Director of Public Prosecutions v Rafiq
[2022] VCC 1625
•27 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-20-01235
Indictment No. K13174119
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED RAFIQ |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 2 August. 2022 | |
DATE OF SENTENCE: | 27 September 2022 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Rafiq | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1625 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of trafficking in a drug of dependence – three charges of possession of drugs of dependence – pleas of guilty – uplifted summary matters – one charge of driving when unlicensed and one charge of driving an unregistered vehicle – pleas of guilty
Legislation Cited: Drugs Poisons and Controlled Substances Act 1981, s71AC(1), s73(1) and s73; Road Safety Act 1986, s18(1)(a) and s7(1)(a); Sentencing Act 1991 (Vic), s3(1).
Cases Cited:Re Appln for Bail by Rafiq [2020] VSC 408; Director of Public Prosecutions v Bourke [2020] VSC 130; Worboyes v R [2021] VSCA 169; Zarghami v R [2020] VSCA 74; Phillips v R [2012] VSCA 140; Dao v R; Thai Tran v R [2014] VSCA 93; Zarghami v R [2020] VSCA 74.
Sentence: Total effective sentence of two years and three months' imprisonment; non-parole period of one year and six months; 408 days of pre-sentence detention reckoned as time already served under this sentence; various fines; disposal order; 6AAA declaration (Charge 1) – four years and six months' imprisonment with a non-parole period of two years and four months' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr W. Barker | Giorgianni & Liang Lawyers |
HIS HONOUR:
1Mohammed Rafiq, on 2 August 2022 you pleaded guilty to the following charges on Indictment No.K13174119.1:
Charge 1 – that you, at Thomastown in Victoria, on 9 December 2019, trafficked in a drug of dependence, namely cocaine.
Particulars ꟷ 487.8-gram block, located in the vehicle.
Such offence is contrary to s71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 15 years' imprisonment.
Charge 2 ꟷ that you, at Thomastown in Victoria, on 9 December 2019, possessed a drug of dependence, namely, cocaine.
Particulars ꟷ 1.0-gram bag located in a pocket.
Such offence is contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of one year imprisonment or 30 penalty units.
Charge 3 – that you, at Thomastown in Victoria, on 9 December 2019, possessed drugs of dependence, namely, Testosterone, Drostanolone and Trenbolone.
Note that Charge 3 is a rolled-up charge.
Such offence is contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of one year imprisonment or 30 penalty units.
Charge 4 ꟷ that you, at Thomastown in Victoria, on 9 December 2019, possessed a drug of dependence, namely cannabis.
Such offence is contrary to s73 of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of five penalty units.
2Two summary charges were transferred to this court pursuant to s145 of the Criminal Procedure Act 2009. On 2 August 2022 you agreed to have these matters heard before this court and pleaded guilty to these uplifted charges:
Charge 6 – that you, at Thomastown in Victoria, on 9 December 2019, did drive a motor vehicle on a highway, namely, Dalton Road, without being the holder of a driver's licence or permit authorising you to drive such motor vehicle, and without being exempt from holding such licence or permit under the Regulations.
Such offence is contrary to s18(1)(a) of the Road Safety Act 1986 and carries a maximum penalty of six months' imprisonment or 60 penalty units.
Charge 7 – that you, at Thomastown in Victoria, on 9 December 2019, did drive a motor vehicle, such motor vehicle not being registered as required by Part 2 of the Road Safety Act 1986, and not exempt from registration under the Regulations.
Such offence is contrary to s7(1)(a) and carries a maximum penalty of 25 penalty units.
The circumstances of the offending
3Counsel for the prosecution tendered, initially, a document headed 'Summary of Prosecution Opening upon Plea' dated 9 May 2022 (Exhibit 1). I was informed by your counsel that you agree with the contents of such document.
4In particular, I note the following important matters:
· You are presently 31 years old, having been born in July 1991. At the time of the offending you were 28 years of age.
· On 9 December 2019, when police were performing driving duties in the Whittlesea police service area, they observed you driving a blue-coloured BMW sedan ('the blue BMW').
· The police conducted a check on the registration of the blue BMW, which revealed that the registration was suspended, after which the police intercepted the blue BMW driven by you.
· When requested to produce your driver's licence, you stated that you were from Sydney and that you had lost your wallet, and you showed police a screenshot from your Apple iPhone, purporting it to be a payment in relation to the vehicle's registration.
· Enquiries confirmed that you were not licensed to drive a motor vehicle (Summary Charge 6 – unlicensed driving) and that the blue BMW you were driving was not registered (Summary Charge 7 – driving an unregistered vehicle).
· You were arrested in relation to an unrelated matter, and ultimately police informed you that they would be searching the blue BMW pursuant to s82 of the Drugs, Poisons and Controlled Substances Act 1981, and queried you if there were drugs or weapons in the car, to which you responded, 'No'.
· You did admit, at that stage, that there were two further mobile phones within the blue BMW, in addition to the Apple iPhone that you had earlier shown police.
· Police then searched the blue BMW and the following items were located:
In the passenger-side door
ꟷ an Optus ZTE mobile phone;
ꟷ a Samsung mobile phone.
On the rear passenger seat
ꟷ a black Everlast bag, which contained:
ꟷ various items of clothing;
ꟷ a small vial labelled 'Masteron 100 Drostanolone Propionate 10ml';
ꟷ a small vial labelled 'Tren Acetate 100 Trenbolone Acetate 10ml';
ꟷ a small vial labelled 'Sustanon 250 Milti-ester Testosterone 10ml';
ꟷ a white Nike shoe box which contained a block of powder-like substance sealed in a bag.
· When queried about what was in the vials you informed police they contained steroids for personal use.
· When the police continued searching the Nike shoebox there was located the following items:
ꟷnumerous empty Ziploc bags;
ꟷa small amount of green vegetable matter contained in a separate Ziploc bag.
· When police queried you in relation to the white block of powder you denied that such contained cocaine and that you did not know what it was or where the block had come from.
· Police took a series of photographs of the blue BMW and the various items, which have been described, placed you under arrest and transported you to the Mill Park police station.
· At the Mill Park police station you underwent a search by police, who located a small Ziploc bag containing a white powder-like substance inside the right side of your pants pocket.
· On 20 January 2020 police transported three steroid vials, the white block of powder and the small Ziploc bag located on your person, to the Victoria Police Forensic Services Centre for analysis.
· A scientist at the Victoria Police Forensic Services Centre analysed the various items seized and expressed the following opinions:
ꟷthe vial of liquid labelled Masteron 100 contained Testosterone and Drostanolone with a net quantity of 7.4 grams (Charge 3 – possession of a drug of dependence (Testosterone and Drostanolone));
ꟷthe vial of liquid labelled Tren Acetate 100 contained Testosterone and Trenbolone with a net quantity of 8.1 grams (Charge 3 – possession of a drug of dependence (Testosterone and Trenbolone));
ꟷthe vial of liquid labelled Sustanon 250 contained Testosterone with a net quantity of 6.7 grams (Charge 3 – possession of a drug of dependence (Testosterone));
ꟷthe pale yellow powder contained cocaine in the amount of 1.0 gram, with a purity of 10 per cent, and therefore containing 0.1 grams of pure cocaine (Charge 2 – possession of a drug of dependence (cocaine));
ꟷthe block of compressed pale yellow powder contained cocaine in the amount of 487.8 grams with a purity of 9 per cent, and therefore containing 43.9 grams of pure cocaine (Charge 1 – trafficking in a drug of dependence (cocaine));
ꟷthe green vegetable matter was found to be cannabis, weighing a total of 3.2 grams (Charge 4 – possession of a drug of dependence (cannabis)).
· It was alleged that you possessed the block of cocaine for the purposes of sale and therefore trafficked in a drug of dependence. The Optus ZTE mobile phone was analysed and was found to contain information relating to, among other things, text messages sent and received by you on WhatsApp. In particular, analysis of the Optus ZTE mobile phone revealed the following text messages:
ꟷon 26 November 2019 you received a picture depicting a white block of powder-like substance on a set of scales;
ꟷon 27 November 2019 you sent a picture of the white block of powder‑like substance to Moe on WhatsApp, and then discussed the price, quantity and whether you trusted the source;
ꟷon 30 November 2019 you sent a picture of the white block of powder‑like substance on a set of scales to a contact via WhatsApp;
ꟷon 3 December 2019 you discussed with a contact name 'Khan', you provided a 'quarter', and discussed 'cutting' 22 grams of a substance;
ꟷon 4 December 2019, you sent a picture of a brown rock-like substance on a set of scales to Moe via WhatsApp.
5In Exhibit 1 counsel for the prosecution sets out a chronology of the various events which have occurred since your arrest on 9 December 2019. I note the following important events:
· On 9 December 2019 you were arrested, interviewed and remanded in custody.
· On 20 May 2020 you were sentenced to 90 days' imprisonment at the Sunshine Magistrates' Court (time served) for unrelated matters.
· On 22 May 2020 a bail application was adjourned part‑heard and ultimately refused on 2 June 2020.
· On 2 July 2020 a bail application at the Supreme Court was granted.
(See: Re Appln for Bail by Rafiq [2020] VSC 408).
· On 4 September 2020, there was a committal hearing, at which time you were committed to a trial and trial bail granted.
· On 18 and 25 October 2021 you did not appear at the directions hearing and a warrant was issued, causing you to be arrested on 29 October 2021, with bail extended in relation to this matter, but remanded on other matters allegedly committed when you were on bail.
·
On 20 December 2021 application to revoke bail was granted. On
23 March 2022 you were arraigned and pleaded guilty to the subject indictable offences.
6
At the date of the plea you had served 352 days of pre-sentence detention, taking into account the sentence imposed by the Sunshine Magistrates' Court on
20 May 2020 (that is, 90 days' imprisonment).
7Counsel for the prosecution also applied for a Disposal Order in relation to disposal of the drugs, which was not opposed.
Your criminal record
8Counsel for the prosecution tendered the following documents:
(a) your criminal record dated 26 March 2022 (Exhibit 2); and
(b) your criminal record relating to previous convictions not contained within the Victoria Police LEAP database, such as VicRoads prior convictions (Exhibit 3).
9Most of the offences recorded consist of Magistrates' Court appearances, usually for driving-related matters. The one exception to that was that you were convicted for robbery, in company, in New South Wales and in July 2015 were sentenced by the District Court of New South Wales to a term of imprisonment of four years and nine months, with a non-parole period of two years and nine months.
10I should also add that there are previous convictions for possession of prohibited drugs.
11
On 1 November 2019, at the Liverpool Court in New South Wales, you were convicted of driving an unlicensed vehicle and fined $1,500, and were disqualified from driving for six months, commencing on 1 November 2019. Also, on
13 May 2019at Fairfield Local Court, New South Wales, you were convicted of possessing a prohibited drug and fined $1,200.
Your personal circumstances and background
12Your counsel tendered the following documents:
(a) Outline of Plea Submissions on behalf of you, dated 1 August 2022 (Exhibit A);
(b) Urine testing results in documents dated 28 December 2019, 14 April 2020, 12 June 2020 and 27 July 2022 – all of which showed negative results in relation to amphetamines, buprenorphine, methamphetamines, cocaine, opiates, benzodiazepines, cannabinoids, ethanol and methadone (Exhibit B); and
(c) Letter from Mr Zelmai Fazal, dated 9 December 2021.
13Partly based on some of the documents which were tendered on your behalf, and partly based on various submissions made to me by your counsel, I note the following:
· You were born in Sydney to Nazra and Mohammed Rafiq, with both your parents being Fijian Indians, who had moved to Australia from Fiji in about 1985. Your father was of Arabic descent.
· You are the youngest of four siblings, having two brothers and one sister, namely:
ꟷ your sister, Fazila, who is 44, lives in Sydney, and is married with children and presently works as a bank manager;
ꟷyour brother, Humzan, who is 40, lives in Queensland, and is married with children and presently works as a truck driver;
ꟷ your brother, Jibram, who is 34, lives in Sydney, and is married with children and presently works as a cabinetmaker.
Although your brothers have used substances during their lives, but not to the extent that you have.
· Your father, who was an architect, died from a heart condition in 2001, aged 44. You were then 10 years old at the time.
· Your family was under extreme financial pressure after your father died, as your mother, up to that time, had never worked, and this put a strain on all members of the family. After your father's death, your mother worked long hours to support the family, leaving you with little parental supervision or guidance.
· You have had, and continue to have, a very good relationship with your mother, and would visit her often when living in Sydney, and will still speak to her every day since being in custody.
· In around 2016 you commenced a relationship with Yumna, who you eventually married in 2017. That relationship produced a daughter, Aleena, who is presently four years old. Your relationship with Yumna existed for about two years and ended in divorce in 2018. There is still contact between you and Yumna to facilitate you having time with your daughter.
· You completed Year 10, but left after that, being expelled for violence, and never went back to school. It was about this time you first experimented with drugs, first using cocaine at age 17, and within six months you had become a daily user of that drug.
· When you were about 19 you started using methylamphetamine and gradually became a daily user of that drug and ceased most of your cocaine use. You have used drugs most of your life ever since.
· You have had some employment experience in casual jobs, like construction, demolition, courier driving and hospitality.
·
You complied with the terms of your parole when released from prison in
New South Wales, during which time you underwent treatment for anger management.
· Since being presently incarcerated you are working in Port Phillip Prison as a billet and have undertaken six random urine tests while in custody, all of which have returned negative, while the sixth is still pending, having been undertaken very recently.
14Your counsel submitted that, when you are released, you will live in a private rental in Maribyrnong – the landlord being a friend who owns the apartment and will allow you to rent it (see Exhibit C). Furthermore, your counsel informed the court you have a friend who works with the railways, and there have been discussions between you and him that, upon your release from prison, there is the prospect of finding a job with the railways.
15Your counsel accepted that Charge 1 – traffic in a drug of dependence – is a serious offence, but submitted that, when considering the seriousness of the offence, the court must consider both the total mixed quantity (487.8 grams), as well as the total quantity of pure cocaine (43.9 grams).
16Reference was made to the decision of Mr Justice Weinberg in Re Appln for Bail by Rafiq,[1] wherein he states:
'It was not disputed before me that the charge of trafficking, even in this relatively small amount of cocaine, would be, if proved, a serious matter.'
[1][2020] VSC 408 at paragraph [11]
17Your counsel submitted that there was no evidence that you owned the cocaine and, therefore, no evidence that you were the primary benefactor of it; there was no evidence you had arranged for the sale or transfer; and the drug, itself, was of extremely low purity, with real questions as to the quality of it. Furthermore, it was unclear how much preparation or premeditation was involved in the offence.
18In relation to the remaining offences, it was submitted they are on the lower end of examples of such offences, and the various drugs being of small quantities and for personal use.
Matters in mitigation of your sentence
19It was submitted by your counsel that:
(a) Although the plea in relation to the indictable offences was not entered at the “earliest possible opportunity”, it was still an 'early and valuable' plea. Your counsel noted that your plea was entered after the contested committal and prior to trial.
Your counsel noted that there was minimal evidence against you that could have been relied on to prove your guilt and, in particular, no forensic evidence to link you with the cocaine. He notes that, while the phone records indicate you were engaged in the drug scene with other users, it does not show any conversation about this package of cocaine. Your counsel also noted that the blue BMW was not yours and, other than the drugs being in the car, there was little to link you with the drug.
In all of the circumstances, your counsel submitted that the plea of guilty was a 'very valuable plea'. In particular, it was submitted that the time and resources had been spared, which is particularly critical in light of the COVID-19 crisis. Reference was made to Director of Public Prosecutions v Bourke.[2]
(b) Furthermore, given the pleas were entered into during the advent of the pandemic, it was submitted that you should attract a further discount on your sentence, consistent with the principles enunciated in Worboyes v The Queen.[3]
(c) Furthermore, it was submitted that the plea of guilty was given in circumstances where you had an arguable defence, and such a situation is evidence of some remorse for the offending and your involvement in the drug lifestyle.
(d) It was also submitted that you had endured hardship, taking into account the burden of being in custody during the uncertainty of the COVID-19 pandemic. In this respect, the pandemic has resulted in the need for various lockdowns, limited visitation rights and the need to isolate when first arriving in prison.
[2][2020] VSC 130
[3][2021] VSCA 169
20Ultimately, your counsel conceded that a term of imprisonment is appropriate, but further submitted that any term of imprisonment should be followed by a Community Correction Order. In support of such submission, it was further submitted that:
(a) You have a limited criminal history, especially for drug-related offending, where your only prior offending relates to possession of drugs.
(b) You have seemingly responded well, in the short term, to rehabilitation during your parole in New South Wales, where you had to comply with conditions for about 18 months. Furthermore, your counsel points out that, until your recent remand, you had never been in breach of a bail condition.
(c) Your counsel accepted that there are 'obvious reasons for concern' in relation to your prospects for rehabilitation, with the most important factor being your longstanding substance addiction, for which you will be at risk of relapsing into. However, it was submitted that you had shown an ability to comply with stringent and difficult conditions of parole, which give the court some hope that you will comply with any orders imposed in this sentence.
(d) With a Community Correction Order the court has the ability to establish a longer period of time for you to receive such rehabilitation.
(e) It is submitted that such a sentence of a Community Correction Order is in the community's interest, as opposed to further time in an adult prison where the prospects may well be reduced for rehabilitation.
The response of the Prosecution
21Counsel for the prosecution referred to a document headed 'Prosecution Sentencing Submissions'. Seemingly, this document was not tendered by way of oversight and I will have the document marked as Exhibit 4.
22Noting, initially, that Charge 1 on the Indictment – the offence of trafficking in a drug of dependence ꟷ was the 'most serious offence', the following submissions were directed to that particular offence:
(a) In relation to the issue of 'objective gravity', it was submitted that the following considerations 'inform the seriousness':
ꟷ
although the weight was 487.8 grams in a mixture, analysis found that the actual cocaine within the block amounted to 43.9 grams pure
cocaine – that is to say, the purity is 9 per cent and the cocaine in question came to about 43 grams pure. It was also noted that the duration of offending was only a single day;
ꟷ the mode of trafficking being possession for sale;
ꟷ the level of sophistication being somewhat unsophisticated, with the cocaine being vacuum sealed and otherwise ready for sale;
ꟷ there being no evidence of enrichment – however, the very offending can only be committed in these circumstances for prospective financial gain.
Ultimately, it was submitted that, having regard to those considerations and, in particular, the weight of the cocaine, it was submitted that Charge 1 was a relatively-serious example of trafficking simpliciter.
(b)
Although you do not have a criminal history of trafficking in drugs of dependence, you do have a history, it was submitted, over a period of
10 years, involving a significant term of imprisonment imposed in 2015. It would appear that this sentence imposed on 3 July 2015 concluded on 4 January 2018, almost two years prior to the commission of the present offending.
(c) It was submitted that it is also the case, since being released on bail by the Supreme Court on 2 July 2020 (see the decision of Weinberg J), you have been charged with further alleged offending during that time (some of which involved violence), which led to your bail being revoked in this matter. These charges remain outstanding, for which you are remanded in custody.
23Counsel for the prosecution noted that the following matters are not in dispute:
(a) the plea of guilty entered into by you carries with it utilitarian benefit;
(b) the principles enunciated in Worboyes v The Queen[4] apply;
(c) that the plea of guilty carried with it some degree of remorse, however, it was submitted there was no evidence of remorse above and beyond the plea of guilty; and
(d) the custodial conditions due to COVID-19 are a relevant sentencing consideration.
[4]Op cit
24Ultimately, counsel for the prosecution submitted that the following sentencing considerations are of relevance: general deterrence, specific deterrence, denunciation, punishment and rehabilitation.
25Counsel for the prosecution submitted that - based upon the evidence and material before the court it was submitted that your prospects of rehabilitation are 'guarded'.
26In relation to current sentencing practices, counsel for the prosecution referred to the case of Zarghami v The Queen.[5] In that matter the offender was arrested in possession of 261.3 grams of pure cocaine, leaving the Crown Casino in a vehicle. He had offered to plead guilty to trafficking simpliciter (amongst other charges), but after his plea offer was rejected.
[5][2020] VSCA 74
27The offender in that matter was at the age of 23, had no prior criminal history, deeply regretted his offending, had an increased burden if imprisoned and had been drug and crime free for a significant period prior to sentencing, and had “quite good” prospects of rehabilitation.[6]
[6](Op cit) at paragraph [54]
28In resentencing the offender, and giving the offender the utilitarian benefit for his offer to plead guilty, the court imposed a sentence of three years' imprisonment on the charge of trafficking simpliciter.
29While counsel noted that there will be different subjective considerations relevant to each case, it was submitted the objective considerations of Zarghami are broadly compatible to the present case.
30It was ultimately submitted by counsel for the prosecution that the subject offending warrants the imposition of a term of imprisonment, and comprising a head sentence and a non-parole period.
Community Correction Order
31The court directed that you be assessed to determine your suitability for a Community Correction Order. Such assessment was undertaken by video link on 3 August 2022. The court was forwarded a copy of the assessment outcome report, dated 6 August 2022, authored by the assessing officer, Ms Mikaela Morphett.
32Ms Morphett noted that you had no prior involvement with the Victoria Community Correctional Services, but did have, what she described as, a 'moderate criminal history' dating back to 2010 in Parramatta, with an extensive driving-offence history.
33During the interview you informed Ms Morphett that you planned to reside in an apartment in Southbank (which would appear to be a different intended residence to the submission made by your counsel that you would be living in Maribyrnong) after your release from prison and hoped to obtain 'secure employment as a labourer in rail works'. In respect of community support, you informed Ms Morphett that your family all resided in New South Wales, but you do have an ex-partner, with a four-year-old daughter, who resides in Melbourne.
34Regarding other companions, you informed Ms Morphett that you have a wide support network in Melbourne, and it was also noted that you were previously associated with the Mongols Motorcycle Club, however, left the club in April 2021.
35When queried about the subject offending before the court, you told Ms Morphett that you 'got mixed up in the wrong crowd' and 'made mistakes'. She noted that you appeared to minimise your offending, stating 'people offered me to do thing[s] for money and I agreed to them'.
36She notes that you did express remorse for your offending, stating, 'I tried to make money the easy way but it was the hard way'.
37Ms Morphett notes that you presented as motivated to comply with the conditions of the Community Correction Order, stating your hopes to secure employment and engage in drug counselling upon release from custody.
38You were assessed to have a high risk of general reoffending.
39Ms Morphett recommended that, beyond the core conditions of the Community Correction Order, there be a condition relating to supervision, a condition relating to drug assessment and treatment, and a condition relating to offending behaviour programs.
Conclusion
40You have pleaded guilty of trafficking in a drug of dependence – namely cocaine ꟷ which is a serious offence, considering the maximum penalty is 15 years' imprisonment. As was stated by the Court of Appeal in Zarghami:[7]
'Drug trafficking is pernicious. It is a form of criminal offending which appears to be easy and offers substantial financial rewards. It seeks to derive financial gain from the sale of product to others which has the capacity to cause them serious physical and mental harm. It attacks the fabric of society and the framework of rules which forms the basis of a safe social environment within it.
These considerations mean that general deterrence must be given substantial weight in cases of this type.' [8]
[7]Op cit
[8](Op cit) at paragraphs [62]-[63]
41The Court of Appeal in Zarghami[9] commented that any sentence imposed must result in just punishment and express the condemnation of the court on behalf of the community in respect to offending of this kind.
[9]Op cit
42This offence deals with trafficking cocaine simpliciter.
43It is to be noted that, although the weight of the mixture containing the cocaine was 487.8 grams, which is not that far short of a commercial quantity, being 500 grams, the actual pure cocaine, on analysis, amounted to 43.9 grams – that is to say, the purity was about 10 per cent.
44I do accept, on the evidence before me, that there was seemingly a lack of sophistication, with the cocaine and mixture being vacuum sealed and otherwise ready for use. There was no particular evidence of enrichment, however, such offending can only be committed in circumstances for prospective financial gain. I also note that you have no prior convictions for trafficking of any type of drug.
45In mitigation, I do accept, although your plea clearly was not at the 'earliest available opportunity', it was, nonetheless, an 'early and valuable' plea. As your counsel pointed out, the evidence against you in relation to the trafficking offence contained no forensic evidence to link you with the cocaine – although, as pointed out by Appeal Justice Weinberg in your bail application on 2 July 2020:
'I was satisfied that the case against the applicant was by no means weak. It is true that, as matters stood, there was no forensic evidence linking him to the box containing the drugs. His fingerprints were not found on the box or any of the contents. I was told that a DNA analysis had been requested, but had not yet been conducted.
'On the other hand, the fact that the applicant had, in his pocket, even a minute quantity of cocaine, would tend to support the prosecution case that he was well-aware of the contents of the box found on the back seat. In addition, the drug trafficking related text messages found on his mobile phone added to the strength of the case against him.'[10]
Of course, at the time of the plea, there was still no forensic evidence linking you to the block containing the drug.
[10](Op cit) at paragraphs [12]-[13]
46Again, I refer to the decision of Zarghami,[11] wherein the Court of Appeal stated:
'22(d) The weight to be given to the utilitarian value of an offer to plead guilty may vary greatly depending upon such factors as acknowledgment of guilt in circumstances where there is an arguable defence; the length and complexity of the trial sought to be avoided; the benefit of avoiding stress, anxiety and trauma to victims, witnesses and affected members of the community; and the freeing up of scarce resources, for example the expertise of specialist forensic witnesses and other considerations. It follows that there can be no standard weight to be attributed to the utilitarian benefit of an offer to plead guilty but there must be some material weight in cases where a utilitarian benefit requires acknowledgment if only because of the underlying public interest considerations referred to above.'
(My emphasis.)
[11](Op cit) at paragraph [22(d)]
In the circumstances of this matter, I consider that you had an 'arguable defence' and, thus, it was a valuable plea of guilty, albeit late in time.
47Your counsel also submitted that a plea given in such circumstances is evidence of some remorse for the offending and your involvement in the drug lifestyle. I give some weight to such submission, but consider, ultimately, it was a forensic decision on your part after the contested committal and no doubt on the advice of those advising you.
48In this respect, I also note that the assessing officer for a Community Correction Order, Ms Morphett, considered that you did express remorse for your offending by stating, 'I tried to make money the easy way but it was the hard way'. Although this may be some evidence of remorse, I do not consider that you have shown any remorse in a material and significant way.
49I do accept that your plea of guilty was entered into during the advent of the pandemic and you should attract a further discount on your sentence, consistent with the principles enunciated in Worboyes.[12] Furthermore, I also accept that you have endured hardship since incarcerated, taking into account the burden of being in custody during the uncertainty of the COVID-19 pandemic. In this respect, the pandemic has resulted in the need for various lockdowns, limited visitation rights and the need to isolate when first arriving in prison.
[12]Op cit
50Consistent with the submission of counsel for the prosecution, I consider your prospects for rehabilitation to be 'guarded'. In this respect, it is noted that, following your bail application before Appeal Justice Weinberg on 2 July 2020, it is alleged that you have been involved in further offending – although these matters have yet to be determined.
51After a consideration of all of these matters, I have formed the view that it is appropriate to sentence you to a period of imprisonment with a non-parole period, rather than a combined sentence involving a Community Correction Order. I am not confident that if I do so order a Community Correction Order that you would abide by the terms given what occurred when you were bailed in July 2020.
52Counsel for the prosecution refer to the Court of Appeal decision of Zarghami[13] as reflective of current sentencing practices – albeit with a caveat that there will be different subjective considerations relevant to each case. Although there are some similarities with the subject offending in Zarghami,[14] it must be remembered that, in Zarghami,[15] the offender was arrested as he drove out of the Crown Casino car park as part of a routine licence check, and it was observed that his wallet was 'bulging with cash'.
[13]Op cit
[14]Op cit
[15]Op cit
53A search of the applicant in that matter, and his vehicle, revealed the following items: an Apple iPhone (containing a document within the Notes app listing multiple names with figures beside each name); a Blackberry mobile phone; USB stick containing a PDF instructional publication on the manufacture of methylamphetamine; a Rip Curl backpack containing cash and several Ziploc bags of white powder; and a total of $108,296.25 in cash, concealed in three different places.
54On balance, I consider the offending in Zarghami[16] to be more serious than that in the subject matter.
[16]Op cit
55In relation to the offending constituted by Charge 2 – that is, possessing cocaine in a 1-gram bag; possessing Testosterone, Drostanolone and Trembolone (all steroids) ꟷ and Charge 4 ꟷ possessing cannabis ꟷ I am satisfied that all of these offences involving prohibited substances were for personal use and are of small quantities. I intend to convict you of each of those offences and sentence you to various fines.
56In relation to the uplifted Charge 6 – that is driving a motor vehicle when unlicensed ꟷ and the uplifted Charge 7 – driving a motor vehicle not being registered – I intend to convict you of each of those offences and sentence you to fines.
57I do note that, on 1 November 2019, at the Liverpool Court in New South Wales, you were convicted of driving an unlicensed vehicle and seemingly fined $1,500, and disqualified from driving for six months. Given your prior convictions, I consider that specific deterrence is a relevant factor in coming to a sentence for driving unlicensed.
58I should add that I take into account, consistent with the concept of totality, that, on 20 May 2020 you were sentenced to 30 days' imprisonment at the Sunshine Magistrates' Court in relation to other unrelated matters.
59Please be upstanding - you do not have to stand up, Mr Rafiq:
(a) in relation to Charge 1 on the indictment that you trafficked in a drug of dependence, namely cocaine, you are convicted and sentenced to a period of imprisonment of two years and three months and I order that you serve a non-parole period of one year and six months;
(b) in relation to Charge 2 on the indictment, involving possession of a drug of dependence, namely cocaine, I convict you and sentence you to a fine of $300;
(c) in relation to Charge 3 on the indictment, involving possession of drugs of dependence, namely Testosterone, Drostanolone and Trenbolone, you are convicted and sentenced to a fine of $500;
(d) in relation to Charge 4 on the indictment, involving possession of a drug of dependence, namely cannabis, you are convicted and fined $150;
(e) in relation to the uplifted Charge 6, involving driving a vehicle when unlicensed, you are convicted and sentenced to a fine of $500;
(f) in relation to the uplifted Charge 7, that is driving a motor vehicle not registered, you are convicted and sentenced to a fine of $150;
(g) I declare that you have served up to, but not including this day, 408 days in pre-sentence detention, and that such period should be administratively deducted from the sentence ordered against you;
(h) I grant the application for the order of disposal of the various drugs of dependence;
(i) I declare that, save for your plea of guilty in relation to Charge 1, I would have ordered a period of imprisonment of four years and six months, with a non-parole period of two years and four months.
60Yes, thank you.
61MR O'TOOLE: As Your Honour pleases.
62COUNSEL: As Your Honour pleases.
63HIS HONOUR: Anything to raise about any of that?
64MR O'TOOLE: No.
65HIS HONOUR: Yes, very well. We'll adjourn sine die.
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