Director of Public Prosecutions v Obian
[2020] VCC 915
•26 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01099
Indictment No.C1610735.2
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAER OBIAN |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October 2019 | |
DATE OF SENTENCE: | 26 June 2020 | |
CASE MAY BE CITED AS: | DPP v Obian | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 915 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Trafficking in a drug of dependence (commercial quantity) –1,4-Butanediol – Convictions at trial – Vast quantity across three charges – Upper-level offending – Principal offender – Instigator and directing mind of importation – Financial motive – High moral culpability – Reasonably youthful offender – No prior criminal history – Delay – Good prospects of rehabilitation – Supportive family – Custodial hardship through COVID-19 crisis.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 s 70, s 71AA – Justice Legislation Amendment (Police and Other Matters) Act 2019 s 14 – Crimes Act 1958 s 195H – Sentencing Act 1991 s 5(4).
Cases Cited:DPP v Fatho [2019] VSCA 311 – DPP (Cth) v Maxwell [2013] VSCA 50 – DPP v Gregory (2017) 268 A Crim R 1 – DPP v Moustafa [2018] VSCA 331R – Giretti v The Queen (1986) 24 A Crim R 112 – Nguyen v The Queen [2019] VSCA 184 – WCB v The Queen (2010) 29 VR 483 – Nguyen v The Queen [2011] VSCA 32 – R v Renzella [1997] 2 VR 88 – Karpinski v The Queen (2011) 32 VR 85 – R v Leroy [1984] 2 NSWLR 441 – Samuels-Orunmwense v The Queen [2015] VSCA 152 – Arthars v The Queen (2013) 39 VR 613 – Rodriguez v DPP (Cth) (2013) 40 VR 436 – DPP v Dalgliesh(a Pseudonym) (2017) 262 CLR 482 – DPP v Condo [2019] VSCA 181 – Sharbell v The Queen [2018] VSCA 324 – Ellis v The Queen [2018] VSCA 221 – Arici v The Queen [2019] VSCA 228 – Nguyen v The Queen (2016) 311 FLR 289
Sentence: Total effective sentence of 17 years and 10 months imprisonment with a non-parole period of 12 years and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S M K Borġ with Ms J Fallar Ms S M K Borġ | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr P J Billings | Peter Monagle Lawyers |
HIS HONOUR:
1 Saer Obian, you have been found guilty by a jury of three charges of trafficking in a drug of dependence in not less than the commercial quantity.[1] The maximum penalty for these offences is 25 years’ imprisonment.
[1] Contrary to s 71AA Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’).
The Facts
2 For the purposes of sentencing you, I accept the following facts in relation to the drug trafficking charges which are before me.
3 The Victoria Police Drug Taskforce conducted an investigation code-named ‘Operation Merlin’, which culminated in the arrest of several people and the seizure of over 3,800 kilograms (‘kgs’) of the drug of dependence 1,4-butanediol (‘1,4-BD’) on 14 June 2016.
4 In the trial it was alleged, and I accept the jury found, you imported 1,4-BD into Australia from China on two occasions in 2015 using your company, SAA Cleaning Services Pty Ltd’ (‘SAA Cleaning’), of which you were the sole director, secretary, and shareholder. Earlier, you had taken steps to register SAA Cleaning as an importer of industrial chemicals with the Department of Health.
Charge 1
5 Charge 1 was committed by you on 13 July 2015 when the shipment of an order of one pallet of 1,4-BD placed by SAA Cleaning arrived in Australia. On 11 May 2015, SAA Cleaning placed an order with Tai’an Health Chemical Company Ltd (‘Tai’an’) located in Tai’an, a city in China, for one pallet of four drums of 1,4-BD for USD $1,400.[2]
[2] Summary of prosecution opening dated 17 June 2019 (‘prosecution opening’).
6 Tai’an packaged the order of 1,4-BD into four two hundred litre drums. You enlisted the services of Austorient Freight Services (‘Austorient’) to help facilitate the logistics involved in importing the drums into Australia.
7 Correspondence from you to Austorient reveals you enquired about the shipment’s progress in late June and you were told it had been delayed. An Austorient tax invoice confirms a shipment of ‘1,4 Butanediol’ supplied by Tai’an was billed to SAA Cleaning at an address in Glenora Avenue, Coburg (‘the Coburg address’). Payment of $1,480.90 was required. This was paid in cash amounts of $900 on 9 July 2015 and $581 on 10 July 2015. A tax invoice for $806.76 from Famous Pacific Shipping Vic Pty Ltd dated 2 July 2015 was also issued to SAA Cleaning.
8 On 13 July 2015, the shipment arrived in Australia and was intercepted by Australian Border Force, who determined the consignment weighed 888 kgs, including the barrels.
9 The goods were picked up from Australian Container Freight Services at 7:06 am on 13 July 2015 and delivered directly to the Coburg address. The driver assisted in unloading four silver coloured barrels from the rear of the truck into a garage at the Coburg address. A transport proof of delivery document shows the goods were delivered on 13 July 2015 and you signed for them.
Charge 2
10 On 29 September 2015, SAA Cleaning ordered sixteen metric tonnes of 1,4-BD from Tai’an. Transaction records reveal on this date $15,000 cash was deposited into the SAA Cleaning bank account and $20,000 was deposited into your personal bank account. You then authorised the transfer of $37,229 to Tai’an.
11 Information supplied by Tai’an reveals the 1,4-BD cost USD $1,629 per metric tonne, with a total price of USD $26,064. Based on the exchange rate applicable at the time, this was approximately AUD $37,229.
12 An Austorient tax invoice in the amount of $5,659.17 billed to SAA Cleaning confirms a shipment of 1,4-BD was expected to arrive on 22 November 2015. The invoice for $5,700 was paid in cash on 23 November 2015. The total weight of the consignment was 17,760 kgs, including barrels. The shipment contained 20 pallets each of four drums of 1,4-BD, making a total of 80 drums.
13 The consignment arrived in Australia on 27 November 2015. You were then required to pay $5,659.17 additional charges before the goods could be released. This charge was billed to SAA Cleaning and paid on 23 November 2015 in cash.
14 As per your instructions, the goods were delivered to Neutral Warehouse on 27 November 2015. The consignment was then collected on four separate occasions. The first collection was on 27 November 2015 by ‘Saer’ in vehicle TYA031. The other three collections were all on 30 November 2015 by ‘Saer’ in vehicle ZKQ085. I am satisfied ‘Saer’ is a reference to you. Consequently, the indictment alleges you committed Charge 2 between 27 and 30 November 2015 and I am satisfied the jury so found.
15 On 30 November 2015, you ordered 5,712 one litre bottles along with 6,000 caps from FPC Food Plastics (‘FPC’). The order was placed in the name of ‘Sam’ and a mobile telephone number registered to you was provided.
16 The order was collected on 2 December 2015 by you and another man. You made the cash payment of $2,519 and the four pallets of bottles were loaded onto a truck.
17 On 8 December 2015, you enquired about ordering 2,000 boxes from Australia Corrugated Packaging (‘ACP’) which you said were to be used to carry bottles. You gave specific dimensions and told the ACP manager the boxes were required to hold six bottles each.
18 On 11 December 2015, you attended ACP and ordered 2,030 cardboard boxes. That day you collected 1,000 boxes at a cost of $638 which you paid in cash. On 15 December 2015, you returned to ACP and collected the remaining 1,030 boxes, for which you paid $643 in cash.
19 At your trial, the prosecution alleged these boxes and bottles were used to hold and store the 1,4-BD which police later seized from various locations including: premises in Lygon Street, Brunswick East; premises in Racecourse Road, Flemington; a public self-storage facility in Braybrook; and a motor vehicle used by Khaled Moustafa, who was one your associates. I note the 1,4-BD seized form the premises in Lygon Street is not the subject of any charge.[3]
[3] See trial exhibit 18 ‘Seizure of 1,4 Butanediol on 13 June 2016 – Not the subject of a charge’.
20 At trial, the prosecution alleged you trafficked in a commercial quantity of a drug of dependence in relation to both Charges 1 and 2. On the prosecution case, your trafficking comprised either possession of the 1,4-BD for sale or trafficking at common law. To that end, the prosecution alleged you participated in the progress of goods from source to consumer, the activity being performed in a commercial setting, with contact between you and at least one other person. The prosecution alleged you were involved in the onward movement of the drugs to the ultimate consumer.
Charge 3
21 At trial, the prosecution alleged Moustafa rented storage space (‘the Lygon Street premises’) from John Ioannou, who ran a florist shop named John’s Flower Box. The storage space was situated in a two-storey brick building on the corner of Glenlyon Road and Lygon Street in Brunswick East. It could be accessed via entrances in Lygon Street and in Glenlyon Road.
22 On 13 June 2016 at 3:30 am, John Ioannou notified police of an alleged kidnapping. Victoria police officers attended the Lygon Street premises and conducted a search of the building. While no one was located, investigators observed numerous cardboard boxes containing plastic bottles in a storage area. The bottles were consistent with the bottles you purchased from FPC and the cardboard boxes were consistent with the cardboard boxes you purchased from ACP.
23 During the later execution of a search warrant, police seized 70 one litre bottles of 1,4-BD, with a total weight of 56 kgs, which were contained within the cardboard boxes. Police also seized a public self-storage receipt in the name of ‘Khaled Moustafa’. As I earlier observed, these drugs are not the subject of any charge before me.
24 Police discovery of these bottles and documents triggered a series of communications by Moustafa in an effort to organise the movement of a large quantity of 1,4-BD stored in various storage facilities around Melbourne.
25 At 12:40 am on 14 June 2016, you attended Mini Koala Car Rentals in Bell Street, Preston. You enquired about renting a van for two days and told the duty manager, Wei Wei Wang, you had cash and a driver licence. Wang required a credit card from you. You left, returned a short time later and produced a South Australian driver licence in the name of ‘Saer Pbian’. Wang confirmed your photograph was on the driver licence, which she photocopied and placed on file. You paid $1,050 in cash and took charge of a white Toyota HiAce van (‘the HiAce’). You told Wang you were moving boxes with the van and you left the premises in a hurry.
26 Within about one hour, CCTV footage from a Kennards self-storage facility at 159 Racecourse Road, Flemington shows you and Moustafa removing numerous cardboard boxes and a large silver drum from a storage unit between 1:49 am and 2:01 am. You and Moustafa loaded these items into the rear of the HiAce, which was driven to the rear yard of premises located at 296 Racecourse Road, Flemington (‘the Racecourse Road premises’).
27 Munir Omer, who was temporarily residing on the second floor of the Racecourse Road premises, opened the rear gate of the property to allow the HiAce into the rear yard. CCTV footage from Racecourse Road shows you following the HiAce into the premises on foot. Over the next 20 minutes, you, Moustafa, Omer and another man named Bchinnati, unloaded the boxes and the barrel from the HiAce. The prosecution alleges, and I find, these were the same items removed from the Kennards self-storage facility. You then left the rear yard on foot.
28 That day at 4:10 am, the HiAce arrived at a public self-storage facility in Ashley Street, Braybrook (‘the Ashley Street storage facility’). At this time, police surveillance officers observed a silver Toyota Corolla (‘the Corolla’) enter the facility. CCTV footage shows a man dressed in a grey windcheater, dark pants and a dark coloured baseball cap, which the prosecution allege was you, exit the passenger seat of the Corolla and approach the rear sliding door of the HiAce.
29 The HiAce was driven through the security gates of the storage facility and went to storage unit 1590, where items were loaded into it. At 4:29 am, the HiAce left the storage facility. You exited the driveway of the storage facility on foot and entered the front passenger seat of the Corolla, which moved off.
30 At 4:46 am, the HiAce and the Corolla arrived at the rear of the Racecourse Road premises and the HiAce was reversed into the rear yard. Shortly thereafter, you, Moustafa, Omar and Bchinnati, removed numerous brown cardboard boxes from the rear of the HiAce and placed them in a shed. Both vehicles then left the premises.
31 Moustafa then telephoned a man named Inusah, whom he knew owned a van, to help move boxes and drums. CCTV footage shows Inusah, and another man named Formosa, arriving at the Ashley Street storage facility at 5:17 am in a white Toyota Townace van (‘the Townace’). Inusah and Formosa helped you, Moustafa, Omer and Bchinnati move boxes from the storage facility into the HiAce. At 5:30 am, both vans moved off. You exited the Ashley Street storage facility on foot and entered the driver’s seat of the Corolla.
32 Shortly after 5.30 am, police intercepted the HiAce, containing Moustafa and Omer, who were arrested. About 1,160 kgs of 1,4-BD in various sized plastic containers were seized. A short time later, police located and seized three 200 litre drums of 1,4-BD, with an estimated weight of 497 kgs, from the Ashley Street storage facility.
33 Later that day, police executed a search warrant at the Racecourse Road premises. Numerous cardboard boxes containing 1 litre bottles were located and seized, along with a 200-litre silver metal drum. The bottles and drum were found to contain a solidified liquid which was later analysed and found to be 2,626 kgs of 1,4-BD.
34 Charge 3 comprises your possession for sale on 14 June 2016 of the following drugs:
(a) 1,160 kgs of 1,4-BD in various sized plastic containers seized from the HiAce van.
(b) 497 kgs of 1,4-BD in three 200 litre metal drums seized from the Ashley Street storage facility.
(c) 2,626 kgs of 1,4-BD in numerous 1 litre bottles and a 200-litre metal drum seized from the Racecourse Road premises.[4]
This makes a total of 4,283 kgs of 1,4-BD which you trafficked on 14 June 2016. I find on the balance of probabilities these drugs were part of the shipment of 1,4-BD the subject of Charge 2. This will be relevant to how I sentence you on these overlapping charges.
[4] See trial exhibit 18a ‘Seizure of 1,4 Butanediol on 14 June 2016 – The subject of Charge 3’. A figure of 2,026 kgs had incorrectly been previously given in evidence in relation to the Racecourse Road premises seizure and was contained in the Summary of Prosecution Opening, but this was corrected to 2,626 kgs during the trial, with defence counsel’s consent.
35 The prosecution case on Charge 3 was put on the basis on 14 June 2016 you possessed the 1,4-BD for sale, or you were complicit with others in the movement of that drug to the ultimate consumer in accordance the common law concept of trafficking.
Arrest and Interview
36 On 28 June 2016, police executed a search warrant at your home in Glenora Road, Coburg, where you were arrested and taken into custody. You were conveyed to the Spencer Street Police Complex, where you were interviewed and made no comment to all allegations put to you.
Expert Evidence of Detective Senior Sergeant Kahan
37 During the trial, the prosecution led expert evidence from Detective Senior Sergeant Brett Alexander Kahan.[5] He has been a member of the Victoria Police since 1995 and had been stationed at the Drug Task Force, where he oversaw the management of the State's highest-level operations. He was the senior investigating officer of Operation Merlin.
[5] This was done by playing his pre-recorded evidence given during the first trial, which was aborted.
38 Throughout his career he has undertaken investigations as the senior investigating officer or informant and as part of an investigation team for low level drug trafficking through to high level organised crime groups engaged in significant drug trafficking syndicates. In 2016, whilst performing the role of Detective Acting Inspector at the Drug Task Force, he commenced three year’s research into the health problems created by the illicit use of 1,4-BD. As a result, he authored a paper entitled: ‘1,4-Butanediol — The need for Commonwealth and State legislative change’.
39 Accordingly, by reason of his knowledge, training and experience, Mr Kahan was qualified to give expert evidence regarding the nature and use of illicit drugs of addiction, drug trafficking methods and prices paid for various illicit drugs, particularly 1,4-BD. You counsel accepts I can properly have regard to this evidence in assessing the objective seriousness of your offending conduct.
40 Mr Kahan gave evidence to the effect 1,4-BD is an industrial solvent and is illegal for human consumption. This is because, once it is swallowed and absorbed by the human body, it metabolises naturally into gamma-hydroxybutyrate (GHB). GHB is often used as a party drug and has been a longstanding problem in Victoria. GHB is commonly called ‘the date rape drug’ and is often used to ‘spike’ intending victims’ drinks.
41 Mr Kahan examined Victoria Police Forensic Services Department statistics on investigatory discovery for the three-year period 2014 to 2016. These revealed only 13 grams of GHB were seized and analysed by Victoria Police during this period. Over the same period, 13 tonnes of 1,4-BD were seized by Victoria Police. Mr Kahan expressed the entirely reasonable opinion, which I accept, one can conclude from these statistics GHB has now been replaced by 1,4-BD in the Victorian illicit drug trade. Mr Kahan expressed his view the statistics confirm unequivocally GHB has now virtually disappeared from Victorian streets. He said, any person who overdoses on what they think is GHB has in fact overdosed on 1,4-BD. While 1,4-BD was previously sold on the streets as GHB, it has now become accepted and is no longer disguised, being sold by drug traffickers as 1,4-BD.
42 Mr Kahan gave evidence 1,4-BD is now causing a significant problem in Victoria. While it is commonly described as a ‘party drug’, young people who consume what they think is GHB, or its equivalent, do not realise the harm 1,4-BD can cause them. Because 1,4-BD needs to metabolise into GHB in the human body, it takes longer to have the ‘desired’ effect and drug users sometimes take more of the drug, thinking nothing is happening. This can result in a drug overdose with lethal consequences.
43 Moreover, as an industrial solvent, 1,4-BD apparently tastes terrible. It is often sweetened with some form of sweetener which often results in some discolouration, depending on the sweetener used. Because 1,4-BD freezes at a temperature of 18 to 19 degrees Celsius, sellers must heat it to turn it into its liquid form. 1,4-BD is commonly sold by drug dealers to street level consumers in small fish-shaped soy sauce bottles with red lids. Middle-level drug traffickers usually sell it in one-litre containers.
44 Mr Kahan gave evidence that, while over time the price of 1,4-BD has varied from $700 to $1,200 per litre depending upon the quality sold and the sale’s location, the price for middle-level sales involving litres in the metropolitan Melbourne area has consistently remained around $1,000 per litre, which equates to $1,000 per kg. I take this to be a reference to the returns expected by a wholesaler in the marketplace. Trial exhibit P13 is a chart showing projected revenue streams from selling the 16,800 kgs of 1,4-BD the subject of Charges 1 and 2 on the indictment. These vary from $11,760,000 at $700 per litre to $20,160,000 at $1,200 per litre. These figures do not take into account any wastage arising from the distilling and bottling process.
45 I will sentence you on Charge 1 on the conservative basis the likely notional value of the 800 kgs of 1,4-BD the subject of that charge at $700 per kg was an amount close to but under $560,000. I will sentence you on Charge 2 on the conservative basis the likely notional value of the 16,000 kgs of 1,4-BD the subject of that charge at $700 per kg was an amount close to but under $11,200,000. I have not included the notional value of the drugs the subject of Charge 3, because I consider they form part of the 1,4-BD already covered by Charges 1 and 2.
46 Clearly, this was a very large-scale drug trafficking enterprise and the expected financial returns were enormous. This is particularly relevant in the present case because of the line of authorities discussed by the Court of Appeal in DPP v Fatho,[6] which tend to support the proposition advanced in cases such as DPP (Cth) v Maxwell[7] that the ‘lower sentences’ imposed on importers of gamma-butyrolactone (GBL) and, sub silentio, 1,4-BD, could be seen to be ‘reasonably justified by the enormous reward differential’ compared to importations of other drugs.[8]
[6] [2019] VSCA 311 (‘Fatho’).
[7][2013] VSCA 50 (‘Maxwell’).
[8] Fatho [51] citing Maxwell [33].
47 In my opinion, the landscape in Victoria has changed since Maxwell was decided in 2013. As Detective Senior Sergeant Kahan’s evidence demonstrates, and the concerns expressed by Minister Neville[9] confirm, 1,4-BD is no longer a precursor for other drugs, but a dangerous substitute for GHB and, consequently, greater rewards are now expected to be derived from its importation and sale. Sentences need to reflect this changed environment. In this context it is important to note the Court in Maxwell opined:
Other things being equal, an importation which is undertaken because it will bring – or is expected to bring – a large financial reward to the offender will be more serious than one where the expected reward is small or non-existent. The underlying proposition is that the greater the (anticipated) reward of criminal conduct such as this, which inflicts such harm on the community, the higher the offender’s moral culpability.[10]
[9] Discussed below at [57].
[10]Maxwell [21], quoted with approval in Fatho [52].
Offence Seriousness
48 Trafficking in a commercial quantity of a drug of dependence is a very serious criminal offence as indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have committed. In my opinion, these are very serious examples of this offence. I accept the prosecution’s characterisation of this offending as being ‘in the most serious category’ of offending of this type.
49 As the Court of Appeal has recently reiterated, the sentencing regime for drug trafficking offences is quantity-based and, while the quantity trafficked is not determinative of my assessment of the objective gravity of these offences, it will always be of importance.[11] All things being equal, the greater the quantity trafficked, the more serious the trafficking offence.[12] Other important indicators of offence seriousness are your role, the duration of your offending and your motivation for involvement in it.[13]
[11] Fatho [70]; DPP v Gregory (2017) 268 A Crim R 1, 7–8 [23]–[24] (Maxwell P, Redlich and Beach JJA) (‘Gregory’).
[12] Fatho [70]. See also Gregory, ibid; DPP v Fernando (2017) 268 A Crim R 26, 38–40 [50]–[55] (Redlich JA); DPP v KMD (2015) 254 A Crim R 244, 254 [36], 257 [50]–[52], 260 [64] (Maxwell P, Weinberg and Beach JJA); Adams v The Queen (2008) 234 CLR 143.
[13] Gregory 8 [24].
50 It is to be observed the quantities of 1,4-BD trafficked by you are extremely large. The commercial quantity (‘CQ’) threshold for 1,4-BD at the relevant time was 2 kgs, except if possessed for a lawful industrial purpose and not for human consumption.[14] Accordingly, in committing Charge 1 you trafficked 400 times the CQ threshold, in committing Charge 2 you trafficked 8,000 times the CQ threshold and in committing Charge 3 you trafficked just over 2,140 times the CQ threshold. Clearly, the jury verdicts necessarily exclude your possessing the 1,4-BD for a lawful industrial purpose and not for human consumption. I note the Court of Appeal has recently referred to 8,865 kgs of 1,4-BD as being a ‘vast amount’.[15]
[14]The Act s 70 ‘commercial quantity’ and Schedule 11, Part 3, Column 2A.
[15] DPP v Moustafa [2018] VSCA 331R [65] (Beach, Emerton and Weinberg JJA).
51 So far as subjective factors affecting offence gravity are concerned, your role was that of the sole instigator, being the principal offender and directing mind behind the offending conduct. You planned and executed the importation and possession for sale of enormous quantities of this highly dangerous drug. I emphasise there are no charges before me in relation to the importation into Australia of the 1,4-BD, and you will not be punished for this component of the operation.
52 The offences were pre-planned, meticulously organised and well executed by you. Charges 1 and 3 were committed on single dates and Charge 2 was committed over a four-day period. Whilst one must not lose sight of the fact you are being dealt with for three separate and discrete offences,[16] viewed overall the offences were committed over an eleven-month period. As I earlier observed, your motive for committing these offences was purely and simply personal financial gain.
[16] As opposed to a Giretti charge. See Giretti v The Queen (1986) 24 A Crim R 112.
53 It is also relevant to observe in assessing the seriousness of the circumstances giving rise to Charge 3, that offence was committed by you actively participating, with others, in the movement of significant stocks of 1,4-BD from various locations where the drugs were stored in an attempt to conceal them from authorities, so they could be later sold into the community.
54 Whilst the legislation is quantity-based and not harm-based, it is nonetheless relevant to observe grave harm is inflicted on the community by offences involving the trafficking of 1,4-BD by modern methods. The harmful effects of 1,4-BD and the seriousness of these offences was emphasised in the evidence given during the trial by Mr Kahan and the harmful effects to the community of drug trafficking in general has been emphasised numerous times in recent decisions in the Victorian Court of Appeal.[17]
[17] See eg Gregory ibid; Fernando v The Queen (2017) 268 A Crim R 26, 41 [61]; Arico v The Queen [2018] VSCA 135 [338]–[339].
55 In Gregory (a Pseudonym) v The Queen (‘Gregory’), the Victorian Court of Appeal recently held current sentencing practice for commercial quantity trafficking is inadequate and needs to be uplifted.[18] The Court opined: ‘sentences well into double figures would have been expected for CQ trafficking offences where … the quantity involved approached the LCQ threshold’.[19]
[18] Gregory 24–25, [100]–[103].
[19] Ibid 24 [98].
56 Moreover, in Nguyen v The Queen (‘Nguyen’) the Court said, ‘there is a need for sentences for trafficking a large commercial (and a commercial) quantity of drugs to increase substantially’.[20]
[20] Nguyen v The Queen [2019] VSCA 184 [49]. See also Gregory 25 [102].
57 I note, at the time these offences were committed, 1,4-BD had no large commercial quantity threshold. One was introduced on 5 June 2019 and set at 20 kgs.[21] At the same time, the words ‘and not for human consumption’ were removed from the description of 1,4-BD in Column 1 of Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’). In introducing the Bill to amend the Act, the Minister for Police and Emergency Services, Ms Lisa Neville, confirmed the evidence given at your trial when she said:
Victoria Police and the Office of Public Prosecutions have reported an increase in the importation, trafficking and use of 1,4-B [sic.]. 1,4-BD is an industrial solvent that when ingested, is rapidly absorbed and metabolised to form GHB, which acts as a powerful depressant and disinhibitor. …
Users of these drugs are at particular risk of overdose.[22]
[21] Justice Legislation Amendment (Police and Other Matters) Act 2019 s 14.
[22] Victoria, Parliamentary Debates, Legislative Assembly, 6 February 2019, 231–2.
58 Minister Neville’s comments reflect community values and expectations in relation to sentencing for serious drug offences, which are a scourge on our society.[23] Moreover, it is clear your offending conduct is becoming more prevalent in the Victorian community.[24]
[23] See WCB v The Queen (2010) 29 VR 483, 493–4 [34]–[35] (Warren CJ and Redlich JA); DPP v Paulino [2017] VSC 794 [23] (Bell J).
[24] See Nguyen v The Queen [2011] VSCA 32 [83].
59 You played the primary role in a sophisticated criminal enterprise. You were the instigator and directing mind in an extensive and successful trafficking operation in 1,4-BD, although I accept there is no evidence of any sales of that drug having occurred. People performing the role you did must expect substantial sentences. By performing your role, you were knowingly part of the conduit between the importation into this country of 1,4-BD from China and the eventual buyer on the street. Your role can be characterised as being that of a willing participant at the wholesale level.
60 It appears personal financial gain was your sole motivation for committing these offences. Although, I accept there is no evidence of significant enrichment arising from your participation in the present offences and there is no evidence you were living a luxurious or grandiose lifestyle.
61 Overall, your role as the principal offender, the sheer scale of your offending conduct and your persistence in your trafficking activity requires me to assess your moral culpability in relation to this offending as being very high.[25]
[25]Cf Fatho [71].
Personal Circumstances
62 You were born in Lebanon on 29 December 1993. You are now aged 26 and you were aged between 21 and 22 years at the time of committing these offences. While you are no longer a youthful offender, the fact you were relatively youthful at the time of committing these offences is a relevant sentencing consideration.
63 Your family migrated to Australia in 2001 because of civil strife in Lebanon. After arriving in Australia, your family moved to Coburg and they have remained residing in that suburb since. You are an Australian citizen.
64 Your father Hamia Obian is 65 years of age and operates a clothes ironing business. Your mother Hala Obian is aged 50 and looks after the home.
65 You are the eldest in a sibship of three. You have a younger brother aged 24 and a younger sister aged 15. Your brother has just finished a degree in Aeronautical Engineering at RMIT. Your sister attends a secondary school in Coburg. Your parents and your siblings were in court supporting you at the plea hearing and during the trial.
66 You attended St Bernard’s primary school in Coburg and completed high school at Antonine College in East Coburg. After completing Year 12, you commenced studying civil engineering at Swinburne University. You had completed three years of the four-year degree at the time you were remanded in custody. At the plea hearing, your counsel told me you were continuing to study for your degree whilst in custody.
67 You are a single man who lived with your family in Coburg at the time of committing these offences. During your time at university, you worked part-time in a cleaning business before starting your own cleaning business – SAA Cleaning Services Pty Ltd. The company was incorporated on 17 December 2013 and it was the corporate vehicle used to import the two shipments of 1,4-BD into Australia. I accept, as your counsel submitted, SAA Cleaning Services has existed since 2013, and it was not created solely for the purpose of importing the 1,4-BD the subject of the present charges.
Mitigating Circumstances
68 You have no prior convictions or subsequent offences. You do have an outstanding matter in relation to a charge of affray[26] alleged to have been committed on 14 April 2019, which is to be dealt with in the Magistrates’ Court at Melbourne on 20 July 2020.[27]
[26] Under Crimes Act 1958 s 195H.
[27] Magistrates’ Court case number K11915718.
69 Clearly, this matter would be irrelevant to any sentences I impose on you for the present offences, except for the fact you have spent 75 days in custody in relation to that unrelated and undetermined charge at a time when you were on bail for the present offences. Your bail on the present offences not having been revoked, this time in custody is not ‘doubly warranted’ and is not declarable as pre-sentence detention in respect of the present sentence, because it is not ‘a period during which [you were] held in custody in relation to— (a) proceedings for the[se] offence[s]; or (b) proceedings arising from [these] proceedings …’ under s 18 of the Sentencing Act 1991 (‘the SA’). Nor have you been ‘in custody continuously since [your] arrest’ thereby engaging the provisions of s 18(6) of the SA in this case. If I am wrong about this, then an application can be made under s 18(7) of the SA to correct the PSD declaration in this case.
70 However, while these 75 days are not strictly ‘dead time’ under the Renzella discretion,[28] I nonetheless consider it is appropriate for me to take the 75 days you have spent in custody, since your arrest on the present charges, into account in a broad way.[29]
[28] R v Renzella [1997] 2 VR 88, 95–98.
[29] See Karpinski v The Queen (2011) 32 VR 85, 86 [1] –[8] (Weinberg JA); Wheldon v The Queen (2011) 31 VR 297, 300–302 [18]–[31] (Tate JA (Nettle and Neave JJA agreeing).
71 Your counsel submitted you are entitled to be considered a man of otherwise good character. However, he appropriately tempered this submission by acknowledging in serious drug trafficking cases the absence of prior convictions has less significance than in other fields of crime.[30] The rationale for this principle was recently restated by Priest JA (with whom Maxwell ACJ and Redlich JA agreed) in Samuels-Orunmwense v The Queen — a case involving a charge of attempting to possess a border controlled drug, namely heroin. His Honour said:[31]
less weight might be given to good character in cases like the present because of the objective seriousness of the offending, and the likelihood that those without prior convictions are more likely to avoid the suspicions of authorities.
Moreover, even in cases involving youthful offenders, where rehabilitation looms large as a sentencing factor, the weight to be given to prior good character is diminished in cases involving serious drug trafficking.[32]
[30] See eg R v Leroy [1984] 2 NSWLR 441, 446–447 (Street CJ, Glass JA and Yeldham J agreeing) (‘Leroy’).
[31] [2015] VSCA 152 [88], citing Leroy; R v Berisha [1999] VSCA 112, [27] (Charles JA, Tadgell and Buchanan JJA agreeing); Nguyen v The Queen (2011) 31 VR 673, 695–6 [88] (Maxwell P).
[32] R v Thomas [1999] VSCA 204, [16] (Callaway JA, Tadgell and Ormiston JJA agreeing); R v Harkness [2001] VSCA 87, [20] (Callaway JA, Winneke ACJ and Ormiston JA relevantly agreeing).
72 Regarding the circumstances of your offending, your counsel submitted, while Charges 1 and 2 demonstrate a degree of planning and organisation on your part, Charge 3 was a spur of the moment occurrence involving little planning. I do not entirely accept this is so. Charge 3 was not a spontaneous act on your part. It unfolded over several hours in the early morning of 14 June 2016 and it did involve some planning by you, for example, hiring the HiAce van.
73 Your counsel also submitted for the purpose of sentencing you, I should find the 1,4-BD which was the subject of Charges 1 and 2 is the same 1,4-BD the subject of Charge 3. I accept that is so. Moreover, I also accept the importation of 1,4-BD the subject of Charge 1 was a ‘dry run’ for the later and much larger importation of 1,4-BD the subject of Charge 2. In this sense, as your counsel properly submitted, all three charges can be viewed as forming parts of one continuing act of trafficking.
74 Your counsel submitted there is no evidence you made substantial financial gains from the commission of these offences. While financial gain was your obvious motive in committing these offences and, as I earlier observed, the potential returns were huge, I accept there is no evidence of your acquiring great wealth or of you living an extravagant or grandiose lifestyle. There is also no evidence any 1,4-BD was ever sold by you or any other person.
75 A significant mitigating circumstance in your case is the effect of delay. There will always be some delay in prosecuting highly complex drug cases, but here there has been considerable systemic delay occasioned by the progress of these proceedings through the courts. You are not to be punished for pleading not guilty to these offences.[33]
[33] See Arthars v The Queen (2013) 39 VR 613, 621 [27] (Redlich and Coghlan JJA and T Forrest AJA).
76 You have faced four trials on these charges. The first trial, before her Honour Judge Fox, was a joint trial with your then co-accused Patrick Formosa which commenced on 7 November 2018, some 28 months after your arrest and interview. On 23 November 2018, the 10th day of that trial, the jury was discharged from giving a verdict in your case on account of a successful no case submission made the previous day on Formosa’s behalf. A final directions hearing was listed for 6 June 2019, with a new trial date of 5 August 2019.
77 The second trial commenced before me on 5 August 2019. The jury in that trial was discharged on 13 August 2019, effectively the 6th day of that trial, as a result of a question asked of a prosecution witness by your counsel to which an answer was given which was incurably prejudicial to you receiving a fair trial. The third trial commenced the next day, and that jury was discharged three days later because a juror was unable to continue serving on the jury.
78 The fourth trial, in which you were found guilty, commenced on 19 August 2019 and the verdict was delivered on 24 September 2019. The plea hearing was conducted on 9 October 2019 and since then several written submissions have been sought by the Court and filed by the prosecution and defence. My personal circumstances and the COVID-19 pandemic have since intervened to further delay sentencing you.
79 The law recognises ‘delay is more likely to be a major mitigatory factor where the prosecution or the justice system is responsible for the delay’.[34] As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[35]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[36]
[34] Judicial College of Victoria, Victorian Sentencing Manual, online, page 142 [7.5.3.2].
[35] (2013) 40 VR 436.
[36] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
80 So far as your rehabilitation during the period of delay is concerned, this is difficult to assess as you have been in custody on remand for this and other alleged offences for much of the time since your arrest. No submissions have been made on your behalf regarding any rehabilitation you have undergone during the period of delay.
81 So far as delay akin to punishment is concerned, you have had these matters hanging over you since you were arrested on 28 June 2016, a period of four years. Since the plea hearing, over eight months ago, you have had the very real prospect of a very significant sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you and your family significant stress and anxiety. I take this effect of delay into account in your favour.
82 By reason of the COVID-19 pandemic, your time out of cell and your ability to access programs has been restricted and face to face visits have been suspended. You do have the ability to contact your family by letter, telephone, email and video calls. I do not consider you are at any particular risk of contracting the virus, given you are a young and fit man with no pre-existing medical conditions. Nonetheless, I accept the effects of the COVID-19 pandemic will make the manner you serve this sentence more burdensome on you for the foreseeable future. I also accept, as the Victorian Court of Appeal has recently observed, the current situation ‘is causing stress and concern for prisoners and their families, as it is for every member of the community’.[37]
[37] Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA).
Application of Sentencing Principles
83 I have had regard to current sentencing practices in relation to the charge of trafficking in a commercial quantity of a drug of dependence in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym)[38] and the Victorian Court of Appeal decisions in Gregory (a Pseudonym) v The Queen,[39] Nguyen v The Queen[40] and DPP v Condo.[41] The Crown also referred me to a number of cases including, Sharbell v The Queen[42] and Ellis v The Queen (‘Ellis’),[43] regarding current sentencing practices in relation to these offences.[44] In Ellis the Court assayed a number of cases dealing with commercial trafficking in 1,4-BD.[45] Since the plea hearing, the Court of Appeal has delivered relevant judgments in Arici v The Queen[46] and DPP v Fatho,[47] to which I have also had regard.
[38] DPP v Dalgliesh(a Pseudonym) (2017) 262 CLR 482.
[39] Gregory v The Queen (2017) 268 A Crim R 1 (‘Gregory’).
[40] Nguyen v The Queen [2019] VSCA 184.
[41] [2019] VSCA 181, [20].
[42] [2018] VSCA 324.
[43] [2018] VSCA 221.
[44] In addition to Sharbell and Ellis, the prosecution referred me to DPP v Webb [2015] VCC 171 (Judge Quin); DPP v Khalil [2016] VCC 764 (Judge Quin); DPP v Donaldson [2016] VCC 1692 (Judge Hogan), all decided before the judgment in Gregory was delivered, and DPP v Rheinberger [2019] VCC 1152 (Judge Tinney).
[45] Ibid [29].
[46] [2019] VSCA 228 (Beach and Weinberg JJA).
[47] [2019] VSCA 311 (Maxwell P, Priest and Beach JJA).
84 It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from these and other comparable cases, I have sought to do so in your case.
85 So far as parity is concerned, I have had particular regard to the sentence imposed on you co-offender Khaled Moustafa by the Court of Appeal as a result of a successful appeal against sentence by the Director of Public Prosecutions.[48] Moustafa was re-sentenced to 8 years’ imprisonment on a rolled-up charge of trafficking in a commercial quantity of a drug of dependence relating to 8,865 kgs of 1,4-BD. 3,683 kgs of that quantity involved the same drugs the subject of your Charge 3.[49]
[48] DPP v Moustafa [2018] VSCA 331R.
[49] Moustafa was sentenced on the basis 2,026 kgs of 1,4-BD were located at the Flemington property (Moustafa [14]); whereas, you are being sentenced on the basis 2,626 kgs of 1,4-BD were seized at that location. See above fn 4.
86 Moustafa pleaded guilty to the charges he faced which was considered ‘an important mitigating factor’. He also received a ‘very significant reduction in [his] sentence’ or a ‘substantial discount’ on account of the assistance he provided to police, and in undertaking to give evidence against you at your trial. The sentencing judge at first instance noted the ‘high’ value of this assistance which ‘put his safety at risk’.
87 Moustafa also had three years and one month ‘dead time’ which needed to be taken into consideration in a broad way. His role ‘in the operation’ was described by the sentencing judge as ‘to provide assistance to [you] with respect to the storage and transportation of 1,4-BD’. The sentencing judge observed: ‘[h]e played no role in importing, distilling or selling the drugs’. I note there is no evidence of sales in your case. Her Honour described Moustafa’s contribution to the offending as ‘limited, but very significant’. On the other side of the ledger, Moustafa had a prior conviction for trafficking cannabis, and one for trafficking in methylamphetamine in 2015, which was committed while he was in custody in Port Phillip Prison.
88 I have also had regard to the sentences passed on Belal Allouche,[50] Omar Bchinnati,[51] and Munir Omer.[52] However, because of the nature of the offences they committed, their respective roles in the offending conduct the subject of the charges they faced, and their diverse personal circumstances, I did not gain much assistance from the sentences imposed on them on the issue of parity in this case.
[50] [2018] VCC 1038 (Judge Davis).
[51] [2018] VCC 372 (Judge Gwynn).
[52] [2018] VCC 1401 (Judge Gwynn).
89 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
90 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, so far as is possible, you are rehabilitated and reintegrated into society.
91 General deterrence is a very important sentencing consideration for the offences with which you are charged.[53] The offences are prevalent in the community and, as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.[54] Moreover, these are very serious offences.
[53] Nguyen v The Queen (2016) 311 FLR 289, 330 [139]–[140] (‘Nguyen’); Dawid v DPP [2013] VSCA 64 [83].
[54] Nguyen 331 [141].
92 Whilst just punishment, general deterrence and denunciation must be given primary consideration in my instinctive synthesis, I am of the view, in your case, specific deterrence and protection of the community need be given some weight. While you have no prior criminal history, I consider you lack insight into the seriousness of your offending conduct. I consider there is some risk of your re-offending.
93 Moreover, in the absence of any material bearing on your efforts at rehabilitation since committing these offences, I can only adopt a cautious approach to your prospects of rehabilitation which, at best, I discern to be good.
94 So far as the application of the totality principle is concerned, as I said earlier, I consider these offences form connected parts of an overall drug trafficking venture and, accordingly, there is a fair degree of overlap between the discrete offences. This will be reflected in the sentences I impose and the orders for cumulation I make. This will also feed into the non-parole period I fix. I must also be careful to avoid imposing a crushing sentence on you.
95 Trafficking in a drug of dependence in not less than the commercial quantity is a ‘drug offence’ under paragraph (a)(ii) of clause 4 of Schedule 1 of the SA. Since you will be convicted and sentenced to a term of imprisonment on Charge 1 you are a ‘serious drug offender’ and you fall to be sentenced as a ‘serious offender’ on Charges 2 and 3.
96 Accordingly, I must regard protection of the community from you as the principle sentencing purpose for which the sentences on those charges are imposed. The Crown did not submit I should impose a disproportionate sentence in order to achieve that purpose. Moreover, unless I otherwise direct, the sentences I impose on Charges 2 and 3 must be served cumulatively on all other sentences I impose on you in this case. In your case Charge 2 will be the base sentence, but I will order considerable concurrency in respect of the sentence I impose on Charge 3.
97 Moreover, trafficking in a drug of dependence in not less than the commercial quantity is a ‘category 2 offence’ as defined in s 3 of the SA. Accordingly, in the circumstances of your case, I must sentence you to terms of imprisonment to be immediately served on all charges pursuant to s 5(2H) of the SA. In any event, I consider sentences of imprisonment to be immediately served are the only sentences that would appropriately achieve the purposes for which those sentences are imposed.[55] Your counsel properly accepted this was so.
[55] See Sentencing Act 1991 s. 5(4).
Stand up Mr Obian
On the charge of trafficking in a drug of dependence in not less than a commercial quantity (Charge 1) you will be convicted and sentenced to imprisonment for 5 years.
On the charge of trafficking in a drug of dependence in not less than a commercial quantity (Charge 2) you will be convicted and sentenced to imprisonment for 15 years and 10 months.
On the charge of trafficking in a drug of dependence in not less than a commercial quantity (Charge 3) you will be convicted and sentenced to imprisonment for 8 years.
I order 1 year of the sentence imposed on Charge 1 and 1 year of the sentence imposed on Charge 3 be served cumulatively with the sentence imposed on Charge 2 and on each other, making a total effective sentence of 17 years’ and 10 months’ imprisonment.
I order you serve a minimum of 12 years and 10 months’ imprisonment before becoming eligible for parole.
I declare 609 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
On Charges 2 and 3 I direct the fact you have been sentenced as a serious offender on those charges be entered in the records of the Court.
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