Director of Public Prosecutions v Masange

[2016] VCC 739

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01958

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIZA MASANGE

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 May 2016
CASE MAY BE CITED AS:	DPP v Masange
MEDIUM NEUTRAL CITATION:	[2016] VCC 739

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Loh
For the Accused	Mr D. Boden

HIS HONOUR:

1Kiza Masange, you are to be sentenced for one charge of importing a commercial quantity of a border-controlled drug, one charge of dealing with money of less than $100,000 suspected of being  proceeds of crime, and one charge of making false statements in relation to an Australian travel document.  The applicable sentences are life imprisonment for importing a commercial quantity of a drug, two years' imprisonment for dealing with money being proceeds of crime, and ten years' imprisonment for the false document charge.  You are also to be sentenced for the summary offence of breaching a condition of bail.  The maximum sentence is three months' imprisonment.

2You pleaded guilty before this court on 12 April.  When interviewed by police on 2 May 2014  and on 6 February 2015, you answered some questions but also exercised your right to silence.  The matter was listed for a contested committal in March 2015 but proceeded by hand-up brief.  You entered a plea of not-guilty.  It was first listed for trial in the County Court in November of that year, but did not proceed.  Negotiations in the latter part of 2015 and following led to resolution and,  as stated, your pleas of guilty in April of this year.

3You receive the benefit of your plea of guilty and the level of cooperation that short history of the proceedings shows.  Your plea of guilty states a willingness to facilitate the interests of justice.  It has avoided the cost and inconvenience of a trial of some length.  I find that you are remorseful.

4At your plea hearing before me on 27 April, Ms Ellis for the Crown tendered a written prosecution opening.  Mr Alexander for you tendered the psychological report of Edwin Kleynhans, dated 26 April 2016, and a large number of letters of character reference and other material related to charitable donation, your mother's health, and your situation and rehabilitation in prison.  This includes that you have, until recently, performed the role of prison mentor in the youth unit Penhyn at Port Phillip Prison.

5Mr Alexander also tendered your own letter to the court, and called your sister,  Mado Masange and Sido Ndaya and Albert Nuyunga, both active members of the Melbourne Congolese community, to give evidence on your behalf. 

6Both Ms Ellis and Mr Alexander provided and filed written submissions on sentence.

7The circumstances of your offending are comprehensively described in the tendered prosecution opening, which is Exhibit A.  My own summary may be relatively short.

8As to Charge 1 on the indictment, between December 2013 and May 2014  you were involved in organised importation of mainly the drug methamphetamine; but also,  as to one importation, cocaine.  There were ten importations, nine of methamphetamine.  They were postal consignments of various products, for example, books, handbags, diabetic food, shoes, and something described as a decorative aquarium.  The drug was concealed with or within such apparently innocent imported items.  Quantities ranged from 53 to 514 grams of pure methamphetamine.  Three consignments arrived in late April, addressed to the same fictitious name, McManara, and totalled approximately 1,265 grams.  The overall total imported was 2,702.1 grams.  Packages originated from such places as South Africa, India, China and Tanzania.  All were discovered and seized by the authorities.  Addresses or postal boxes of named recipients were in different parts of the western suburbs of Melbourne.  In late May, a package containing approximately 20 grams of pure cocaine was posted to the name McNanara, in Deer Park.  The package came from Ecuador.

9The commercial quantity threshold for methamphetamine is 750 grams.  The marketable quantity threshold for cocaine is 2 grams.  The Crown opening states a wholesale value for the methamphetamine of over $500,000. 

10Search of your home on 2 May 2014  and other investigation connected you to important aspects of the importations.  This included travel and consignment documents, postal boxes, the named recipient "McManara", information within mobile phones and other evidence (such as possession of electronic tracking numbers)  of involvement in actual consignments. 

11Charge 2 is dealing with money suspected of being proceeds of crime.  Between October 2013 and May 2014, you conducted overseas money transfers or transactions related to importation of the drug.  Amounts ranged from A$1,500, to A$24,000.  Monies were transferred to China and Nigeria.  Australian monies were converted into European, British and US currency.  You used a false licence and a false travel document in making these transactions.  In addition, police search of your home on 2 May 2014 revealed two sums of cash,  about $10,000 and about $12,000AUD.  The total sum of monies dealt with in these ways is $99,880.83.  As I have earlier stated, the maximum sentence for dealing with monies being proceeds of crime up to $100,000 is two years' imprisonment.

12Charge 3 is the offence of making false statements in respect of an Australian travel document.  On 2 May 2014 you were arrested, charged and granted bail.  You were released on that bail on 2 July.  On 28 January 2015, you applied for an Australian passport.  The application was false and relied upon false documents in a number of respects, including the following.  The application itself contained your own photograph, but was in the name of one Joseph Bolay.  Supporting the application was an Australian Citizen Certificate in Bolay's name and a Victorian Proof of Age document in his name, which document contained another photograph of you.  False application for that had been made on 20 December 2014.  The Australian Citizenship Certificate in the name of Bolay is a legitimate document.  He is a real person. 

13A man identifying himself as Tamba was your guarantor in respect of the passport application on 28 January.  He relied upon a false passport in that name.  I was told that the Australian Government electronic detection system revealed the falsehoods.  You were arrested on 6 February 2015. 

14A man named Freeman, (who likely posed as Tamba  and who seems also to have supported as referee the false application for the Bolay Proof of Age document) has been charged in the Magistrates' Court.

15The summary offence before me is your breach of the bail granted on
2 May 2014, which was conditioned that you do not apply for a passport or travel document. 

16At the plea hearing, Ms Ellis put the Crown position that you headed what was described as a Melbourne Congolese drug syndicate, perhaps or likely part of a larger, more-powerful Nigerian syndicate.  I am not satisfied beyond reasonable doubt that you had what could be termed such a specific role.  However, your role, I find, had high responsibility  and was important to the drug importations before me.  You were closely connected in a number of ways to those importation  and made substantial money transactions related to drug importation. 

17You are a 28-year-old man with no prior convictions and presently placed at Port Phillip Prison awaiting this sentence.  You were born in the Democratic Republic of Congo, the middle child of six.  Your father was a storekeeper  and your mother a teacher.  Your childhood became highly dysfunctional and without doubt  damaging to you when that country entered a state of war in 1996.  Mr Alexander’s  written and oral submission detail the background of that and the developing circumstances for you. 

18At eight, you and an older brother and sister escaped soldiers, likely paramilitaries, who had come to your home.  You got to Tanzania and a refugee camp there.  Conditions were very difficult and in addition you were sexually abused by a woman who had taken the three of you in.  The bizarre and distressing aspects of that are given in the tendered psychological report.  After six months there, you moved through Malawi and Mozambique to Zimbabwe.  You were exposed to violence and atrocity.  In 1999, the three of you lived for six years in a United Nations refugee camp in Zimbabwe.  There was further delay before finally achieving refugee status and you came to Australia in 2006, at 18. 

19In that year, you were told by the Red Cross that your parents were still living as refugees in Zimbabwe.  You had until then thought them dead.  They have remained there in difficult circumstances.  I was told, as I understand, that you have since seen them once.  You have given them financial support when able over the last decade.  You mother has been diagnosed with cancer.

20You settled with your brother and sister in the western part of Melbourne.  By dint of diligence and hard work you did well.  You studied and completed an apprenticeship in plumbing in 2012,  at 24.  Finding work in that trade was difficult;  but you saved, and in early 2013  you were able to purchase,  at modest cost,  a mixed-business owned by an African man in St Albans. 

21Over the time since coming here  you consistently engaged in volunteer work, assisting your community.  The tendered material and evidence before me supports that. 

22A part of the business was a Western Union transfer agency,  which processed money transfers to Africa at low commission.  It was legitimate  and I presume that you had necessary licence or authority.

23Mr Alexander's submissions track through the development of this to the offending now before me.  In short, he put on your behalf that a group of African people approached you and you began to transfer increasing amounts of money to Africa.  This moved to knowing, or being told, that they were proceeds of illegal but not drug-related importations into Australia  to agreeing to transfer using false identities (obtained by)  you for the larger commission rate of 10 per cent; and finally to realisation that it was a drug importation enterprise.  In that context, you agreed not only to fraudulently transfer funds, but (at again higher remuneration) to receive these  packages and pass them on.

24You admit that you received about $80,000.  Of this, Mr Alexander stated, you contributed $30,000 to an African charity  and $30,000 to your family in Africa, including to build a house. 

25Accordingly, there is a degree of conflict between the Crown and your own description of role.  As is often the case, there is little tested evidence before me.  I am guarded about minimisation of your role and the circumstance of your involvement.  That said, there are also factors to some extent supportive of the truth of Mr Alexander's account.  That would particularly be the strong evidence of your otherwise good character and that his account seems to include your contribution to and benefit from  importations of drug  successfully received and delivered on.  There was no evidence of enrichment.

26I find that I am left with acceptance of at least the skeletal description of the development of your involvement given my Mr Alexander.  However, I also find in accordance with my earlier remarks that you played an important role, one, on the objective evidence, closely connected with and responsible for  important aspects of the enterprise.  You were significantly and seriously involved.  You became so in expectation of  and received  substantial reward.

27Forensic psychologist Edwin Kleynhans notes symptoms such as flashbacks and memory effects consistent with post-traumatic stress disorder.  His concluded diagnosis is, and I find, that you have suffered that condition over some time, associated with the trauma of your early life experience  including the sexual abuse at the hands of the woman with whom you lived in Tanzania.  She was  or presented herself as  a family friend.   Mr Kleynhans states that the condition has likely been revitalised by your incarceration.  Symptoms of anxiety and depression are related to your post-traumatic stress condition, and to your present situation.  You have close connection to your family  and feel shame and isolation because of what you have done. 

28Mr Kleynhans goes on to state this as part of his Summary of Conclusions.  "People who are highly stressed (under the influence of stress hormones)  have deficits in their decision making.  I have observed the aforementioned in clients who experience trauma (example, fear of persecution, bushfire situations, et cetera).  The literature relating to highly-stressed individuals suggests that they have impaired judgment as the frontal lobe of the brain where executive functioning occurs is adversely affected by stress hormones such as adrenaline and cortisol.  Mr Masange was likely acting without thinking rationally, as his executive functioning had a defect at the time of offending".

29Mr Alexander's written submission argues "some scope to reduce" your moral culpability in committing these offences, that is, in accordance with the so-called first principle in the case of Verdins.  I do not find that Mr Kleynhans’  diagnosis of your condition, its revitalisation in prison or his just-quoted opinion establishes at or during the relevant time  sufficient casual  connection between your symptoms of post-traumatic stress disorder  and this offending  that would sustain Mr Alexander's submission.

30This was considered, organised criminal activity over a considerable duration.  The evil of drug importation and its likely consequent damage to the community must have been apparent to you.

31I find that,  under Verdins, you have  and will find  prison more difficult because of your psychological condition.  Your concern for your family and mother's illness will add to this.  You fear not seeing her again. 

32Since your arrest in February of 2015, you have conducted yourself in prison consistent with rehabilitation and the desire for that.  This includes that for several months you were placed as an older prison mentor in the Port Phillip Prison youth unit, Penhyn.  Letters from those younger prisoners were tendered in evidence.

33You come to be sentenced for very serious offences, particularly that of Charge 1, which attracts a maximum penalty of life imprisonment.  Your role was critically connected to the importations and funding of importation of drug.  As stated, your deprived background is relevant to how you became involved, but you were not an exploited minion.  You became involved with an expectation of considerable reward.  These importations, those the subject of Charge 1, while not at the extreme end  and not successfully moved on, amounted to activity on a considerable scale.

34Charge 3, making a false application for a passport, was committed whilst on bail and, although I accept that you wish to see your mother again, I find that its fundamental aim was to leave Australia and evade the consequences of your offending. Its circumstances contain a significant level of sophistication. It is a serious example of the offence. Section 16(3c) of the Victorian Sentencing Act states a prima facie position of cumulation of sentence.  I also see the need to sentence in accordance with the principles of totality; and will only partially cumulate your sentence on Charge 3.

35In offending such as this, the sentencing considerations of deterrence, particularly general deterrence, your moral culpability, and the need to both condemn and impose proportionate punishment  are relevant.  In such cases, general deterrence is a particularly important sentencing purpose.  My sentence must be imprisonment of substantial length.

36There are mitigating and moderating factors.  They include the following.

37(1)    Your plea of guilty and cooperation;

38(2)   That you have no prior convictions and are a person of otherwise good character.  The character evidence tendered and led is not only voluminous  but,  I find,  of high quality.  Features of it are encapsulated at paragraph 71 of
Mr Alexander's written submissions.  This evidence presents you as strongly connected to family, generous and highly supportive of your community and its young, and a man of talent and capacity.  You have engaged consistently over the time since coming to Australia in volunteer work;

39(3)    Your personal history and circumstances.  I have described those, and what I see to be the particular relevance of them;

40(4)    Your prospects for rehabilitation.  I find that such prospects are high.  As stated, you have otherwise behaved as a valuable, admirable member of the community.  You have family and community support, and capacity for employment.  Your own letter to the court is consistent with my findings on this.  You state  insightful remorse  and determination not to offend again.  In your case, the relevance of specific deterrence is not removed;  but its importance is reduced.

41These moderating factors go to reduce the length of your sentence.  They may, in this case, particularly be reflected in your minimum term.  I feel what I think is legitimate sympathy for your past experience and situation.  However, I must also impose a sentence which attempts to adequately meet the seriousness of your offending.  Stand up please, Mr Masange.

42I sentence you as follows:  on Charge 1, you are sentenced to seven years' imprisonment; on Charge 2 you are sentenced to ten months' imprisonment; on Charge 3  you are sentenced to two years' imprisonment.  On the summary offence of breaching a condition of bail, you are sentenced to two months' imprisonment. 

43I direct otherwise then and in accordance with s.16(3c) of the Sentencing Act I therefore direct that six months of the sentence for Charge 3 be served cumulatively upon the sentence for Charge 1.  That is a total effective sentence of seven and a half years.  I set a minimum term of four years before eligibility for parole.  I declare 542 days of presentence detention already served.  Had you not pleaded guilty, I would have imposed a sentence of 11 years, with a minimum term of eight years.  Are there other matters I need to address?

44MS LOH:  Simply as a formality of the commencement date in relation to Commonwealth charges.

45HIS HONOUR:  Because there are - yes, I see.  You cannot just make it partially cumulative, I have got to set a commencement date.

46MS LOH:  Yes, Your Honour.

47HIS HONOUR:  That reflects the six-month addition.

48MS LOH:  Yes, that is so Charge 1 and Charge ‑ ‑ ‑ 

49HIS HONOUR:  I did not reflect on that earlier enough, what commencement?  I always ask - sit down please, Mr Masange.  I always ask.  I presume - what does that mean?  That Charge 1 starts ‑ ‑ ‑

50MS LOH:  Today, Your Honour.

51HIS HONOUR:  Well, would it not be better to make Charge 1 starting in six months' time?

52MS LOH:  If Charge 1 is the head sentence, Your Honour.

53HIS HONOUR:  Yes.

54MS LOH:  It could just start today.

55HIS HONOUR:  I see, and then you - Charge 1 can start today, Charge 2 can start today.

56MS LOH:  Yes, Your Honour.

57HIS HONOUR:  Because it is concurrent, the summary offence can start today, and the commencement date for Charge 3 is six months' short - I am sorry, is 18 months' short of the end date for Charge 1.

58MS LOH:  That is correct, Your Honour.

59HIS HONOUR:  And that is seven years from today?

60MS LOH:  So starting five and a half years from today.

61HIS HONOUR:  Well it is five and a half years from today.

62MS LOH:  That is - yes.

63HIS HONOUR:  I think you need to tell me what that date is.

64MS LOH:  It can actually just be expressed as commencing 18 months' prior to expiry of the sentence on Charge 1.

65HIS HONOUR:  All right, well that is what I announce.  I think we have effectively done that.  So commencement dates are Charge 1 today, Charge 2 today, the summary offence today, Charge 3 commences on the date 18 months' prior to the expiry date of the sentence of seven years, which otherwise put  is five and a half years from today.  Have I got that right?

66MS LOH:  Yes, Your Honour.

67HIS HONOUR:  All right, thank you.  Now, what other matters do I need to address?

68MS LOH:  I suppose I say for completeness, there is a requirement to explain to Mr Masange the consequences of non-compliance with the parole period?

69HIS HONOUR:  Is that right?  Or does that only apply to these conditional recognisance releases?

70MS LOH:  To parole as well, Your Honour, for the Commonwealth Act.

71HIS HONOUR:  Well with respect to the Commonwealth, I do not think I am in any position to do that.  The adult parole board - or is it the Commonwealth parole board?

72MS LOH:  It is the Commonwealth sentencing ‑ ‑ ‑

73HIS HONOUR:  They act completely independently of me, and they will advise him of what the rules are.  I do not know what the rules of parole are, beyond the fact that if you commit a serious offence, you breach your parole.

74MS LOH:  Yes that is more-or-less this.  But I think that - -

75HIS HONOUR:  But there will be - well, I mean that is self-evident, if you commit a serious offence whilst on parole release, you risk your parole being breached, but it can breached for many other reasons.

76MS LOH:  Yes, thank you, Your Honour.

77HIS HONOUR:  Failure to comply with special conditions and the like, and I am in no position to say what those special conditions might be.  Does that cover it?

78MS LOH:  Yes, Your Honour.  And just finally, an application for forfeiture in respect of the money found in Mr Masange's bedroom.

79HIS HONOUR:  In the house, yes, well I will sign that. 

80MS LOH:  Yes, thank you Your Honour.

81HIS HONOUR:  That is not ‑ ‑ ‑

82MR BODEN:  That is not opposed, I have obtained instructions on that.

83MS LOH:  Thank you, I am grateful to my friend.

84HIS HONOUR:  Yes.

85MS LOH:  So I formally hand up Your Honour the application and the draft orders in triplicate.

86HIS HONOUR:  Thank you, I will sign that order now.  That is the 20 - I think it is $22,000 or thereabouts?

87MS LOH:  Just over 22,000, Your Honour.

88HIS HONOUR:  Yes.  And that has been forfeited.  Where do I sign that?  At the back.

89MS LOH:  The draft orders are - they are three copies.

90HIS HONOUR:  I have got an application, just the orders I sign, yes I follow.

91MS LOH:  Yes, Your Honour.

92HIS HONOUR:  Now, in these matters, so-called forensic sample orders are not sought, is that right?

93MS LOH:  No, Your Honour.

94HIS HONOUR:  Good, thank you.  Well I will hand that back to you.

95MS LOH:  Thank you, Your Honour.

96HIS HONOUR:  There is the copy indictment, Fran.  Thank you for your assistance today, Ms Loh and Mr Boden.

97MS LOH:  Thank you, Your Honour.

98MS BODEN:  Thank you.

99HIS HONOUR:  Mr Masange can be taken to custody now.  I will wait for that to happen, and then I will leave.  I will leave now, thank you.

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