Director of Public Prosecutions v Mamatjan
[2024] VCC 1329
•27 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00787
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MURADIL MAMATJAN |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August 2024 | |
DATE OF SENTENCE: | 27 August 2024 | |
CASE MAY BE CITED AS: | DPP v Mamatjan | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1329 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of trafficking in drug of dependence (cocaine) – plea of guilty – relatively modest role in large enterprise - some application of R v Verdins – good prospects of rehabilitation – application of R v Mills – general deterrence significant
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic); Confiscation Act 1997 (Vic)
Cases Cited:R v Verdins (2007) 16 VR 240; Gregory (a pseudonym) v The Queen [2017] VSCA 151; Azzopardi v R (2011) 35 VR 43; Mills v R [1998] 4 VR 235; Dawid v DPP [2013] VSCA 64
Sentence: Four years imprisonment, non-parole period of two years and four months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Johnston | Office of Public Prosecutions |
| For the Accused | Mr S. Tovey | Fayman Lawyers |
HER HONOUR:
1Muradil Mamatjan, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely cocaine, in a quantity that was not less than a commercial quantity, contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The maximum penalty for this offence is 25 years' imprisonment.
Circumstances of Offending
2The circumstances of the offending are set out in a comprehensive Summary of Prosecution Opening dated 14 August 2024, tendered on the plea as Exhibit A.
3Before turning to the offending, it is important to first set out the background in order to place it in context. In 2022, a Joint Organised Crime Taskforce, comprising members of both State and Federal Law Enforcement Authorities, commenced an investigation into a drug-trafficking syndicate operating in Australia. The syndicate's activities included transporting significant quantities of illicit drugs between Melbourne and Sydney under the guise of a legitimate business that involved the sale and transport of poultry.
4Companies were set up using the identification of real people without their knowledge. Those companies were used to establish genuine businesses, bank accounts, vehicles and to lease storage units. One of these businesses was 'Dr Extinguishers and Sales Pty Ltd'. This business was registered using the details of a real person, Darren Ryder, who was registered as a Director and Secretary but who had no knowledge of, let alone involvement with, the business. A St George Bank account was opened in Ryder's name. One of the vehicles registered to the company was a refrigerated Mitsubishi Fuso Truck with the registration 1KK 2KQ.
5In May 2022, you successfully applied for a job as a truck driver that you found on Seek. This job involved you conducting multiple interstate trips between Melbourne and Sydney for the syndicate. To provide an apparently legitimate purpose for the travel, the syndicate would purchase poultry products using the company name 'BSC Poultry', from a genuine business called 'Nice n Fresh'.
6The syndicate set up accounts with 'Vincent Group Cold Storage' in Keysborough, 'Kennards Self Storage' in Brookvale, and 'Chill' in NSW. Your role was to transport the poultry products in the refrigerated Mitsubishi truck between these storage facilities. At no time did you deliver any product to a customer.
7Your communications with the syndicate were conducted through a moniker 'Ron' at BCS Poultry. Ron is a principal member of the syndicate in Australia. You directly communicated with Ron via WhatsApp and on a number of occasions you were ostensibly provided instructions in relation to the collection and delivery of chicken. It is believed that Ron, is also known as 'Lucky Sgro', and is in fact Michael Bosscher, a criminal lawyer from Brisbane. I note here that it is not alleged that you knew his real identity.
8The method by which you received instructions regarding the collection and delivery of drugs is not known, but you were being directed by others.
9On 31 May 2022, you received your first payment of $738.10 from the Darren Ryder St George Bank account. You received further payments between June and August mostly consistent with this amount being a salary, but sometimes in greater amounts.
10On 6 June 2022, as instructed by Ron, you collected the refrigerated Mitsubishi Fuso truck (1KK 2KQ) from the Burwood One shopping centre car park. The truck had been left there with the engine running and the keys in the ignition.
11Prior to you taking possession of the truck and without your knowledge, law enforcement agencies had installed tracking and listening devices in the truck. As a result, you had been surveilled in the vehicle from the time you collected the truck on 6 June 2022, until your eventual arrest on 24 August 2022.
12On 15 June 2022, as instructed by Ron, you collected two pallets of chicken wings from Nice n Fresh and delivered them to storage at Vincent Group. You were paid $2,241.98 and $738.10 from the Darren Ryder account.
Interstate Trips
13Between 26 June 2022 and 19 August 2022, you undertook four trips to New South Wales collecting and then delivering chickens to and from various locations as directed. This conduct does not comprise part of the offending for which you fall to be sentenced. Rather, it is relied upon by the prosecution to establish that by the time you engaged in the offending which is the subject of this charge, (that is your fifth interstate trip), you by then understood that the boxes also contained illicit drugs.
14I will briefly set out some of the circumstances of those interstate trips.
Interstate Trip 1
15On 26 June 2022, in response to a message from Ron asking if you could work the following few days, you were instructed to pick up something from Vincent Group and deliver to Chill Sydney. You left home in the early hours of 28 June and after purchasing fuel, travelled to Tatterson Park in Keysborough where you exited the truck at 6:13 am and collected unidentified items that had been left in the park before driving home.
16The following day you travelled to Sydney and whilst under surveillance, you were later seen stopping in Mawson Drive, Cartwright near a park at 7:36 pm. You were observed to access the rear storage area of the truck, remove unidentified items and carry them into the parkland. You made two trips into the park carrying items before leaving at 8:13 pm. It is alleged that these were dead drops. A few minutes after you left, an unknown male in a van attended and emerged from the park carrying a number of boxes. The next morning you delivered the chicken to Chill in Brookvale before returning home.
17You were paid $738.10 and $234.95 on 28 June and then $738.10 and $1,201.12 on 5 July 2022.
Interstate Trip 2
18On 4 July you collected a pallet of chicken wings from Nice n Fresh. The next morning you travelled from your home to parkland in Noble Park. You exited the cabin and collected unidentified items that had been left in the park before driving away. During the trip, you were recorded speaking on the listening device. After returning home, you then departed for Sydney.
19The following morning at 4:37 am you left your NSW hotel and attended at Killara Reserve where you remained for an hour and 17 minutes, in what is alleged to have been a dead drop. The listening device in the truck recorded the metal clank of the rear doors and clinking and thudding sounds.
20You later attended Chill, where they would not take the pallet. You attended the storage unit at Kennards Brookvale but the freezers were full, so you returned to Melbourne taking the chickens to Vincent Group the next morning. You were paid $738 and $922 on 12 July and again $738 and $768 on 19 July from the same bank account.
Interstate Trip 3
21After receiving directions from Ron on 24 July via WhatsApp, you attempted to collect chickens from Vincent Group the following day, but the business was closed. On 26 July you left home at 5:15 am and travelled to parkland on Matilda Drive, Keysborough. You entered the park and retrieved five boxes from the reeds near the creek, and loaded them into the rear of the truck. Later that morning you collected chickens from Vincent Cold Storage and later left for Sydney.
22At 4:02 am on 27 July 2022, you left your hotel in NSW and drove to Haigh Park, Moorebank and remained there for 46 minutes. The listening device recorded the sound of rear doors being accessed and it is the prosecution case that you conducted a dead drop of the unidentified items at this location. You were paid $738.10 and $290.29 on 26 July.
23You then attended the Kennards Self Storage in Brookvale and entered the storage unit. You sent a message to Ron saying you thought the chickens were putrid because of the smell. Ron told you to take them back to Melbourne to the tip. You swapped the chicken in the truck for that in the storage unit and returned to Melbourne where you disposed of the chickens the following day at the tip.
24Further payments were made on 2 and 9 August of $738.10 with an additional amount of $1,010.77.
Interstate Trip 4
25A fourth trip took place following communications from Ron via WhatsApp. You collected chickens from Nice n Fresh on 17 August and returned home. You were paid $738.10 and $1,038.37 the same day.
26
The next morning, another male, identified later as Cong Nguyen, was observed attending Tatterson Park at 5:17 am and unloading two cardboard boxes from a van, which he carried into the park and placed in the shrubbery near a creek. A total of 10 boxes were left. This male left in the van at 5:29 and was followed by investigators. Meanwhile surveillance operatives located and photographed the
10 boxes which were identical to Nice n Fresh boxes. They left the boxes in situ.
27At 5:54 am, you arrived at the park and using a torch, located the boxes which allegedly contained an unknown quantity of illicit drugs. You collected the boxes over 10 trips, and placed them in the rear of the truck. Later that morning, you travelled to Sydney. On 19 August, you left your hotel at 4:15 am, and travelled to Hood Street, where you exited the vehicle and took a photo of the lock on the rear doors. You then drove to Botany Place, where you parked and walked away. Meanwhile at 5:20 am an unknown person arrived in a van and walked to the rear of the truck before returning to the van. It is alleged that you left the rear doors to the truck unlocked to enable collection of what was said to be an unknown quantity of illicit drugs.
28You returned to the van at 5:42 am, messaged Ron to say you were on the way to 'Jessie ps chooks' before attending Kennards Storage in Brookvale.
Interstate Trip 5 (Charge 1)
29Turning now to the charged offending. On Monday 22 August 2022, you received a WhatsApp message from Ron asking if you could work Tuesday to Thursday, to which you said you were available. Ron provided further instructions for the job involving collection and delivery of chickens.
30In line with those instructions, you attended Nice N Fresh on Tuesday 23 August 2022 and collected one pallet of chicken wings. You then drove the truck containing the chicken to your home address where it remained until the following morning. You were subsequently paid from the bank account in the name of Darren Ryder the same day, again being $738.10 and $1,159.25.
31The next morning, surveillance operatives observed you leaving your home address at 4.23 am in the truck. At 4.52 am, you parked the truck opposite 147 Osborne Avenue, Clayton South, adjacent to The Grange Reserve. You exited the truck, unlocked the rear door, and then got back into the driver's seat. A few minutes later you got out of the truck and walked away.
32At 5:05 am, while you were absent, a white Hyundai iLoad van reversed up to the rear of the truck. A male got out, opened the rear doors of the truck and was seen to transfer at least eight boxes from the van into the truck. It is said by the prosecution that these boxes contained a quantity of cocaine. The male then returned to the van and drove away at 5.07 am.
33By 5.16 am, you had returned to the truck and departed. You made multiple stops, including in the vicinity of Church Road, Keysborough, Petunia Drive in Keysborough, and to a service station in Dandenong before you returned to your parent's house.
34During one of your stops, you were seen entering the rear of the truck where you rearranged some of the boxes. You placed 12 boxes that were recently loaded onto the truck into an empty pallet behind the pallet containing the chicken. You proceeded to stack empty boxes on top of them to the height of the chicken to give the appearance that there were two pallets of chicken in the truck.
35Just before 7 am, you left home and commenced the journey to Sydney. It was during this trip that you were intercepted by investigators at 8:12 am travelling north bound on the Hume Freeway at Wallan.
36You were directed by Federal Police to park in the car park of the BP service station which was 2 kilometres ahead. Once parked, police informed you that the truck registration had expired. At this stage, you indicated that it was a company truck for a poultry business. Police requested permission to search the truck, to which you consented and unlocked the rear with your keys.
37Upon inspection of the truck, officers located two pallets – the first being a shrink‑wrapped pallet contained cardboard boxes of frozen chicken, and the second being another pallet containing the same distinctive cardboard boxes, which were notably empty. Underneath the empty boxes were a further 12 distinctive boxes each containing 10 plastic wrapped rectangular blocks of compressed white powder with a Mexican Peso on top of each.
38Upon questioning, you indicated to the officers that you did not know what was in the truck and that you thought it was chicken.
39Pausing here, it is the prosecution case that due to the previous interstate trips that I have detailed above, that at the time of this trip, being 24 August 2022, you believed that the boxes you were transporting included not only chicken, but an amount of illicit drug (or drugs). The prosecution submits that due to the number of boxes, that you knew or believed that the quantity of drugs exceeded 250 grams. But it is not alleged that you knew the total quantity of the drugs within the boxes, nor the type of drug. It is not alleged that you were to share in the profit generated by the sale of the drugs.
Investigation
40Australian Federal Police Crime Scene Investigators arrived at the BP service station to conduct an examination of the truck and collect evidence. Presumptive testing of the blocks of the compressed white powder returned a positive result for Cocaine. Fingerprinting and DNA examination of the vehicle was also conducted, which was later submitted for further analysis.
41The entire seizure of the Cocaine was later examined and analysed. The total minimum weight of the substance located in the truck was 119.2 kilograms with a minimum purity of 79.2 per cent cocaine. The total weight of pure cocaine contained in the seizure was 94.4 kilograms, which is 377.6 times the minimum commercial quantity. The prosecution submit that the value of the cocaine ranged from approximately $19m to $121m, depending on the form and how the cocaine would be sold.
42You were immediately arrested and transported to the Wallan police station for questioning. You participated in a taped Record of Interview later that day, and stated the following:
(a)That you did not know how the boxes containing the drugs got in the truck;
(b)That you did not use the truck for personal errands, and used it only for work;
(c)That you were not aware of anyone else having access to the truck, that you had the keys and had not given them to anyone else;
(d)That you had the keys to the rear lock, and that you locked it the night before;
(e)That the night before, there was one full pallet of chicken in the back and one empty pallet;
(f)That the day before, you awoke at around 5-5.30 am, left at 7 am and drove directly to where you were eventually intercepted;
(g)That you did not stop, open the truck nor leave the truck unattended that morning;
(h)You said that you did not go to Osborne Avenue in Clayton South that morning and that you were not there. I note here that this is in direct contrast to the observations of you that morning, and also to the data extracted from your mobile phone and the vehicles' tracking device;
(i)You also confirmed that the mobile phone was yours, and that you have the password and no-one else uses it.
43You were subsequently charged in relation to this offending later on 24 August 2022. You were remanded in custody until 8 September when you were released on bail. You remained on bail until the plea hearing on 15 August 2024 when you were remanded.
Procedural History
44You ran a contested committal hearing in May 2023 where police witnesses were cross-examined. You intended to contest the charges at trial, which was set down for 28 May this year. At that stage, you were charged with trafficking a large commercial quantity of a drug of dependence.
45On 23 May 2024 you made an application to this court for a Sentence Indication, which was given the next day. You then indicated your intention to plead guilty and you were arraigned on 28 May 2024.
46The plea hearing took place on 15 August 2024.
Prior Criminal History
47You have admitted a prior criminal driving matter that is not relevant to this offending.
Personal circumstances
48You are now 25 years of age. You were born in Urumqi, a city that sits within the Uyghur autonomous region in China. You are the eldest of three children. You have two younger sisters aged 12 and 14. Your family migrated to Australia in 2009 when you were around 10 years old. Your family is a very traditional, conservative and religious one. You experienced a troubling experience relating to your family's religion when you returned to China with your pregnant mother in your teens, and you were both detained at the border. None of your family have any prior criminal history.
49Upon arriving into Australia, your family set down roots in the Dandenong area where you and your siblings attended primary school. Although you had very limited English, you were able to adapt to your schooling. Your mother and father have both traditionally worked in hospitality. They operate a family restaurant offering Uyghur cuisine. Previously, they operated a similar restaurant in Glen Waverley for many years.
50Growing up, you mixed your schooling with working in the family business. You completed Year 11, although some of your referees speak of you completing Year 12. You are said to have failed Year 12 at Dandenong High School. You began working six or seven days a week in the family restaurant, but you had always helped out in this business.
51You began taking private flight training courses funded by your father. Over a two year period, you obtained a student pilot licence and you were waiting to start the next part of your course, which was a Diploma in Aviation, being a pathway to achieving a private pilot's licence. You were enrolled to take this course at Box Hill TAFE. However, the course did not eventuate due to interruptions surrounding COVID-19 and a class action being brought against the school by students.
52In the lead up to the offending, in addition to assisting your parents in opening their restaurant, you worked as a security guard through Security Hub, being a partner company who provide security services to large events.
53You have been in a relationship with your partner for seven years. The relationship is described as positive and supportive. You are extremely close to your partner and her very supportive family, with whom you have been residing for a number of years.
54You have no prior relevant criminal history and a modest driving history. Your offending behaviour is said to sit uncomfortably against the background and values of your family. Your counsel submits that it is highly out of character and unlikely to be repeated.
55This is reflected in the many character references tendered on your behalf. Family, friends and those who have come to know you within the community speak of what a kind, decent, trustworthy and hardworking person you are. You are described as extremely family orientated, having spent a considerable amount of time helping your parents in the family business. This has included managing daily operations of the restaurant, including staff management, customer service and managing the budget and other financial aspects of the business. Your parents and your friends refer to your honest and generous nature. You have made contributions to your local community and you are an active member within the ICMG community centre. You have assisted in the Uyghur Association helping refugees and raising funds for the association.
56A number of your referees also note that you have expressed your genuine remorse for this offending. I accept that your offending is out of character and I accept that you are much loved by many.
57In your account of the offending to psychologist Gina Cidoni, you advised that having sought employment via 'Seek', that you believed you were hired to transport poultry and tasked with picking up and delivering chicken pallets. You said you were unaware of the illicit cargo hidden beneath the boxes of chicken until the day of your arrest. You said you were 'shocked by the discovery and subsequent charges' stating that your involvement was 'purely based on manipulation' by those who hired you.[1] I will say more about this in a moment.
[1] Report of Gina Cidoni dated 9 August 2024 (‘Cidoni report’) [16]
Mental Health
58I have had regard to the report of Ms Cidoni, as well as the evidence she gave in court during your plea hearing. She has diagnosed you with Major Depressive Disorder and Adjustment Disorder with Anxiety.[2] She notes that while you had dealt with your mental health issues prior to your arrest, since the offending your psychological state has degenerated significantly whereby you have experienced frequent panic attacks, bouts of anxiety, sleep disturbances and avoidance behaviour that negatively impacts your quality of life. Post arrest you were diagnosed with Panic Disorder. Ms Cidoni notes that therapy has led to some improvements in this area.[3] You have been seeing a psychologist, Dr Katrina Frost to manage your Panic Disorder.[4]
[2] Ibid [63]
[3] Ibid [39]
[4] Report of Dr Katrina Frost dated 18 March 2024 (‘Frost report’) 1
59Ms Cidoni considers that you have borderline intellectual functioning including:
(i)cognitive deficits in verbal comprehension and perceptual reasoning such that they impact upon your daily life, including your ability to problem solve;
(ii)an impaired ability to interpret social cues and navigate complex interactions;
(iii)hindrance of your ability to undertake logical reasoning and decision making in dealing with challenges.
60According to Ms Cidoni, your overall borderline intellectual functioning places you in a vulnerable position where, she says, you are significantly impaired and easily influenced.[5] She considers that the primary factors contributing to your offending are closely related to your cognitive deficits. Your limited intellectual capacity likely made you more susceptible to manipulation and less capable of recognising the illegal nature of the activities in which you were involved. Your cognitive limitations, she says, may have impaired your ability to fully understand the consequences of your actions and critically assess the legitimacy of the work you were undertaking.[6]
[5] Cidoni Report [62]
[6] Ibid [64]
61Ms Cidoni notes at paragraph 65:
'Additionally, his difficulties in problem-solving and logical reasoning would have hindered his ability to navigate complex situations or detect inconsistencies in the information provided by those who employed him. This gullibility, combined with his impaired ability to make sound decisions, likely made him an easy target for exploitation, ultimately leading to his involvement in criminal activity. Furthermore, his social and emotional vulnerabilities, including his challenges with social interactions and anxiety, may have made him more inclined to follow directions without questioning them, further contributing to his involvement in the offence.
62This evidence by Ms Cidoni is said to provide significant insight as to how it was that you, a quiet young man with no criminal history, came to be involved in this enterprise.
63Your counsel submits that this demonstrates your limited ability to critically analyse information and your consequent gullibility and vulnerability to exploitation. That it explains how you came to continue to follow the instructions that you had been given, notwithstanding the nature of what you had been directed to do in the lead up to your arrest.
64While not strictly falling into considerations as set out in R v Verdins’,[7] these matters are nonetheless said to be relevant to the overall assessment of the gravity of the offending in which you engaged.
[7] (2007) 16 VR 240 (‘Verdins’)
65Ms Cidoni was asked to elaborate on her findings during the plea as it was the subject of some contention. Essentially, the prosecution submits that there is an insufficient evidentiary basis on which to find that your limited intellectual capacity, suggestibility or imperfect capacity for critical analysis contributed in any substantive way to the offending conduct; and, Mr Johnston submits, it does not reduce your culpability.
66The prosecutor Mr Johnston pointed out, both in cross-examination and submissions, that you attended school and completed Year 11. Further, that you obtained a level of certification in aviation studies to which you plan to return. It is submitted that you had the intellectual capacity to receive instructions, communicate using electronic platforms, and navigate to various locations in New South Wales and Victoria. To this, Ms Cidoni opines that this was part of you carrying on and doing as you were told, following straightforward instructions.
67The prosecution point out that you had the presence of mind to lie to police about attending Osborne Avenue, Clayton South on the morning of 24 August 2022. When cross examined on this aspect. Ms Cidoni's evidence was that this was consistent with you telling lies to avoid a negative outcome, much like when a child lies.
68Whilst the prosecution accepts that you did not form a belief that the boxes contained a quantity of illicit drugs until the final trip, your assertion to Ms Cidoni that you were 'shocked by the discovery' and that your involvement was 'purely based on manipulation' by those who hired you, must be assessed in circumstances where you delivered or collected boxes on several occasions to or from various parklands in the early morning or evening.
69On this note, I must say your account of being shocked and in effect, being an unknowing pawn in these activities, was likely the case in relation to the earlier trips. But by the time you were intercepted, to describe that you were 'shocked' by the discovery, suggests a desire to minimise your involvement. You have now accepted responsibility for this offending, and whilst others may have capitalised on your naivety, I find it difficult to accept that by the time you were apprehended by investigators, that you were entirely ignorant and unknowing that you were engaging in some form of activity that was not legitimate. By your plea, you accept as much.
70Having heard evidence from Ms Cidoni, the prosecution maintained its position that there is an insufficient evidentiary basis upon which I could make a finding that your stated cognitive deficits contributed to involvement in this offending. This is relevant when it comes to assessing the objective gravity of your offending.
71Furthermore, the prosecutor points out that your ability to interact and receive instructions, indicates a capacity to have discretion and communicate in a compartmentalised way. He submits that this does not sit with somebody being diagnosed with a borderline intellect.
72Other features of your conduct that are said to speak to this include that you lied to your friends in your communications about where you were going and what you were doing, saying you were working in security. I was invited by the prosecution to watch the record of interview so as to illustrate how, after your arrest, you did have the presence of mind and capacity to lie repeatedly about attending Clayton South that morning.
73I have considered the evidence of Ms Cidoni on this point and the submissions. I accept that according to the psychometric testing performed, you have been assessed as having borderline intellectual functioning according to the General Ability Index, bearing in mind the limitations of this test as opposed to a Full Scale IQ test, which could not be calculated having regard to the fact that you did not perform all of the sub-tests.
74I have difficulty with the submission that you were 'significantly impaired' as a result of your intellectual functioning, given the way in which you conducted yourself and were able to communicate and follow directions. I also take into account the fact that you had been able to successfully assist your family in the family business, including in relation to financial activities. However, I accept that as a result of your intellectual challenges, you may be more susceptible to being easily influenced. That you may struggle with logical reasoning and decision making. Initially this may have resulted in you being less equipped to recognise the illegal nature of what you were engaged in. However, it did not make you entirely oblivious. At some point, it became apparent to you that the work you were undertaking was not legitimate or legal. Perhaps you were more willing to turn a blind eye or perhaps you were reluctant to recognise the consequences of your actions. But your intellectual functioning was not an impediment to you following directions nor to you making decisions for yourself.
75Whilst this is relevant to assessing your culpability, as at the day of your arrest, you were clearly not blissfully ignorant as to what it was that you were involved in. This is reflected by the fact that you lied to police. You hoped you could avoid being implicated by further flat denials, even in the face of police showing you evidence as to what your phone revealed regarding your movements on the days leading up to your arrest.
76Having said that, I have viewed the record of interview and I do not consider that the answers you gave to police in which you told lies, or your denials of the offending or even certain activities, could be described in any way as sophisticated. Rather, your answers are consistent with someone who was understanding that he had been caught, and possibly seeing no alternative but to deny matters that were put to him. This is not inconsistent with the way in which a person with borderline intellectual functioning might be expected to behave.
77I take your intellectual functioning into account, but with some reservations as to how far it goes in explaining your behaviour. I do so also bearing in mind that you have been capable of completing studies to Year 11 and undertaking further courses.
78Ms Cidoni indicates that imprisonment is likely to have a negative impact on your mental health considering your various diagnoses and borderline intellectual functioning. She states that there would appear to be a significant risk that prison could lead to a significant increase in your depressive symptoms, increase the risk of suicidal ideation or self-harming behaviours, and trigger frequent and severe anxiety episodes.
79Ms Cidoni notes the harsh realities of prison life could exacerbate your depressive symptoms, deepening your feelings of sadness, hopelessness and lack of interest in daily activities. The abrupt shift to a highly controlled and often confrontational setting could trigger frequent and severe anxiety episodes, including panic attacks.[8]
[8] Cidoni Report [70]
80In light of that, your counsel submits that limbs 5 and 6 of Verdins are enlivened in that your psychological and cognitive profile are such that:
(a) a sentence of imprisonment will weigh more heavily on you than it would a person in normal health;
(b) there is a real or serious risk that imprisonment will have a significant adverse effect on your mental health, in particular, your Major Depressive Disorder, anxiety and panic disorder.
81As to the application of Verdins here, the prosecution submits they should be afforded little weight given the evidence indicates mental health manifestations of moderate severity.
82I do accept that limbs 5 and 6 are enlivened and I give it some weight, although it is not an overwhelming consideration.
Nature and Gravity of Offending
83The offence of trafficking in a commercial quantity of a drug of dependence is an inherently serious offence, which is reflected in both the fact that Parliament has seen fit to mandate that it requires a term of imprisonment, and in the applicable maximum penalty.
84When assessing the objective gravity of the offending there are a number of factors to which I must have regard, including the quantity of the drug involved, your role, the duration of the trafficking and the motivation for your involvement.[9]
[9] Gregory (a pseudonym) v The Queen [2017] VSCA 151
85The quantity of drugs here was very substantial; over 119 kilograms with a purity of 79.2 per cent cocaine. As I said, it equates to 94.4 kilograms of pure cocaine, being over 377 times the applicable commercial quantity.
86The Crown accepted a plea to trafficking in a commercial quantity, on the basis that the prosecution concedes that while you knew or believed the quantity of drugs in which you trafficked exceeded 250 grams, you did not know the actual quantity. You therefore do not fall to be sentenced on the basis that you had any awareness that there was 119 kilograms of cocaine in the boxes, or even that you were aware that it was a large commercial quantity. Indeed, parties agree that you are to be sentenced on the basis that you were aware it was a commercial quantity.
87The potential value of the drugs was enormous. Had they been sold in quantities of one gram in the form in which they were seized, the value could have been just under $36m up to $59m.[10] More if they had been sold at the median purity.
[10] Approximately $35,760,000 to $59,600,000 if sold in one gram amounts if sold in the form seized (79.2% purity); approximately $72,615,300 to $121,025,500 if sold in one gram amounts at the median seized purity of 39% for police seizures of cocaine in 2020/2021; approximately $19,072,000 to $23,840,000 if sold in 1 kilogram amounts in the form in which it as seized.
88This was clearly a well organised, sophisticated syndicate in which you played a confined role. You were tasked to collect, transport and deliver quantities of drugs to specified locations, or in this case a specified location. You played no part in determining the locations for collection or delivery and you were not involved in sourcing or packaging the drugs. Rather, you followed the directions of others. The prosecution submits, and I accept, that you were willing to be a paid functionary of the syndicate, albeit an expendable one and that there was some degree of trust reposed in you to transport such a significant quantity.
89Beyond that, you were not a trusted insider, and you were really hired to move the drugs between the two locations as directed. Accordingly, I agree that your role could properly be assessed as at least moderate.
90The prosecution do not allege that you had an appreciation of the true size and scope of the syndicate but you knew it involved operations in both Victoria and New South Wales. You must have appreciated that there was some degree of organisation having regard to the directions you received, and the use of the truck provided by the syndicate. Further, by the time you conducted the trip which is the subject of the charge here, you must have known that BCS Poultry was a sophisticated cover. The nature of the earlier pickups were such as to arouse suspicion; it was not until the final trip that you came to form the belief that the boxes likely contained a drug. You also had an appreciation by then that your involvement was not confined to an isolated instance. I sentence you on this basis.
91I accept that you were kept at a considerable distance from those running the operation. They went to significant lengths to shield themselves from detection, through an elaborate network of fictitious companies and identities. The syndicate was certainly sophisticated, but your offending was not. It is not said that you had any awareness of the true identity of those with whom you were in direct contact. In contrast to this, you used your real name, phone number and driver's licence. The risk lay largely with you.
92You were paid for your involvement, receiving a regular wage between 31 May and 23 August 2022. The total amount paid to you was $17,827. Considering the considerable risk that you were taking driving the truck containing such a large quantity of drug on this occasion, the wage you received was moderate and not commensurate with the risk of detection.
Plea of Guilty
93I take into account your plea of guilty. It was not an early plea. You entered a plea of guilty following a Sentence Indication Hearing, which took place a couple of days before your matter was listed for trial. Despite the lateness of your plea, it is nonetheless a valuable plea. Moreover, the plea of guilty needs to be assessed in light of the change in the prosecution position with respect to the appropriateness of the charge to be laid against you.
94In terms of the timing, your counsel submits that given the nature and complexity of the case, it should not be held against you that the resolution was reached once both parties had truly engaged with the large amount of material.
95In any event, I accept that there is a strong utilitarian benefit to the plea of guilty. You have saved the court and the community a significant amount of time and expense associated with the running of a trial. You have also facilitated the course of justice. Your plea of guilty is also some evidence of your remorse. More particularly, you have expressed your remorse to the character referees who have provided written letters in support of you.
Delay
96It is submitted that you have been held in uncertain suspense with regard to this matter for close to two years. This included a period in which you were in custody for the first time, which was a difficult and confronting experience for a person of your age and life experience.
97I take into account that no doubt these proceedings have caused you some stress and anxiety. Whilst you have been on bail, you have continued to conduct yourself as a contributing member of society, working on your own rehabilitation, and you have not been involved in any further trouble. This is relevant when it comes to assessing your prospects of rehabilitation.
Youth
98I take into account that you were 23 at the time of the offending.
99Now at the age of 25, you are still relatively young. Accordingly, the principles enunciated in Mills v R[11] have some application here. Your rehabilitation assumes primacy in the sentencing process. The community has a very strong interest in the rehabilitation of all offenders but particularly youthful offenders. The potential for rehabilitation exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. [12]
[11] [1998] 4 VR 235
[12] Azzopardi v R (2011) 35 VR 43
100As was discussed in Azzopardi v R[13], courts are also cognisant that the effect of incarceration in an adult prison on a young offender would more likely impair rather than improve the offender's prospects of successful rehabilitation, given potential exposure to corrupting influences.
[13] Ibid
Prospects of rehabilitation
101I accept that you are remorseful, as you have expressed to family and friends.
102Ms Cidoni considers your risk of re-offending is low. Your counsel submits that having regard to your age, personal background, lack of relevant criminal history and subsequent matters, your compliance with bail for over two years, that your prospects for rehabilitation are excellent. Relevant to this assessment is said to be the circumstances of the offending.
103You have no issue with alcohol or drugs and while you are said to be something of an unsophisticated or concrete thinker, you do not have any significant mental health issues, which all bode well moving forward.
104Your counsel submits that your risk of re-offending is almost non-existent.
105I take into account the fact that you have accepted responsibility for your behaviour, that you have recognised the wrongfulness of your conduct, expressed your remorse and that you have continued to work since your arrest. I take into account that you have extensive supports. I accept that you have excellent prospects of rehabilitation.
Relevant sentencing purposes
106The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence. These include the seriousness of the offending, your culpability, the maximum penalty and your personal circumstances.
107The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society.
General and specific deterrence
108General deterrence is an important sentencing consideration in sentencing you for this offending. Those who might be inclined to engage in the drug trade, and traffick in a commercial quantity of drugs must understand that such serious criminal offending will attract significant punishment. As Kaye AJA said in Dawid v DPP[14] at [35]:
It is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived from the trafficking of illicit drugs.
[14] [2013] VSCA 64
109Specific deterrence has less of a role to play here but is not entirely irrelevant. Just punishment and denunciation must also be given primary consideration.
Current Sentencing Practices
110I have been referred to a number of cases by each party in order to ascertain current sentencing practices. Those cases are of varying degrees of seriousness. As the prosecution points out, there are few cases in Victoria, if any, involving such a significant quantity of drugs, but relatively modest involvement in a broader endeavour. I have had regard to the matters identified and also to current sentencing practices more broadly. They are but one of the matters that I must have regard to, but not the controlling matter.
Submissions on sentence
111The principles of parsimony dictates that I must impose a sentence that is no more severe than is appropriate in all of the circumstances. Both parties agree that I must impose a custodial sentence. This necessarily involves the imposition of a head sentence with a non-parole period. Your counsel submits that there is significant scope to impose a sentence that would allow you the opportunity to be released on parole in a way that would promote your rehabilitation in the community.
Sentence
112Taking all of the matters into account including the objective seriousness of the offending, your plea of guilty, your lack of relevant prior criminal history, your prospects of rehabilitation, your personal circumstances including your extensive family supports, balanced with each of the sentencing principles and objectives to which I must have regard, I have determined to sentence you as follows. Could you please stand, Mr Mamatjan.
113On Charge 1, trafficking in a commercial quantity of a drug of dependence, you are convicted and sentenced to four years' imprisonment.
114I fix a non-parole period of two years and four months imprisonment.
Pre-sentence Detention
115I declare 28 days pre-sentence detention to be reckoned as time served.
s6AAA
116Although this is a somewhat artificial exercise given the way the prosecution would have proceeded with this matter at trial, I indicate pursuant to s6AAA of the Sentencing Act 1991, that had you proceeded to trial and been found guilty of this charge, I would have imposed a total effective sentence of six years imprisonment with non-parole period of three years and nine months.
Ancillary orders
117Pursuant to section 78 of the Confiscation Act 1997, I make the disposal order in relation to the items seized. I also make the order for forfeiture in the terms sought, pursuant to s 33(1) of the same Act.
118You can have a seat, Mr Mamatjan.
119Counsel, are there any matters that I have overlooked or that require correction?
120MR JOHNSTON: Not from my perspective, no.
121HER HONOUR: Thank you.
122MR TOVEY: No, Your Honour.
123HER HONOUR: Yes, all right, thank you. I thank counsel for your assistance in these proceedings. If you could now take Mr Mamatjan back into custody, thank you.
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