Director of Public Prosecutions v Mehrijafarloo

[2018] VCC 2144

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01818

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHSEN MEHRIJAFARLOO

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 December 2018
CASE MAY BE CITED AS:	DPP v Mehrijafarloo
MEDIUM NEUTRAL CITATION:	[2018] VCC 2144

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 C. Foote
For the Accused	Mr A. Imrie

HER HONOUR:

1Mohsen Mehrijafarloo, you have pleaded guilty before me to one charge of trafficking in a drug of dependence and one charge of possessing a drug of dependence, which is a rolled-up charge. You have also pleaded to two summary charges, which have been uplifted pursuant to s.145 of the Criminal Procedure Act 2009, that is one charge of dealing with suspected proceeds of crime and one charge of committing an indictable offence whilst on bail.

2The facts underlying your offending are as follows.  On the morning of
15 February 2018, Victoria Police Echo Taskforce members executed a search warrant at your home at 4/32 Park Street, Pascoe Vale, and also in relation to your car which was parked in the driveway.  You were awoken and answered the front door.  Another man, Ibrahim Hashimzade, who had stayed overnight, was found in the living room.  While police were there, you helped them to interpret for Mr Hashimzade as to what was happening. 

3In your house, police found the following items: (1) next to the front door, a press-sealed bag containing 31.8 grams of methylamphetamine located inside a shoe on a shoe rack, (2) in your bedroom, a press-sealed bag containing 17.5 grams of methylamphetamine concealed in a tissue box, (3) a second press-sealed bag in your bedroom, containing 4.6 grams of methylamphetamine concealed in a black box on a chair, (4) another press-sealed bag in your bedroom, containing 1.6 grams of methylamphetamine inside a purple medication box and, (5) $600 in your wallet. 

4In Mr Hashimzade's wallet another press-sealed bag containing 0.4 grams of methylamphetamine and $780 in cash was found. 

5In the kitchen, there were: (1) four vials containing white liquid, found on analysis to be 14.9 grams of a mixed substance containing Stanozolol, an anabolic steroid, (2) a pale yellow liquid in the fridge, found on analysis to be 17.7 grams of a mixed substance containing Methenolone, also an anabolic steroid and, (3) in a grey pouch located on a pantry shelf, 57 blue tablets, found on analysis to contain 7.5 grams of mixed substance containing Methandienone, also an anabolic steroid. 

6Inside a beige coloured shoulder bag discovered inside an internal storage compartment in the living room couch, police found: (1) a press-sealed bag containing 56.7 grams of methylamphetamine, (2) a second press-sealed bag containing 44.7 grams of methylamphetamine, (3) four press sealed bags containing a combined total of 96.2 grams of methylamphetamine, (4) a press-sealed bag containing a dark brown compressed powder, found on analysis to contain 8.4 grams of a mixture including morphine and, (5) numerous empty press-sealed bags, a box of staples, cotton thread and a silver spoon. 

7In the laundry, police found a set of electronic scales on top of the bench.  Inside your car, a BMW X3 wagon in the driveway, police found: (1) another press-sealed bag containing 4.1 grams of methylamphetamine and, (2) $8222 in the driver's side door pocket.  Enquiries with VicRoads revealed that the car was registered to you, with an acquisition date of 16 October 2017 and a disposal date of 5 February 2018, after which the car was registered to one Jamel Sleeman. 

8You and your co-offender were arrested and taken to Melbourne West police station where, in a record of interview, you made a number of excuses in relation to the items found by police and made no admissions.  Ultimately, analysis revealed that the 12 separate bags of methylamphetamine recovered contained a mixture which contained 257.6 grams.  The commercial quantity threshold for such a mixture is 250 grams.  The trafficable quantity is 3 grams as a mixture. 

9The purity of the mixture ranged from 77 to 92 per cent.  The weight of pure methylamphetamine across the 12 separate bags was 213.3 grams.  The commercial quantity threshold for pure methylamphetamine is 50 grams.  You are, however, to be sentenced for trafficking simplicter.  Your actions in possessing this amount of methylamphetamine for sale underlie Charge 1 on the indictment, trafficking in a drug of dependence. 

10In relation to the other substances discovered, that is the Stanozolol, the Menandienone, the Methenolone and the morphine, their weights were 14.9 grams mixed, 7.5 grams mixed, 17.7 grams mixed and 8.4 grams missed, respectively.  The relevant trafficable quantity in relation to each, being 500 grams as a mixture and 8.5 grams mixed in relation to the morphine, the pure morphine content discovered, being less than 2 grams, which was the relevant trafficable quantity. 

11Charge 2, as I said, is a rolled-up charge and relates to your possession of the three different types of anabolic steroids, as well as morphine and the tablets.  Your possession of $8820 underlies the summary charge of dealing with suspected proceeds of crime, and at the time of these offences, you were on bail for a drink driving matter, having entered that bail on 23 January 2018, and this underlies the charge of committing an indictable offence whilst on bail.

12You have no further prior or subsequent criminal convictions.  The maximum penalty for trafficking a drug of dependence is 15 years' imprisonment.  The maximum penalty for possession of the anabolic steroids and morphine is five years' imprisonment or one years' imprisonment with a fine of up to 30 penalty units if you satisfy the court on the balance of probabilities that the offence was not committed for any purpose related to trafficking, and it would appear that that is a basis on which that charge is laid, is that correct, Madam Prosecutor? 

13MS FOOT:  Yes.

14HER HONOUR:  Yes.  You were remanded in custody following your arrest on 15 February 2018 and have remained there since.  The Crown accepts that your pleas, which were entered before a contested committal took place, were entered at the first reasonable opportunity. 

15I now turn to your personal circumstances.  You are now 34 and were 33 at the time of this offending.  You were born the middle of five children to a family in Tehran, which family, your counsel told me was a strict Muslim family.  In that sibship, you have a brother 18 months younger than you and a brother six years older than you, which is relevant to the plea history. 

16Apparently you and your brothers rebelled against your parents and the strictness of their religious beliefs.   Your older brother began drinking, which is forbidden by the Muslim faith.  When you were about 12 or 13, your brother invited you to join his friends, who were drinking with him, at your home and on that occasion you had several shots of Vodka, which made you dizzy and unwell. 

17Thereafter you commenced drinking on a semi-regular basis, first with your brother and then with friends.  The court was told it was relatively easy for you to obtain alcohol, either from hotels or from people who sold it illegally in your area, there not being the age constraints as to alcohol consumption that exists here. 

18While at school, you would use money given to you by your parents for things such as school lunches to instead buy alcohol.  Not long after your parents found out, reacted angrily and there were continuous arguments, you were forced to go to the mosque and there was a period of constant fighting in your home.

19By the age of 14, you were drinking once a week or every fortnight.  Around that age, you left school having never enjoyed it, and began work as a motor mechanic, at which time you began getting money to continue to purchase alcohol.  By the age of 15 to 16 you were drinking daily with friends while continuing to live at home.  When you were 17 to 18, you began using methylamphetamine after being introduced to it by one of your drinking friends, who told you it would make you happy and that you would not become addicted to it. 

20In the intervening years, the arguments with your parents had continued and you were dealt with by harsh physical punishment, which caused you some stress.  Around this time, a marriage was arranged for you and you ultimately married, aged 19 or 20.  The impending marriage also caused you some stress, but you did not immediately become a regular user of methylamphetamine, some 18 months elapsing from the time of your first use of it to becoming a regular user.

21Your sporadic use of methylamphetamines continued for some years, but events relating to your brother added to the pressures in your - sorry, I go back to that previous paragraph - however, you did not become an immediate regular use or methylamphetamine, some 18 months elapsing from the first time your use of it to the second.  Your sporadic use of methylamphetamine continued for some years, but events relating to your younger brother added to the pressures in your life.

22The court was told that your disobedience to the Islamic State and drinking alcohol were not tolerated either by your family or in your neighbourhood.  Eventually, this behaviour upset a neighbour who was a police officer in the Iranian Security Services who, in particular, did not like your younger brother, with whom he had got into arguments about discipline and religion. 

23Ultimately, when your younger brother was 21, he was arrested, taken into custody and detained on charges of dissent against religion and State.  Those charges carry with them the death penalty.  By this stage, your older brother had moved to another town two hours away and so you became very involved in being the main person in your family to visit your brother and assisting your father in his attempts to get your brother out of gaol.

24Increasingly, you visited him one on one, and moneys were paid and strings pulled to defer the imposition of the death sentence.  Your brother, in all those years, however, continued to remain in custody and ultimately, as I have said, you were the main person visiting your brother.

25Knowledge of your drinking had become widespread within your community, particularly in the wake of your brother's arrest, and you began receiving threats from neighbours and local community members that you too would be arrested as your brother had been.  In particular, your brother's case manager in gaol told you you were likely to suffer the same fate as he.  It was during this time that you began to use ice on an increasingly frequent basis, smoking it daily from about the ages of 22 to 27.

26In that time, as I have said, you had married, initially residing with your wife and the infant daughter, then born to you at your parent's home.  However, against tradition, it would seem, you, your wife and daughter moved into your own premises as a result of tensions between you and your parents and your wife's objections to their interference in your life.  By this time, you had ceased working as a motor mechanic and had taken up employment as a tailor, which employment you held until leaving Iran in 2013. 

27At the age of 27, you ceased using methylamphetamine, to which you had become thoroughly addicted, smoking it whenever you could during the day, including at your workplace.  Your wife threatened to leave you and your parents-in-laws intervened and you realised, as the court was told, that it was ruining your life and so ceased used of that drug, essentially coming off it through your own efforts, but continued to drink alcohol on a daily basis at what would have appeared to have been a problematic level.

28The court was told that once you ceased drug use, which you turned to as a successful means of allaying your fears about your brother and your own position, your concerns about the possibility of being arrested and detained like your brother heightened until ultimately you decided the danger was so imminent that you had to leave your home and country.  In effect, the court was told that once you stopped using drugs, you became far more aware of the dangers of imprisonment that you faced. 

29You bought a false passport, as you had not undertaken the two years of mandatory military service required in Tehran before a person can be issued with a passport.  You flew to Malaysia and then Singapore and then paid $6000 for a place on a boat to Australia.  Your wife was deeply distressed by your plans to move.  She did not wish to move to another town, as you lived in the same neighbourhood as your parent-in-laws, so you felt you had no choice but to remain where you were.

30The boat trip took four to five days and was harrowing.  On the second day, the pump failed, as did the engine, and the 108 passengers kept the craft afloat by bailing out water, using pots/pans and any implements they could find.  Eventually, the boat was apprehended by the Australian Navy and you were detained on Christmas Island before being moved to the Curtin Detention Centre and then a detention centre in Perth. 

31Your counsel told me that you had failed to dispose of the false passport you had purchased before being picked up by the Australian Navy, and this created some delays for you insofar as immigration was concerned, it being the belief that as you had a passport, you could return to Iran.  Eventually, you went on a hunger strike for 26 days, which apparently speeded up the process, and you were eventually released into the community of a bridging visa. 

32You came to Melbourne, as you had friends here, living with them for several months and then moving into a shared household.  However, life was difficult for you as you were unable to work and the news from home was depressing.  Your wife was pregnant at the time you left Iran, your second child was born while you were in custody, and your wife coped with the separation poorly, making several suicide attempts. 

33You were in detention for about 12 months, in which time you detoxified from alcohol use and were determined to remain abstinent on your release.  After about another 12 months, however, during which you suffered from depression and anxiety in relation to family, you ultimately turned to alcohol use once more as a means of relieving your distress. 

34In about 2016, you were allowed to work, but efforts of the Red Cross and Centrelink to find you employment were unsuccessful.  By this time, you were living alone by choice, the court being told because of your stress and family issues, you wanted to drink and be alone.  You drank wine because it was cheap, drinking every day and night, but did little otherwise than stay at home and consume alcohol. 

35After about six months, when you were drinking with friends, one of them, an ice user, was in fact smoking ice, and the court was told the smoke hit your face, you smelt it, you said it "reached my brain" and you succumbed and began smoking ice, first about twice a week, but swiftly progressing to every night.  As a result, you lessened the amount of contact you were having with your family in Iran, as you were afraid they would realise you were again using methylamphetamine. 

36The court was told that whilst your family are away, you are in gaol in Australia; they do not realise it is in relation to drug use.  While in gaol, you have had contact with your wife and family about once a week, but apparently your wife's mental state continues to be very poor, as word has gone around the neighbourhood that you are in gaol in Australia, and people have told her that you were arrested for possession of up to 100 kilograms of drugs.

37She recently tried to overdose on pills and was only taken to hospital by her parents to have her stomach pumped after your small daughter contacted them.  You were unable to speak to her for about the first 20 to 25 days in prison as you did not have her telephone number.  You said that speaking to her gave her some piece of mind and she does still enjoy the support of her parents and a sister.

38You have made a number of forward strides whilst in custody, ceasing drug use and undertaking alcohol and drug programs and other programs such as cleaning operations and occupational health and safety.  In particular, you have studied English, both by classes in prison, which teaches English, apparently, at a rudimentary level and then by your own efforts, by visiting the library, using the dictionary and presumably, talking to other prisoners. 

39The court was told that until you were imprisoned, your English was very limited but it was evident on the plea hearing that you now have a good grasp of English; you were able to respond to the arraignment proceedings without the assistance of an interpreter and, indeed, during the plea hearing, spoke to the court on a number of occasions in a way which demonstrated both your fluency in English and your understanding of it and this is much to your credit. 

40You have had some setbacks in gaol, primarily in late May, early June of this year, suffering a serious assault from another prisoner in which your jaw was fractured.  Surgery was required and you now experience numbness over half your face, which requires ongoing medical attention and which you have been told by the doctors is likely to last for about the next 12 months. 

41However, for some time now, you have been employed in the gaol as a billet, which is a position of trust, both in cleaning operations and now at Port Phillip where you are currently being held on the food line in the kitchen.

42Efforts are being made within the gaol by teachers to continue with a more advanced form of English instruction, and your counsel told me you were anxious to avoid a relapse into drug and alcohol use and to improve your position, and you hope ultimately to be released into the community, obtain work, and sponsor your wife and children to Australia.  I accept from the certificates I have received as to the courses you have undertaken, your progress in gaol and your presentation, that you have indeed used your time in gaol profitably. 

43Psychiatrist Dr Anthony Cidoni in his report dated 15 November 2018, noted that you described a depressive episode at the age of 21, which had no clear trigger, which lasted for one to two years, associated with depressed mood, reduced energy, insomnia and suicidal ideation, for which you received no treatment.  You reported to him that you relapsed into that depressive state when you came to Australia and you have suffered from "consistent depression since then associated with poor sleep with initial insomnia, up at 3 am till 4 am at times, reduced appetite, eating once a day without any weight loss, and suicidal ideation with several occasions of hitting his head with a broken bottle several months before his incarceration." 

44You also described to Dr Cidoni a history of nightmares, saying that you had seen people drowned and had nightmares of people trying to kill you almost every night, also describing associated anxiety with symptoms of sweatiness, tremors and increased heart rate.  You said your mood in prison had improved but you were still depressed, saying that you were always worried, nervous, and had periods of dizziness and increased heartrate. 

45HER HONOUR:  Are you managing all right?

46OFFENDER:  Yes.

47HER HONOUR:  All right, thank you very much.  And with that anxiety significantly increased by the prospect of deportation, which I will discuss shortly. 

48You also describe what Dr Cidoni said was "significant stress in relation to his wife, who has been experiencing self-harm, including by overdose".  You describe to Dr Cidoni periods of paranoia in the context of your ice use, which was exacerbated when three to four weeks before your offending your house was broken into.  You told Dr Cidoni that your paranoia escalated to the point where you believed someone was hiding and was going to kill you and that you were being watched and heard people in the backyard talking about you.

49You also reported a three to four day period in custody where you were still hypervigilant and paranoid, but said this had significantly improved, although you occasionally would get "a bit paranoid and look around for threats". 

50About six months before your incarceration you visited a GP for a stomach upset and were prescribed the anti-depressant Lexapro, but you have never previously seen a psychiatrist or had mental health treatment.  It was Dr Cidoni's opinion that you had been through a significant degree of trauma associated with significant mental health difficulties and had suffered from a major depressive disorder.

51He said that whilst you did not meet the criteria for a diagnosis of a separate anxiety disorder, you did have post-traumatic stress disorder symptoms and a history of not insignificant alcohol use and methamphetamine use, saying you had a disorder with each, as well as a history of methamphetamine induced psychotic disorder.

52Dr Cidoni stated:

"In my opinion, his substance use has clearly been a form of self-medication for his significant levels of distress.  He has ongoing depressive and anxiety symptoms that, concerningly, are untreated.  The other disorders are in remission." 

53Dr Cidoni believed you required a review of your depression and anxiety, but given that you have refused antidepressant medication, psychological interventions would need to be put in place and he said:

"In my opinion, he has experienced and will continue to experience imprisonment as more onerous than a person in normal health."

54Concerningly, Dr Cidoni stated that he believed there was "a significant risk with ongoing incarceration and, particularly, with detention and deportation, of an escalation in his depression and anxiety and a potentially higher suicide risk."  He believed that treatment of your mental health and substance use disorder would result in a reasonable prospect of rehabilitation in the absence of any personality disorder or any previous history of offending. 

55Your immigration status remains problematic.  On your being charged and remanded in custody, your bridging visa was cancelled.  However, you have been visited by immigration officials in gaol who had advised you that an application for a protection visa is an option that remains open to you, although if you receive a sentence of more than 12 months imprisonment, you would automatically fail a character test outlined in the Migration Act, which whilst not ending any hopes you may have of receiving such a visa, would inevitably make it far more difficult for you to do so.

56There appears to be a real danger that if you were unable to be returned to Iran, which you greatly fear for understandable reasons, you would be placed in indefinite detention.  Further, it appears that at one period of time during your stay in immigration detention, there was a computer glitch so that countries such as Iran were in advertently able to access details of persons such as yourself who have fled the country as a refugee.  This would heighten the dangers you might face on any return to the country of your birth of detection and imprisonment.

57Your counsel submitted that I should consider placing you on a combination sentence of imprisonment, followed by a release on a Community Corrections Order.  He pointed to your lack of prior convictions, the trauma you had experienced over so many years, your ability to maintain constant employment as a motor mechanic, and then as a tailor in Iran, and the great strides you have made in custody.

58It was clear that you returned to trafficking methamphetamine as a means of supporting your habit which, as the authorities make clear, means you are to be regarded in a slightly more sympathetic light than those who traffick damaging drugs purely for financial gain.  Insofar as the uncertainty surrounding your capacity to commence a Community Corrections Order on release from prison is concerned due to your immigration status, Mr Imrie submitted that a court should sentence according to the proper application of principles applicable to the particular case, without speculation as to the subject’s capacity to undertake a non-custodial disposition such as a Community Corrections Order. 

59In the case of Guden v R [2010] 28 VR 288, the Victorian Court of Appeal held, at paragraph 25, that:

"Like so many other factors personal to an offender which conventionally fall for consideration, the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release."

60This principle was reaffirmed in subsequent cases, see Konamala v The Queen [2016] VSCA 48, Da Costa v The Queen [2016] VSCA 49, and Schneider v The Queen [2016] VSCA 76.

61Certainly I accept that any term of imprisonment imposed will weigh more heavily upon you (both by reason of the depressive disorder that you suffer and the prospect of deportation) than the normal prisoner.

62Guden has, however, in my view, application in another sense, as was submitted by your counsel.  It was a submission of the prosecution that I should deal with you only by way of a sentence of imprisonment to be immediately served, both because of the seriousness of your offending, but also because of the uncertainty surrounding your capacity to carry out the requirements of the Community Corrections Order. 

63In Guden, reference was made to a line of authority relating to the issue of whether the prospect of an offender's deportation was a relevant or permissible matter to be considered when determining whether or not to specify a non-parole period. 

64That line of authority began in the decision of the New South Wales Court of Appeal in R v Chi Sun Tsui [1985] 1 NSWLR 308 wherein His Honour Street CJ held that the prospect of deportation was not an admissible or relevant factor which should affect the granting of a non-parole period. The High Court in R v Shrestha [1991] 173 CLR 48 held that the likelihood of the convicted person was subsequently released on parole was not an obstacle to the setting of a non-parole period.

65More recently, in the case of Schneider v The Queen, to which I have already referred, His Honour Priest J, at paragraph 23 stated:

"The fact that a prisoner faces possible deportation is not a reason for denying him or her the fixing of a non-parole period.  But a sentencing court is not entitled to predict whether a person will (or will not) be granted parole; or, if granted parole, the conditions of such parole.  Thus, in accordance with authority, this Court is not entitled to predict whether the appellant will be granted parole, and, if he is, the conditions under which it will be undertaken."

66Mr Imrie submitted that this authority has application to the question of whether or not a Community Corrections Order should be rejected as a possible disposition because of the unlikelihood that its conditions can be undertaken.  He conceded that the authorities in question were not precisely on point as they relate to a non-parole period rather than a Community Corrections Order, but nevertheless submitted they had application to the current situation before this court.

67In my view, Mr Imrie is correct in his submission. The fact remains that whatever the outcome in terms of the sentence today, you remain eligible for an application for a protection visa, whatever hurdles may lie in your way. The court cannot speculate as to what the outcome might be. Indeed, it would appear that the situation insofar as the carrying out of a Community Corrections Order is concerned is more flexible than that in relation to parole, as there is capacity pursuant to s.48 of the Sentencing Act for suspension of the period of operation of a Community Corrections Order if required.

68In my view, in these circumstances, a threat of deportation is not one which prevents a court from imposing such an order.  And even if you were to be taken to detention upon release from prison to commence such an order, application can be made to vary the terms, including the starting date and the possibility of suspension.  The question remains whether such an order is appropriate in your case. 

69The learned prosecutor correctly pointed out that whilst you are only facing a drug of trafficking simpliciter, it nevertheless involved amounts well above (in relation to the methylamphetamine) the commercial quantity applicable to that drug.  As is always the situation in cases of this kind, the court must have regard to the havoc and misery wreaked by the criminal distribution of this drug. 

70The prosecution correctly submitted that this was a serious example of trafficking in methylamphetamine, and the general deterrence is a particularly important principle in the sentencing exercise before me. 

71As against this, however, there are number of extenuating circumstances.  I am satisfied that you have been subjected to prolonged trauma.  Your brother has essentially been on death row for more than decade.  You, yourself, were subjected to threats so serious that you were forced to leave your pregnant wife and young daughter. 

72You endured a harrowing sea voyage.  On your release in the Australian community, you have had to deal with the knowledge of your wife's distress and your inability to assist her as well as your own inability to find meaningful activity. It is not surprising that the major depressive disorder which you had previously suffered from then recurred. 

73In those circumstances, therefore it is also not surprising that there was a recurrence of the alcohol abuse disorder and then a resumption of the ice addiction from which you had previously freed yourself.  Your descent then into drug trafficking in order to support your habit, which had reached such proportions that you developed a psychotic reaction to it, was also not unexpected. 

74You present with a good work history, maintained under trying circumstances in Iran, and you have used your time in gaol productively and well.  You present with no prior convictions and I do not regard the drink driving charge, which is yet to be resolved as I understand it, as relevant to the sentencing exercise before me.  You appear to be a man of some intelligence, as indicated by your capacity to significantly improve your English whilst in custody, and I believe there is reason to regard you as having fair prospects of rehabilitation. 

75It is therefore in my view not inappropriate to regard a combination sentence comprising a term of imprisonment to be immediately served and a release onto a fairly lengthy and tightly constructed Community Corrections Order, which would include supervision and frequent judicial monitoring as well as work hours and appropriate rehabilitative conditions, as answering the demands for punishment and general deterrence, as well as that reform, being the issues presented in your case.

76I appreciate that this sentencing response is one which would rarely be given but I regard yours as a distinctive case.  I also understand and note that the fact scenario relating to your offending shows that you had been involved at a serious and sophisticated level.  Nevertheless, I do form the view for the reasons I have stated that I should deal with you by a Community Corrections Order combined with a term of imprisonment.  I have had you assessed for a Community Corrections Order and you have been found suitable. 

77Now, I am going to need some assistance here.  The assessor has written, "Due to circumstances outside of the Department's control", that is being Correction's control, "Mr Mehrijafarloo is unable to be directed to report to Carlton Justice Service Centre for his first reporting and therefore has been directed to report to NJC."

78MS FOOT:  Neighbourhood Justice Centre, Your Honour.

79HER HONOUR:  Thank you. 

80MS FOOT:  In Collingwood.

81HER HONOUR:  I wonder what those circumstances are, they are closed or ‑ ‑ ‑

82MS FOOT:  Maybe they have go too many participants there; I am not sure.

83VOICE (from body of court):  Relocation and renaming of Carlton Community Corrections ‑ ‑ ‑

84HER HONOUR:  All right.

85VOICE:  (Indistinct) Melbourne Justice Service Centre.

86HER HONOUR:  So that is - all right, right, that makes sense.  All right, and is requested this location be reflected on his CCO.  And it is intended that upon attendance at NJC, Mr Mehrijafarloo will be inducted and re-directed to Carlton Justice Service Centre.  All right, I also understand that you have a friend who lives in Doncaster, who is currently minding your furniture and that you do have an address to go to on your release.  All right, now I am not - it seems to me that I can impose this sentence as an aggregate, Madam Prosecutor?

87MS FOOT:  Yes, Your Honour.

88HER HONOUR:  In the circumstance, you agree with that?

89MS FOOT:  Yes, I agree with that, Your Honour.

90HER HONOUR:  All right.  So how many days has he served?

91MS FOOT:  Three hundred and one, not including today, Your Honour.

92HER HONOUR:  All right, what does that work out to?

93MS FOOT:  Just on ten months, Your Honour.

94HER HONOUR:  Ten months. 

95MS FOOT:  In fact, ten months minus - well, two days shy of ten months; he was remanded in February, February 15.

96HER HONOUR:  All right.  All right, I am going to sentence him, your circumstances, to total effective - could you stand up please, sir?  I am going to sentence you to a term of imprisonment of 11 months.  I am then going to order that you are to be released on a Community Corrections Order for a period of three years and nine months, all right?  I need to explain what the conditions of the Community Corrections Order are.

97While you are on the order, whilst you are on the community corrections order, you may not commit any offences, all right?  That means using ice. 

98OFFENDER:  Yes.

99HER HONOUR:  Got it?

100OFFENDER:  Yes.

101HER HONOUR:  It also means it is - the way it is said, is you are not to commit any offence for which you could be gaoled.  It does not mean you have to be gaoled, but if you commit an offence like stealing something small like a box of matches from Woolworths, that is enough to bring you back here and you will be re-sentenced on this, all right?

102OFFENDER:  I do understand.

103HER HONOUR:  You do understand?

104OFFENDER:  Yes.

105HER HONOUR:  While you are on the order, you may not leave Victoria without the permission of the Community Corrections Office, you have to tell the Community Corrections Office of any change of address or employment within 48 hours of that change.  You must not attend upon the Community Corrections Office under the influence of drugs of alcohol.  You must report to and receive visits from the Community Correction Office, you must obey all lawful directions of the Community Corrections Office.

106Now, I am going to order special conditions.  You are to undertake 300 hours of unpaid community work.  You are to receive assessment and treatment for drug problems.  You are to undergo assessment and treatment for alcohol problems.  You are to undergo assessment and treatment for mental health difficulties.  There is going to be supervision.  And it is said that this - let me have a look - they are saying that because you are willing and motivated to comply with the requirements, no judicial monitoring is recommended, but I am going to impose it because I want to see how you go, all right? 

107OFFENDER:  Yes, Your Honour.

108HER HONOUR:  And so your first - judicial monitoring is I get a report from Corrections about how you are going and you have to come to court, all right?  So the first judicial monitoring will be - and you have to report to the Community Corrections Order within two working days of the start of this order.  Now, we need to - what is the date today, it is the 18th?

109MS FOOT:  Thirteen.

110HER HONOUR:  Thirteenth, so you, which is what - can you have a look at
13 January?

111VOICE:  Sunday.

112HER HONOUR:  All right, so you will have to report by
15 January, all right?

113MS FOOT:  Your Honour, I think he will be released on 14 or 15 January.  He was remanded on 15 February, because it is 11 months.

114HER HONOUR:  All right, so you ‑ ‑ ‑

115OFFENDER:  Seventeenth.

116HER HONOUR:  All right, because of ‑ ‑ ‑

117MS FOOT:  Yes.

118HER HONOUR:  Thanks, Ms Foot, my maths is everywhere, one of the reasons I did law.  So you will probably be released on the 14th or 15th, which means you must report by the 16th or 17th, all right?

119OFFENDER:  Yes.

120HER HONOUR:  Your first judicial monitoring, I am going to put down for the end of February, all right?  So we will make it - can we get a date please?

121VOICE:  The 27th.

122HER HONOUR:  27 February.

123OFFENDER:  Yes.

124HER HONOUR:  I am going to get a report and I am going to see how you are going.

125OFFENDER:  Yes.

126HER HONOUR:  I just want to keep tabs on this, all right?  All right, I mean it is pretty easy to do well in gaol because of all the structure around you, all right?  You have been a big user so I want to make sure.  So it is saying, probably because he is in custody, they are saying Carlton.  You need to start off going to the Carlton Justice Centre, they will probably transfer you to another justice centre if you - Corrections centre if you are living in Doncaster.

127OFFENDER:  Yeah.

128HER HONOUR:  Are you able to go to Doncaster all right?

129OFFENDER:  Yeah, and also I, I get another address in Coburg.

130HER HONOUR:  What is in Coburg?

131OFFENDER:  Yes, one of - another one of my mates.  I gave them two addresses.

132HER HONOUR:  All right.

133OFFENDER:  One in Doncaster, one in Coburg.

134HER HONOUR:  Well, it is going to be your job to keep all the details up, all right?

135OFFENDER:  Yes, okay.

136HER HONOUR:  All right.  So what they want is they - so he will have to - he has been told to report to the Neighbourhood Justice Centre on 17 December 2018 but that was on the basis that he got out today and that is not happening.  So I am going to order that - look, I am going to - you need to go to the Carlton Justice Service Centre - they will be right by then hopefully.

137VOICE:  Yes, so they are anticipating Carlton to be done by late January.

138HER HONOUR:  Yes, all right, we will make it the NJC just to be sure, so go to the Neighbourhood Justice Centre, you know how you were told all about that?

139OFFENDER:  Yeah, yeah, they explained something to me.

140HER HONOUR:  You remember where it was?  Good.

141OFFENDER:  But they say when they - when you, when you, when got out and you come to office and, yeah, (indistinct).

142VOICE:  It will be on the order.

143HER HONOUR:  It will be on the order and you will speak to
Mr Imrie and I will give that documentation.

144MR IMRIE:  Yes.

145HER HONOUR:  Is that all right?

146MR IMRIE:  Yes.

147HER HONOUR:  Or instructor as well, thank you.

148MR IMRIE:  Yes, well certainly, with respect, Your Honour.

149HER HONOUR:  All right.  All right?  That is everything that I need to say about the order.  Do I need to do a s.6AAA?

150MS FOOT:  Yes, Your Honour, and there is two ancillary orders of disposal ‑ ‑ ‑

151HER HONOUR:  Yes.

152MS FOOT:  Sorry, three ancillary orders, disposal, forfeiture and a forensic sample.

153HER HONOUR:  Yes, and I am going to do the forensic sample, trafficking is trafficking.  I think that can go on the - I am done with those. 

154MS FOOT:  And just formal declaration of the PSD.

155HER HONOUR:  I declare that 302 days have already been served by way of pre-sentence detention.  There does not seem to be a section - is there a s.464ZF?  I will sign the forfeiture order.  What I have said, Mr Mehrijafarloo, is that police are entitled to take a swab from your mouth, they are entitled to use reasonable force if you do not let them do it, all right?  We do an in custody one?

156MS FOOT:  I think because of the appeal period wait, it may have to be an out of custody one because he will be released ‑ ‑ ‑

157HER HONOUR:  Before the police get around there?

158MS FOOT:  Well, I understand they cannot do it until there has been - the appeal period has been - has expired for 28 days.

159HER HONOUR:  All right.

160MS FOOT:  I am unsure.  That is how it generally works in the out of custody ones but ‑ ‑ ‑

161HER HONOUR:  We better do an out of custody one.  Have you got an out of - have you ‑ ‑ ‑

162MS FOOT:  I do not think one has been e-lodged.  My instructor will do that, Your Honour.

163HER HONOUR:  Why do you not just - I do not think I have got one at all.  All right, well I will sign that when I get it. 

164MS FOOT:  Thank you, Your Honour.

165HER HONOUR:  Thank you.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of six years, with a minimum term of four years; it is heavy trafficking.  Thank you.

166COUNSEL:  As Your Honour pleases.

167HER HONOUR:  I forgot to add in my sentencing remarks that I accept, given the time that the plea was made and your strides in prison, that you are remorseful for your offending and weight is given to that as well.  Thank you.  Now, I spoke to you last time, Mr Imrie, about the refugee legal, did I not?

168MR IMRIE:  Yes, yes.  My very efficient instructor has already contacted them and they have looked at some documents in relation to my client's case and we will now - but I think now that we know exactly what the position will be, we will ask them to then take on his case.

169HER HONOUR:  All right, I will make sure that - my sentencing remarks, would they be of assistance?

170MR IMRIE:  Yes, probably, Your Honour, yes.  We will ‑ ‑ ‑

171HER HONOUR:  This is not me trying to enter the arena, it is just a matter of what documentation he may require.

172MR IMRIE:  That would certainly be useful, Your Honour, as much as we have we will provide to them.

173HER HONOUR:  All right then.  Well, I will forward them to your instructor, and thank you for that.

174MR IMRIE:  Thank you, Your Honour.

175HER HONOUR:  Very well.  Do you need me to - right, well done, thanks.  Thank you very much.  Thank you, counsel are excused, thank you.

176MR IMRIE:  Thank you.

177HER HONOUR:  Thank you, Mr Mehrijafarloo. 

178OFFENDER:  Thank you. 

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