2025] VCC 18

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01442

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

ARMAN MAKAN

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2024
DATE OF SENTENCE:	24 January 2025
CASE MAY BE CITED AS:	DPP v Makan
MEDIUM NEUTRAL CITATION:	[2025] VCC 18

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — attempting to possess a commercial quantity of an unlawfully imported border-controlled drug (methamphetamine).

Legislation:Sentencing Act

Cases cited:R v Verdins (2007) 16 VR 209; R v Nguyen; R v Pham (2010) 205 A Crim R 106; Ong v The King [2023] VSCA 116; Adam v R [2023] NSWCCA 62; Hon Wing Lau v The Queen [2021] VSCA 162; Salazar v The Queen [2021] VSCA 125; O’Shaughnessy v R [2020] NSWCCA 124; Foley v R [2019] VSCA 99; R v Boimah [2017] QCA 50.

Sentence:                  Total effective sentence of 7 years, non-parole period 4years.

Section 6AAA of the Sentencing Act 1991: But for the plea of guilty, I would have sentenced you to a term of imprisonment of 9 years with a non-parole period of 6 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Z. Hough	Solicitor for the Office of Public Prosecutions
For the Accused	Ms J. Swiney	Giorgianni & Liang Lawyers

HER HONOUR:

1Arman Makan, you have pleaded guilty to one charge of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, namely methamphetamine. The maximum penalty for this offence is life imprisonment or a penalty of 7,500 penalty units.

2The circumstances of your offending are as follows.

3On 24 March 2022 a consignment originating from Iran declaring it contained a hairdressing chair with a weight of 351 kilograms was sent to a freight forwarding service at Tullamarine. You were named as the consignee, and you attended at the freight forwarder’s offices on 28 March 2022 where you identified yourself as the consignee, paid the consignment fee and collected the consignment. (consignment 1). This is uncharged conduct.

4On 1 September 2022 a second consignment originating from Iran sent to you arrived in Australia. You were advised that afternoon by a freight forwarding service at Tullamarine that you needed to engage a broker to clear the goods.

5On 2 September 2022 in a telephone conversation with an employee from the freight forwarding service you advised that you were still to contact a broker but would do so shortly.

6On 5 September 2022 Australian Border Force (ABF) officers examined the consignment (consignment 2) which was declared as 'Chair'. The consignment consisted of two plastic wrapped pallets containing four black barber chairs.

7The seats of the barber chairs contained a compressed yellow powder. The powder was presumptively tested and returned a positive result for methamphetamine. ABF officers seized the consignment and estimated that the gross weight of the methamphetamine was approximately 10 kilograms.

8Between 5 and 27 September 2022 you took a number of steps attempting to possess consignment 2.

9On 5 September 2022 you attended at a freight forwarding and brokering service at Tullamarine and identified yourself and paid import fees.

10On the 12th and again on 19th and 21st of September 2022 you contacted the freight and brokering service on multiple occasions seeking delivery of the 'chairs'.

11On 27 September 2022 you contacted the freight and brokering service and said that if you did not receive your barber chairs that week you would speak to your lawyer.

12On 18 October 2022 the freight and brokering service emailed the ABF and enquired whether consignment 2 was still being processed as their customer had been waiting over a month. You were copied into this email.

13Police executed a search warrant at your home address on 31 October 2022. They located numerous incriminating items including items involved in the preparation of drugs for sale. You were arrested and participated in a recorded conversation with police in which you admitted that there was about half a kilo of drugs in one of the chairs and that you used items located in your garage to cook methamphetamine in your garage. You said you sold the drugs for $60,000 and had sent the money back to Iran.

14Drug analysis found that there was 2,663 grams of pure methamphetamine secreted in the four barber chairs. The purity of the methamphetamine varied between 6 per cent and 40 per cent.

15You were interviewed by police. You told police that you had a friend in Iran who had sent you half a kilo of drugs. You said the drugs came in the chairs and you had to extract the substance from the surface of the fabric. You said your friend taught you how to cook drugs on WhatsApp. You said your friend arranged for you to sell the drugs to a man in Coburg for $60,000 which you did. You sent 40,000 to your friend in Iran and kept 20,000. These admissions concern consignment 1.

16In respect of consignment 2 you made full admissions in respect of your conduct. You told police that like consignment 1 you had to 'make and sell' the drugs.

17I turn now to the matters I am required to take into account in sentencing you.

18I begin with your plea of guilty.

19You pleaded guilty on 18 June 2024. This is not an early plea. There was a contested committal at which the informant was cross-examined and a trial date was set. However, it remains that you have pleaded guilty and have obviated the need for a trial and the cost and inconvenience associated with a trial. Ms Swiney who appeared on your behalf submitted that this was a matter that required negotiations which took some time before it resolved. She submitted that the present charge was proceeding in conjunction with other matters which ended up being excised from the current indictment. She submitted this was always a matter that was capable of resolution. She relied on your full and frank admissions from the outset to investigators as indicative of remorse, and also upon the fact that you have made an offer to assist authorities in this investigation. Your offer of assistance has not been acted upon, but Ms Swiney submitted the offer was genuine and was another indication of remorse on your part.

20Turning to your antecedents and character.

21You were born on 31 October 1983 in Iran. You are presently 41 years old.

22You came to Australia in 2013 on a bridging visa.

23You were assessed by Carla Lechner, clinical psychologist, on 22 August 2024 and a report dated 29 August 2024 was tendered at your plea.

24You told Ms Lechner that you went to school to the equivalent of Year 12 in Iran. You served just over two years of military service then went to university for two years where you studied mechanical engineering. You did not complete your degree. You grew up with your parents and siblings. Your father was a truck driver. You reported there was no domestic violence in the home but that your father drank alcohol and smoked opium. You report abuse by your teachers at school and told Ms Lechner on one occasion you were sexually assaulted by a teacher.

25You told Ms Lechner you were persecuted by the authorities in Iran for being an atheist and for posting about your views. You came to Australia from Jakarta on a boat. The journey was very frightening. You were on Christmas Island for two months and then in a refugee camp in Darwin where you were granted a visa. You first went to Brisbane and then came to Melbourne. You had a couple of friends but you told Ms Lechner you were very lonely. You got work as a house painter and then as a barber. You told Ms Lechner your life in Australia was good, but you had no family, had to learn English and found it very hard to adjust. You began using drugs in this context. You had previously been a drug user in Iran where you had used hashish, opium and heroin. In Australia you were using cannabis and opium. You have also used cocaine, GHB and heroin. You were drinking alcohol but stopped in 2020 because you had a stomach ulcer.

26You told Ms Lechner your offending occurred when you were with other drug taking friends and you were gambling and in bad shape financially. You said your friends persuaded you to get involved in drug importation and told you if you took a delivery, you would get $10,000 and drugs for your own use.

27You have been remanded in custody since 31 October 2022. You told Ms Lechner that you were finding your time in custody very difficult. Ms Swiney submitted that you are isolated with no visitors. You are currently being prescribed a low dose of an anti-depressant which you report is having very little impact.

28Ms Lechner gives the opinion that you are currently presenting with symptoms of complex PTSD, major depressive disorder and opiate use disorder in remission in a controlled environment. She recommends there be a review of the dosage of your medication. You are not receiving any treatment for your mental health difficulties nor your drug use. Ms Swiney submitted Ms Lechner’s conclusions about your mental health enlivened Verdins[1] limbs 5 and 6 and this was not disputed by the prosecution.

[1]        R v Verdins (2007) 16 VR 209 (“Verdins”)

29You have no prior criminal history.

30You are not an Australian citizen and are at risk of deportation back to Iran at the completion of your sentence.

31Turning to the nature and circumstances of your offending.

32You attempted to possess three and a half times the commercial quantity threshold for methamphetamine. You admitted that you had involved yourself for financial gain and this is an aggravating feature of your offending. This was the second consignment of drugs sent to you. Your admitted conduct in respect of consignment 1 is uncharged conduct and you do not fall to be sentence for this consignment however, I can use it to conclude that your conduct in respect of consignment 2 was not one-off. Indeed, you have admitted as much.

33In consideration of your role in the attempted importation you performed the following important tasks.

34First you agreed with an associate in Iran that you would accept the consignment of drugs, believing it would be 500 grams of methamphetamine in the barbers’ chairs.

35Secondly, you engaged a customs broker and completed the paperwork to facilitate the clearance of the consignment.

36Thirdly, you paid the consignment fees.

37The prosecution submitted that you played a critical onshore role in the drug enterprise, and by your own admission, you were expected to play a role in the preparation of the drugs for further distribution.

38Ms Swiney on your behalf submitted that the offending involves you using your own name and identifying documents, and your behaviour was naïve or foolhardy and made your detection a straightforward matter for law enforcement.

39In assessing the objective gravity of the drug importation and possession offences the following principles are relevant.[2]

[2]        R v Nguyen; R v Pham (2010) 205 A Crim R 106.

40First, the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to affect the importation.

41Secondly, it is the criminality involved in the importation which must be identified.  The fact that another person may be characterised as the 'mastermind' does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.

42Thirdly, 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.

43Fourthly, the act of attempted possession of a drug can be attended by a wide range of moral culpability so that the circumstances in which a person charged with the attempted possession of a drug and what the person intended to do with the drug is relevant to the assessment of the offender’s moral culpability.

44Applying these considerations, I accept the prosecution submission that you played a critical onshore role in the importation of a large amount of methamphetamine and that you did so for money, and that you understood that you were involving yourself in an operation involving a significant amount of methamphetamine. Your role also involved you preparing the drugs for sale in the community which is a further highly aggravating aspect of your conduct.

45The harmful impacts of illicit drugs in the community are well-understood. The objective gravity of your offending is high as is your moral culpability. It may be that you were foolish to have undertaken your activities using your own name and identifying materials, but this does not diminish the seriousness of your conduct.

46Turning now to the relevant sentencing considerations.

47General deterrence is the predominant sentencing consideration for all drug offences. The message must be sent by the sentence I impose that those who seek to profit from participation in the drug trade will be punished. The community must be protected from those who seek to profit from the supply and trade in illegal drugs.

48The sentence I impose must also make it clear to you that you must never behave in this way again.

49On behalf of the community, I denounce your conduct.

50You have pleaded guilty and are entitled to an appropriate mitigatory discount in recognition of your plea.

51You made full and frank admissions to investigators and made an offer to assist the investigation which I accept are indicative of remorse on your part.

52Prison is a very difficult place for you. You are isolated and your mental health conditions attract the application of Verdins limbs 5 and 6. That is I accept prison is a more difficult place for you than for a prisoner without your mental health conditions.

53You are at risk of deportation at the conclusion of your sentence. This would involve you returning to Iran a country from which you fled and sought refuge here in Australia. I take this into account in two ways. First, the burden of imprisonment will be greater for you than for someone who faces no risk of deportation; and secondly, you have lost the opportunity to settle here in Australia.  In your case, I accept the prospect of deportation back to Iran is of significant concern to you, and if it should occur would be significant ex-curial punishment.

54I am uncertain about your prospects of rehabilitation. You are a long-standing and as yet untreated drug user, and your mental health conditions remain also largely untreated. It is to be hoped that you get the treatment you need at some point in custody.

55I have had regard to the cases provided to me by the prosecution which have assisted me to understand the relevant sentencing principles and have served as examples of current sentencing practices.[3]

[3]        Ong v The King [2023] VSCA 116; Adam v R [2023] NSWCCA 62; Hon Wing Lau v The Queen [2021]

VSCA 162; Salazar v The Queen [2021] VSCA 125; O’Shaughnessy v R [2020] NSWCCA 124; Foley

v R [2019] VSCA 99; R v Boimah [2017] QCA 50.

56Taking into account all the matters I am required to I intend to sentence you as follows, you can remain seated in the circumstances, Mr Makar.

57On Charge 1 you are convicted and sentenced to 7 years' imprisonment.  I direct you serve a non-parole period of 4 years' imprisonment.

58You have served 815 days of pre-sentence detention not including today

59But for your plea of guilty I would have sentenced you to a sentence of nine years' imprisonment with a non-parole period of six years.

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