Director of Public Prosecutions v O'Kane

[2018] VCC 1138

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

AT MELBOURNE

CRIMINAL JURISDICTION

CR 17-00430

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON O'KANE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 July 2018
DATE OF SENTENCE:	25 July 2018
CASE MAY BE CITED AS:	DPP v O'Kane
MEDIUM NEUTRAL CITATION:	[2018] VCC 1138

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr P Smallwood	Slades and Parsons
For the Director of Public Prosecutions	Mr P Pickering	Office of Public Prosecutions

HIS HONOUR:

1Aaron O'Kane, on 16 July 2018, I sentenced a number of other men:  James Mobasheri, Joshua March, Brodie Hughes and Jayden Reynolds.  They were all accused, connected to a police investigation that also detected your offending.  I commenced my sentencing reasons with some general remarks that applied to all accused.  They apply to you as well, so in order that there is consistency, I read into these reasons what I said at paragraphs one to 35 in the reasons for sentence of all the other accused.

2So it all makes sense I said this, it is necessary to commence with some introductory remarks that explain the methodology, for want of a better word, that I have employed in this sentencing process.  The reasons for these remarks is that notwithstanding that there are, in this instance, one accused but four on that occasion, to be sentenced today, they are not strictly co-accused.  Each has pleaded guilty to a charge, or charges, on an indictment that names that accused and no other, and that is the case here with you, Mr O'Kane.

3But in broad terms, each accused operated his own independent drug trafficking business.  The link is that the accused man Mr Mobasheri supplied the drugs to each of the other accused, including you, and as well, he supplied drugs to many others.  The point here is that all accused are at different levels in trafficking in the drugs that were supplied by Mr Mobasheri, but I intend to make some general remarks about drug trafficking offending that apply to all accused at the outset.  That will relieve me from simply repeating the same words four or five times, but I must repeat them here to you.

4There are some important matters that are relevant to you, and as they were to each accused; such as the impact of delay, the value of the pleas of guilty, and the fact that each of you, including you, Mr O'Kane, is a young man.  I will say something of these important sentencing considerations at the outset, and a little more when dealing with your own circumstances.

5Finally, notwithstanding that each accused, including you, face a separate indictment.  There remains a need to consider broadly the principles of parity between all accused here and also others that have been dealt with by other judges and in the Magistrates' Court.  However, it has recently been said by the High Court, the bedrock principle in the sentencing process is individualised sentencing.  I have endeavoured to apply that principle and thus there will be some matters that are repeated later when I get to your personal circumstances.

6Another more dated and perhaps more simply expressed principle of sentencing deserves to be referred to at the outset as it is the guiding approach that I have followed.  It was said by four of the five-member bench of the Court of Appeal in R v Storey [1998] VR 359 366, and I quote:

"Imposing a just sentence requires the judge to consider what the offender did and why, as well as who the offender is."

7I add to that simple formula for myself that I also consider for each accused person, and do so here, the question of what the future holds, and in particular, whether you are likely to commit similar or any offences, or whether you are likely to reform.

8So what each accused, including you, did was to traffic in various drugs of dependence in quantities that alone, or in combination, exceeded the large commercial quantity, or in their cases, commercial quantity or trafficable quantities.  As mentioned briefly, Mr Mobasheri obtained large and regular supplies of various drugs and trafficked those to others including you.

9Each of the other accused, including you, on-sold the drugs to other people and then on to the members of the public.  The quantities involved were such that while Mr Mobasheri is described as a "wholesaler", so too does that description fit you as it did for the other accused men.  In other words, to use the definition of "trafficking" as being the movement of drugs from source to user, each of the accused including you was above the user in the chain, perhaps by a couple of steps.  There is no precision in that description.

10In respect to the drug offences, it is, as it is in your case, the weight and the quantity that is the key factor in determining the gravity of the crime.  The point to be appreciated is that Mr Mobasheri and the other men that I have dealt with that he supplied were all - that is, all of you - were entrepreneurial drug traffickers playing an important role in the spread of drugs in our community.

11So to continue my general remarks and then connect them to the purposes of sentencing, it is plain that in our community, drug use is prevalent.  It is also plain that drugs have a corrosive impact on our community.  The courts deal daily with tragedy and harm where the cause can be sheeted home to drug use and addiction.  The impact is not just observed in the criminal justice system.  The health, and in particular, the mental health systems are stretched and overburdened as a consequence of the destructive impact of drug use.  Drug users, their families, and others who are the victims of drug-fuelled or drug-motivated crimes are adversely impacted.  In short, there are too many broken and damaged individuals all because of the scourge of drugs.

12Thus, when the courts are called on to deal with the drug traffickers, such as you, the response must be firm.  Foremost in imposing a just sentence is the need for the court to reassert proper values by denouncing this greedy and destructive entrepreneurial conduct.  The denunciation must be articulated not just in words but there must be a palpable, practical implementation of this denunciation in the form of periods of incarceration.

13In blunt terms, drug traffickers like you, having brazenly broken the law and potentially, or indeed likely, caused harm in our community, you must now face the consequences involving you being deprived of your liberty during what would likely be some of the best years of your life.  That is the harsh reality of committing a serious crime that you and each of the others have pleaded guilty to.

14The other prime sentencing consideration in respect of your drug trafficking is that the sentences of the courts must make it crystal clear to others who may be seduced into seeking so-called financial windfalls of drug trafficking that if you succumb then stern and certain punishment must await in the form of lengthy terms of imprisonment.

15There are other sentencing considerations and purposes that I will refer to when dealing with you as we proceed on, but in particular, what is set out in s.51C of the Sentencing Act is that I am required to consider establishing conditions that will facilitate rehabilitation. This is a matter of particular relevance due to what one counsel, in his plea, noted as a remarkable feature of all involved in the case, and it applies to you, and that is the very young age of each of the offenders, including you - though it must be said you were at the upper end of the age range.

16There seems to me to be two aspects of what I have described as the very young age of each of the accused, including you.  Firstly, in simple chronological terms, each of you was less than, or each of those were less than, or just beyond 21.  You were a little older, as I have said, at about 24.  The age of each of the accused is relevant in respect of committing serious drug offences.

17Normally, offenders committing serious crimes involving drug trafficking at the quantities involved here.  They are usually much older, hardened and organised criminals.  None of the others that I have dealt with, and that includes you, could be described in that way.  I will, of course, deal with, by and large, the absence of prior relevant criminal history.  It must be noted right at the outset that you have no prior criminal history or any subsequent.

18So the point that I am making here is that the very serious nature of the offending, the gravity of the crimes, would ordinarily have the effect that rehabilitation must substantially yield to denunciation and deterrence.  But in your case, as with the others, there is an acute tension and as I will explain,

it seems to me that there is, to some degree, a place for rehabilitation to remain as an important sentencing purpose.

19The point that I have made is given greater emphasis when I look closely at the offending, and in your instance, this is particularly so, and that is that the offending occurred over a relatively brief period of time lasting around a month or so from December 2015 to the first period of 2016.  Although in your case, the last transaction you were involved in came sometime later in March of 2016 - the day that you were arrested.

20So there has been a delay of over two years, or about two years and four months, and in your case, as in others, there is much to be seen in what has occurred to give confidence that establishing conditions to facilitate your rehabilitation will likely see you permanently or certainly fully reformed.

21Also, you, like the others, pleaded guilty, relieving the community of the great cost of a long trial or trials.  It meant that this court can deal with other cases involving anxious complainants or victims, witnesses, and accused.  Those cases can now be heard and determined in this court in a more timely manner, because you pleaded guilty.

22In fixing your sentence, I make it clear that I have given to you, as I did with the others, a significant benefit or reduction because of your plea of guilty.  I see

in you, as I did in the others, solid evidence of contrition, remorse and acknowledgment of wrongdoing.  It is then in my view established by the plea of guilty and other evidence.  It seems to me that you appreciate the stupidity of what you embarked upon and you are now determined not to repeat such foolishness into the future.

23All these and many other personal matters operate to inform me of those other questions that I set out from Storey's case; that is, who you are and what the future holds.  In that regard, the primary importance here is the sheer gravity

of what you did; that is, the enormous quantities of drugs that you trafficked.  But I say that this must not completely overwhelm the sentencing task that

I have undertaken.

24I am mindful of what the Court of Appeal, in particular Justice Chernov, said with the agreement of President Winneke and Justice Phillips in 2003 when dealing with the Director's appeal against the leniency of a sentence where the penalty that was imposed was a community-based order and a fine, both of those penalties without conviction, for four young men who pleaded guilty

to two armed robberies, some of those men having prior convictions.

25Justice Chernov said, in all the circumstances of that case, the seriousness of the offences should not wholly dictate the punishment that is appropriate.  Here the circumstances of the offences committed by each of the others and by you lead to the grave outcome that terms of imprisonment must be imposed.

26The point that I am now making is that the gravity of what each of those men did and what you did in trafficking significant amounts of drugs, while important, does not wholly dictate the length of the imprisonment and more importantly, the period fixed as the minimum period before you are eligible for parole.

27It seems to me one important reason that the large quantities involved should not wholly dictate the length of punishment emergences when consideration is given to the other matters spoken of in Storey's case, and it applies here in your instances.  I will outline as to your fall into addiction into OxyContin, and that is why you did what you did.

28The usual answer to that question in drug offences cases, as to why it was done, is simply unadulterated greed.  But here, I am compelled on the material in the prosecution case and by evidence led on your plea to give real weight to that other important but sometimes under-emphasised aspect of dealing with young offenders, and that is immaturity.

29It was set out by the Court of Appeal, comprised by Justices Phillips, Chernov and Vincent, in the DPP v SJK & GAS [2002] VSCA 131 161. I will not quote from that; it is set out plainly there that an important consideration in respect

of youth is immaturity.

30In more recent times, sentencing judges in appellate courts dealt with the issue of immaturity of the young where the crimes are serious and are crimes commonly committed by the young.  Here, I refer to offences of alcohol-fuelled violence or driving offences causing death.  This set of circumstances here

is different, but the Court of Appeal, in dealing with a 17-year-old who had pleaded guilty to serious terrorist offences, stated the following:

"Ordinarily and in general, the youth of an offender is an important mitigatory circumstance.  It is relevant to the assessment of moral culpability of the offender as the law recognises that immaturity and the impressionability of youth may be, and commonly is, an important contributing factor to the involvement of the young offender in the crime for which the offender is to be sentenced. In addition, the law regards the rehabilitation of offenders of substantial if not primary importance, not only in the interests of the offender but also in the interests of the community. 

"On the other hand, it is recognised that those principles need to be appropriately moderated where, as is the case, as in a case such as this"- and I interpose, in your case as well - "that the offender has been involved in serious and dangerous offending.  The relevance of immaturity is that it may, to some extent, lower moral culpability and thus the weight that needs to be given to denunciation."

31I will endeavour to make clear any moderation in respect of the offending that you committed, Mr O'Kane.

32The issue of primacy of certain sentencing purposes over others, such as youth and rehabilitation, is further complicated in your case by the operation of the serious offender provisions of the Sentencing Act. In respect of other offenders - Mr Mobasheri and Mr Hughes, but also you, Mr O'Kane - by reason of the plea of guilty to trafficking in not less than a large commercial quantity, I must regard protection of the community as the primary sentencing purpose.

33As to the operation of parity, I requested the prosecution to make written submissions as to where each of the accused men sat, including you, in terms of the seriousness of the offending.  The grouping was not surprising and fitted with my own observations that had developed over the course of reading this material, and then in the reading of the defence outlines, their pleas and the oral submissions.  The grouping was Mr Mobasheri at the top, which was obvious and unarguable.  The other rankings were that you, Mr O'Kane, fitted that with Mr Hughes, and below that was Mr March and Mr Reynolds.

34I have, in respect of parity, considered the sentences and the sentencing remarks where they are available:  of Judge Lacava, who dealt with Mr Fulaway, Judge Hogan, who dealt with a much older and much more criminally involved in terms of prior convictions and the like of Mr Troy Donaldson, and Judge Davies who dealt with Jason Scott, and Judge Stuart who dealt with

Mr Whitelaw.

35So I move now to comments that relate directly to you.  You, Mr O'Kane, have pleaded guilty to one rolled-up charge of trafficking in a drug of dependence, being ecstasy and cannabis in not less than a large commercial quantity, and one charge of negligently dealing with the proceeds of crime, being $722.55 found in your car on your arrest on 1 March 2017.

36The timeframe of the trafficking, as set out in the indictment, was from

14 December 2015 to 2 March 2016.  You were involved in seven transactions within that timeframe.  In fact, six transactions were within four weeks from

14 December or thereabouts to 17 January 2016.  There was a significant break, then, to 1 March 2016.

37You purchased and on-sold just two sorts of drugs, being ecstasy and cannabis.  The amount of ecstasy you transacted was 8,052 pills, which weighed

2.087 kilograms.  This was almost identical to the amount involved in the matter of Mr Brodie Hughes.  The total amount of cannabis involved in the transaction was 18.14 kilograms.  This was a significant portion of the total cannabis trafficked by Mr Mobasheri.  The prosecution calculations as to the estimate values of the ecstasy was between $45,000 to $49,000 and the cannabis between $16,000 and $17,000.

38You lived in the Geelong area.  Your transactions revealed that Mr Mobasheri would drive significant distances to meet you, often at a service station on

the highway outside Werribee.  Your conversations with Mr Mobasheri revealed business-like involvement in the trafficking of drugs.  You also paid attention to the quality of the ecstasy provided.

39In one discussion, you revealed your trafficking involved others below you selling on to users; that is, in setting up the transaction no.3 on 27 December 2015, the following was overheard in the police surveillance of Mr Mobasheri.  On the evening of 27 December, you contacted Mobasheri and told him that you had $19,000 so far.  He said he would see you tomorrow and give you five pounds of cannabis.  He asked you if you needed pills.  You said that your "runners didn't want those again."  Mobasheri said he had "white jokers", being ecstasy pills, which "test MDMA on the test kit" revealing that there was some efforts to look to the quality of the drugs.  Mobasheri told you that he would bring a thousand pills as well as the five pounds of cannabis.

40On the next day, you contacted Mobasheri and stated that you did not want the red ones - the ones that you had been told by your runners were of low quality.  Mobasheri went on to say, "Look, give them back and we'll swap them for others."  You said you had 500 left as you had just got rid of 500 more, and requested that Mobasheri bring you 1500 white ones, and there were further contacts.  It would seem that you were physically supplied with five pounds

of cannabis, but Mr Mobasheri was unable to provide you with the 1500 pills that you ordered and the basis of that transaction and those pills was on the basis of an agreement for sale.

41So although this was a relatively brief period of offending, it was at such a significant scale and with an entrepreneurial focus that the only possible sentence that

I could impose is one involving incarceration.  Your counsel conceded as much in his realistic plea.

42Your personal circumstances reveal a sad, almost tragic fall from being a law-abiding young man with strong family supports and strong principles passed onto you.  You fell from that into serious criminality.  You were born in Northern Ireland in 1991.  You are still a young man at 26.  You were 24 when you committed these offences; slightly older than some others that I have dealt with but still a young man.

43Your parents migrated to Australia in 2001, moving to the Geelong area where they have remained to date.  You attended school to Year 11 in Geelong.  Your parents had a daughter and son after settling in Australia.  After school, you travelled to Europe, staying with relatives and family in Northern Ireland for significant periods, and you worked there as a plasterer.

44On return to Australia, you commenced to work in the business where your father was employed.  Thus by an early age you had built up a good work history.  You then, in January 2012, decided to join the Australian army.  You intended, it seems to me, to make a career in the Army if things worked out.  Unfortunately, two unforeseen events occurred that put an end to that ambition.

45First, you were involved in a car accident in October 2013.  The consequences of this accident were set out in the psychological report of Mr Geoffrey Cummins, dated 14 May 2018.  If I could summarise, relying upon the chronology provided by your counsel:  it was that following the accident, you went by ambulance to the Austin Hospital where you remained for some three days.  There were injuries to your spine or neck but also a closed head injury.

46You then struggled with depression, anxiety, anger, sleeping difficulties and trauma.  You had difficulties in relationships and you had difficulties in continuing with your army training.  There was severe whiplash and difficulties that you had in respect of movement of your neck.  You presented thereafter with symptoms of post-traumatic stress disorder, in the view of Mr Cummins.

47You were, it seems, predisposed to anxiety as a consequence of ill health

of your mother, but you do continue to experience flashbacks and nightmares.  Part of the treatment that you were provided was painkillers in the form

of OxyContin and other prescription drugs Valium, Xanax and Seroquel.

48You had a graduated return, it seems, to work in the army.  However, in late 2015, you injured your back lifting a heavy box of ammunition.  You were again prescribed OxyContin for pain management.  You were, again, quickly addicted.  It seems that you never, in fact, dealt with or had control of your use or abuse of this drug OxyContin from the time that you suffered the car accident in 2013.

49What was said by Mr Cummins was that you had only ever been a social drinker and had never used illicit drugs, but following the motor vehicle accident you became dependent on OxyContin and Valium, all prescribed by your doctor.  But your addiction to OxyContin progressed.  You not only purchased OxyContin legitimately, but also on the black market, and you also intermittently bought Valium and Xanax on the black market.  What was explained was that, as you said to Mr Cummins:

"I sort of became addicted to OxyContin after the accidents.  But certainly after the lifting accident, I became really addicted to OxyContin.  I'd used up all my sick leave and some compassionate leave, and I was feeling depressed and having flashbacks.  I went to see an ex-Defence psychologist in Geelong.  By this time, it was OxyContin that I was addicted to and I just needed more and more of that drug.  That's when I started selling MDMA to provide cash which I could then use to purchase OxyContin on the black market.  I eventually started using MDMA and smoking dope.  The reason I started using MDMA was that I've always been into Googling things, and I read about MDMA and experimented with it in relation to symptoms of post-traumatic stress disorder."

50You also bought Valium and Xanax, as I said, on the black market and fell into debt, and it was in this context that you met Mr Mobasheri through other friends, and he became your supplier of MDMA.  You became the middleman between Mr Mobasheri - that is, you became a wholesaler to others and continued to buy from him, over those transactions, very substantial amounts of ecstasy and cannabis.

51Mr Cummins expressed the opinion that at the time of the offending you were suffering symptoms of post-traumatic stress disorder and were self-medicating for these symptoms.  He said your primary motivation for the offending was to obtain the money to buy OxyContin on the black market, having become addicted to that drug.

52What is of note, as I have said, is that up to that point you were not a user

of illicit drugs.  You took to ecstasy late and your main focus, as I have said, was selling ecstasy and cannabis to fund your abuse of OxyContin.

53Following your arrest, you remained in custody for a number of months, securing bail on 24 November 2016.  Your bail was to a residential drug program called RecoverOz.  You remained there for nine months, moving successfully through that program.  The clinical director, Mr George Thomson, was impressed and he wrote the following in a letter dated 12 September 2017.  He said that your struggle with addiction did not start in the well-worn and usual way through experimentation.  He said you are ex-army, and through an accident whilst on active service, you received injuries requiring strong medication.

54You became addicted to OxyContin, and when not available, began self-medicating with street drugs and your life went down from there.  He said that while at RecoverOz you progressed significantly, eventually becoming

a responsible member yourself of the therapeutic community and a lead tenant where you were assisting others, transporting them, and doing other tasks in the program.

55He indicated that you were integrating well after your release, or time out

of RecoverOz, that you were integrating well back into society and had the following supportive factors in your life:  you were back at work, you were regularly attending Narcotics Anonymous, you had regained the total support of your family, you had done random urine tests and they had proved clean, you had a complete aftercare plan that you had mapped out with her staff psychologist, and you continued to see the staff psychologist, and you were seeing drug and alcohol counsellors externally.

56Also, I have taken into account the fact that you were in a restrictive residential program.  I have taken into account in the fashion outlined by the Court

of Appeal in the case of Akuku v The Queen.  While at the drug rehabilitation facility, you met your current partner, Ms Hocking.  You have maintained that relationship and have done so through the significant trauma and sad news

of Ms Hocking having miscarriaged in mid-2017.

57Your partner has been working to have her own daughter in her full-time care, and you have supported her in that regard.  She spoke of this in her letter to the court, where she wrote that from her observations, she strongly believed that you had learnt your lessons from your previous mistakes and had shown and proved that to her in many ways.

58She said that getting full custody of her daughter was important.  She said that you had grown a very special bond with the young child, who was about two years old, and had become a role model, and you had really stepped up and become a good man in that period.  She saw that you were gradually building a life together with a solid foundation, and she hoped that would continue.  She said that you have changed your life for the best.

59You have regained the support of your parents.  You and your partner moved to the family home in Corio along with your two siblings.  Your family and partner, as I have said, or read from your partner's letter, but your family wrote letters as well.  Your mother - I will quote from - wrote that she was completely shocked when she learned of your legal predicament, but she says this:

"I feel that since the offences took place, I believe that my son has grown up into the man I know he could be.  He has settled down into a relationship, Caitlin and her daughter, and he has a job.  They are happy looking to the future together."

60This support is important, as you will need a stable environment when you are released.  As another indicator of what is your true character, you secured work immediately after leaving the drug residential facility.  You remained working until recent times.  This attitude and work ethic adds to my confidence that you will highly likely permanently reform and remain a law-abiding man into the future.  I read the letter of your employer, who was impressed with you.

61After adjourning your plea when the other offenders were listed, your counsel submitted that the reason for the adjournment, which he outlined, gave me further insight into your otherwise good character and prospects.  Without elaborating in any detail, I agree that your prospects for rehabilitation were further enhanced by what I was told during your plea as to your cooperation.

62As mentioned in the report from RecoverOz, you have continued to attend Narcotics Anonymous to deal with your addiction to drugs, prescription and illicit.  As mentioned in the general remarks, in the period of the delay since your arrest you have operated under the heavy but certain knowledge that you would be returning to do a significant term of imprisonment.  However, you have done all you could, in my view, in that time, to rehabilitate and stay out of trouble.  That is to your credit.

63As mentioned, but I say explicitly here, the value of your plea is considerable.  It expresses your remorse and acceptance of your wrongdoing.  A trial, or trials, would have been very lengthy and thus all in the criminal justice and the public who pays for it all, benefit by this matter being resolved by your plea of guilty.

64I have ensured that there has been a balance between all those brought before the courts following this police investigation into Mobasheri's drug trafficking business.  I have allowed for a period of potential parole that I hope facilitates your rehabilitation, but of course, Mr O'Kane, it is up to you.

65But you simply have to stay firm that you will not engage in any criminal conduct, but rather, live as you had done so up until late 2015, live as your parents thought you would by the upbringing they gave you; that is, following the law and being a decent member of our community.

66You are young and your prospects mean that your rehabilitation, as I have said, remains an important matter notwithstanding the gravity of your offending.  However, by reason of the serious offender provisions and by reason of the sheer gravity of your offending, my sentence must emphasise protection of the community, denunciation and general deterrence.

67You also face a consequential application for the forfeiture of the car that you were arrested in.  It is not an order that was sought against anyone else, notwithstanding that they were constantly moving drugs in cars and going

to pick it up and so on and so forth.  It is another small matter in the overall matrix that I take into account in your particular case.

68Doing the best I can, Mr O'Kane, I propose the following sentence.

69In respect of Charge 1, the trafficking in drugs of dependence not less than the large commercial quantity, you are a sentenced to a period of imprisonment of four years and nine months.

70In respect of the charge of dealing with the proceeds of crime negligently,

I sentence you to a period of imprisonment of one month.

71The total effective sentence is four years and nine months.  I order no cumulation.  The total effective sentence is four years and nine months, and

I fix a minimum non-parole period of two years and five months.

72There has been a time that you spent in custody before being released on bail.  That time has been calculated and reckoned as 267 days.  Having been reckoned, I declare that the 267 days is part of the sentence that I have just imposed, and I ensure that this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have already served 267 days of the sentence that I have imposed.

73In respect of Charge 1, and by the operation of the serious offender provisions of the Sentencing Act, you are declared a serious drug offender.

74Had you pleaded not guilty to these offences and been found guilty of them,

I would have imposed a sentence of eight years with a minimum term of five years.

75As already discussed, there is application relating to the forfeiture of the car that you do not stay in the way of, and I will sign that order.  There are other applications that have to be dealt with which I will deal with directly as you do not stand in the way of them.  Take a seat.

76MR SMALLWOOD:  As the court pleases.

77MR PICKERING:  Your Honour, may I just confirm with regard to the forfeiture, there is the car and there is also cash and two telephones as well.

78HIS HONOUR:  There are.  Forfeiture relates to one blue BMW that you were arrested in together with two phones that you had and the money that was the subject of the negligently dealing with the proceeds of crime, $752.55.  There were drugs of dependence that were located at the time that you were arrested and they are to be forfeited.

79The prosecution make application that you undergo a forensic procedure, the taking of a scraping of your mouth so that your DNA can be obtained and kept on a database.  I intend to grant that application.  Due to the seriousness of the circumstances, they warrant the making of the order and the granting of the order is in the public interest.

80You need to understand that when the authorities come to take the scraping from your mouth, if you do not cooperate, then they are authorised to use reasonable force to enable the forensic procedure to be conducted.  Just cooperate with that procedure.  Is there anything further?

81COUNSEL:  No, Your Honour. 

82MR SMALLWOOD:  As the court pleases.

83HIS HONOUR:  Thank you.  Mr O'Kane, there is no capacity for you to spend any time with those that care for you.  I am sure it would work well, but I have to have one rule, and it is that you go with the prison authorities now.

84I thank counsel again for their considerable assistance.  Mr Pickering, I am not sure it directly involves you, but your instructors in relation to the matters that were raised with respect to serious offender.

85MR PICKERING:  Yes, Your Honour. 

86HIS HONOUR:  But as I understand it, it is simply a declaration that relates both to the large commercial quantity but also the other charges as well?  Or is there anything further?

87MR PICKERING:  As I understand the - what has been emailed to Your Honour and to the other defendants' counsel is that there is a declaration with regard

to Mr Mobasheri, and then there is separately a declaration under (indistinct) which applies to (indistinct).  Yes, Your Honour. 

88HIS HONOUR:  All right.  If we have not heard back from Mobasheri's lawyer, and we when we do, we can either do it in open court, bring him back.  Or if

it can be done with agreement by making that declaration, I will make it.

89MR PICKERING:  Yes, Your Honour.  If my instructor is here directly I am sure they will inform your associate.

90HIS HONOUR:  Thank you.  The next step in the proceeding is that I will make available to the parties the sentencing comments as soon as I possibly can, unrevised.  They will be delivered to everyone unrevised, so factor that in.

91MR SMALLWOOD:  As the court pleases.  Your Honour, there was just a minor matter arising from Your Honour's sentencing remarks.  Nothing turns on it.  When Your Honour turned to address Mr O'Kane directly, I think Your Honour referred to the cash informing Charge 2 as $722 as opposed to $752, but it is just a very minor ‑ ‑ ‑

92HIS HONOUR:  Fifty-two.  Thank you.  Not good with figures like that.  All right.  The other matter is, Mr Smallwood, that the press have applied for these sentencing remarks to be available to them on a portal where they can listen to what I have said so that they report the matter accurately.

93MR SMALLWOOD:  Yes, Your Honour. 

94HIS HONOUR:  I have included that there was a delay and I accept the reasons and added only in that it showed something about him by reason of his cooperation.

95MR SMALLWOOD:  Yes, Your Honour. 

96HIS HONOUR:  I think that remains neutral enough to allow for the press

to have access to the whole of the sentencing remarks as they did with everyone else.

97MR SMALLWOOD:  I agree, Your Honour.

98HIS HONOUR:  Thank you. 

99MR SMALLWOOD:  And I do not wish to be heard to make submissions agitating a different course.

100HIS HONOUR:  Thank you.  Likewise?

101MR PICKERING:  Likewise.

102HIS HONOUR:  Thank you.  The sentencing will be made available on the media portal.

103MR SMALLWOOD:  As the court pleases.

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