Director of Public Prosecutions v Rasimi
[2012] VCC 1464
•16 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-09-01543
Note: application for leave to appeal granted 27 May 2011 (S APCR 2010 0209)
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MILAT RASIMI |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 April | |
DATE OF SENTENCE: | 16 June 2010 | |
CASE MAY BE CITED AS: | DPP v Rasimi | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1464 | |
REASONS FOR SENTENCE
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Catchwords: 2 counts of trafficking in drugs of dependence – heroin and methylamphetamine – sentenced as intermediate dealer.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Plummer | Office of Public Prosecutions |
| For the Accused | Ms J. Caust | Lewenberb & Lewenberg |
HER HONOUR:
Introduction
1 Mr Rasimi, you have pleaded guilty to two charges of having, between 1 January and 30 April 2008, trafficked in drugs of dependence, namely heroin and methylamphetamine, the maximum for each charge is 15 years imprisonment.
Antecedents
2 You are 43 years of age and in about 1992 you migrated from the former Yugoslavia to join two brothers living in Australia. You have no prior appearances before a court. This is just one of a number of important sentencing considerations to which I have had regard.
The circumstances of the offending
3 The prosecution's opening (as amended) was read into transcript and tendered as the agreed statement of facts. I have read the depositional material and documents tendered which included the records of interview and an expanded chart for telephone intercept and surveillance material obtained during the relevant period. I have also viewed a booklet of photographs tendered by the prosecution along with the list that explains the images depicted in the photographs. I do not propose to repeat all of the matters outlined in the prosecution summary and accompanying materials.
4 In short, I was told that over a period of four months on an almost daily basis you trafficked in one or other of these drugs of dependence. Apparently between 17 January and 30 April 2008, police intercepted about 650 calls connected to the supply of drugs to which you were a party without being able to ascertain the identity of your suppliers.
5 The prosecution has conceded that the pattern of business disclosed by the material before me was consistent with you being an intermediate drug dealer, that is during this period, you supplied street dealers to whom I note you referred to as your own "crew" who on-sold the drugs to their customers.
6 As I have already noted in this period, telephone intercepts, surveillance and a listening device installed in a Mercedes Benz sedan registered to your wife and used predominantly by you to attend drug transactions with your customers, established that you were constantly in contact with customers and that you arranged and attended drug transactions. A motorcycle and another Mercedes motor vehicle were also used to pursue your drug trafficking activities.
7 Methylamphetamine appears to have been the main drug sold by you during this period. For instance, I was told that you sold methylamphetamine in lots or units of 3.5 grams with your customers often using codes to place their orders. The commercial quantity of methylamphetamine is 500 grams. In all, you supplied close to 500 grams of methylamphetamine at a price of between $500 and $600 per deal, a deal being 3.5 grams.
8 As it turns out, one of your crew was an undercover operative. I was told that she purchased methylamphetamine from you through an associate and subsequently at her request you sold directly to her. There were 11 meetings between 5 March and 30 April 2008 during which either you or an associate handed over drugs supplied by you. That on 10 March 2008, you interrogated this woman, asked her to prove that she was not working for the police by having sex with you or an associate and threatened to fine her and “fuck” her “up bad”, if she “fucked you over”, is just one indication of the lengths to which you were willing to go to protect a lucrative illegal operation.
9 I was told that later that day, you met this covert operative in your green Mercedes, at which time you were handed $1200 in return for two supposedly 3.5 gram deals of methylamphetamine which were produced in plastic bags taken from between your legs. I say “supposedly” because analysis of the drug produced on the 11 occasions on which the drug was supplied to the covert operative indicated that the actual quantity was often less than the deal quantity sought.
10 For example, according to the table summarising the transactions with the covert operative, between 5 March and 30 April 2008, you were paid a total of $31,000 for 61 purported deals. However during this period, the amount supplied was nearly 10 grams less of the drug than had each deal amounted to 3.5 grams. In the circumstances described, I have accepted the accuracy of the prosecution's submission that despite the weight differential, it is appropriate that you be sentenced on the basis of what you offered for sale, that is 213.5 grams of methylamphetamine of various approximate purities of 12, 14, and 16 per cent.
11 That on another occasion, you berated the covert operative because she failed to see you at least once each week and told her that to do "this business and make money", she could not be a user, both supports the prosecution submission that you were motivated by profit and that if in the past you did, as you recently reported, use heroin and amphetamines, the latter on an intermittent basis until your arrest in April 2008, drug use probably did not contribute to your offending.
12 As to the heroin sold, I was told that on 67 occasions you dealt in units of between 0.4 and 0.5 grams at a rate of $150 per deal or unit. According to the prosecution, a conservative estimate is that you trafficked a total of 25.6 grams including one gram in your possession for sale on your arrest. It was about eight and a half times the traffickable quantity of this drug.
13 Subject to my discussion in due course of your personal circumstances and mitigatory factors, allowing for the quantity of particularly the methylamphetamine trafficked over a four month period, the cash seized and the level of trafficking activity over a comparatively short period through a highly organised and significant profit-based business, I consider that these offences are properly categorised as more serious examples of the offence of trafficking.
14 However notwithstanding the likelihood that you established your business as a dealer prior to the first transaction relating to the charges before this Court, you are only sentenced today in respect to the quantities of drug trafficked and the criminal conduct for the period to which the indictment refers.
15 I was told that following your last sale to the cover operative, you were arrested at the Bunnings store car park in Cranbourne at which time you had the $6000 paid to you inside the front of your pants and you were carrying two mobile telephones. On this occasion you drove a dark blue Mercedes in which police also located a plastic bag containing the 1 gram of heroin to which I have already referred.
16 On executing a search warrant at your residence, police found digital scales, financial ledgers, three mobile phones, $64,780 in cash, and two television sets, the latter they suspected were proceeds of trafficking.
17 I have read the records of interview including those relating to your co-offenders, your brothers Sevdat and Ilat, who at the time lived with their respective families in the same suburb. Their involvement became apparent during the period over which you were under surveillance.
18 Clearly, despite the denials and posturing during the records of interview, at different levels you and your siblings either trafficked and/or were associated with receiving profits from illicit drug activities. For instance, I was told that a search of Sevdat’s home at that time revealed 45.8 grams of heroin, 0.3 grams of methylamphetamine, digital scales and $23,000 in cash. In October 2009, on one count of trafficking heroin and on one count of possession of methylamphetamine, he was sentenced by a Magistrate to 12 months imprisonment, six months of which was wholly suspended for two years. An order was also made for forfeiture of the cash and drugs. However on appeal he avoided an immediate custodial sentence and this brother was sentenced to 12 months imprisonment wholly suspended for two years.
19 The home of your younger brother, Ilat was also searched at which time police found $34,950 in cash hidden in a wardrobe in denominations of $50 and $100. Relevantly, seven of these notes were previously recorded as part of the $6000 paid by the covert operative when she purchased 42 grams of methylamphetamine from you on 24 April 2008. On 21 October 2009, on one charge of dealing with property suspected to be the proceeds of crime, apart from forfeiture of the cash, the Magistrate placed your brother Ilat on an adjourned undertaking to be of good behaviour for two years with a contribution of $10,000 to the Royal Children's Hospital fund payable within six months.
20 Accordingly notwithstanding the absence of antecedents, your respective activities indicate an insidious drug-related criminal culture within your immediate family group. As a consequence, I have placed less reliance on the two personal references submitted on your behalf, particularly that given by the President of the Australian Albanian Community Association who may have mistakenly believed that your lifestyle over the period of these offences had been achieved and supported through hard honest work.
21 As my discussion of the expert evidence revealed shortly, you have been assessed as an intelligent man. It was your right not to comment on any of the matters put to you during interviews conducted by police. Nevertheless from my reading of the records of interview, you were not cooperative and probably lied when you told police that the reason for attending Bunnings was to buy a pressure cleaner.
22 Notably it was common ground that the forfeiture and pecuniary penalty orders made today do not impact on this sentence.
Personal circumstances
23 I now turn to discuss your personal circumstances. Theses were articulated in the main through your counsel's submissions, the references to which I have referred in passing and medical reports. The first of these is a medical reported dated 1 December 2009. This exhibit included some clinical notes, a copy of a certificate supporting an application in March 2005 for a disability pension and medical reports and results received by your long standing treating general practitioner, Dr Mazzoni. His further report dated 14 April 2010 was also tendered. Lastly, there are reports from forensic and consultant psychologist, Mr McKinnon who assessed you on 26 November 2009 and from consultant psychiatrist, Dr Deacon, who assessed you on 15 April 2010. Relevantly, neither specialists appears to have had the benefit of any report from your treating general practitioner.
24 The medical evidence does indicate a range of current and ongoing health issues such as longstanding treatment for symptoms of depression and anxiety, maturity onset diabetes and a history of gastroesophageal reflux, all of which had been managed by your GP with medication, diet, exercise and appropriate sleeping postures. However since February 2006 you have also undergone extensive investigation into complaints of bilateral tinnitus and vertigo and more recently episodes of anterior chest pain, the causes of which have not been identified and for which you do not presently require formal treatment.
25 Nonetheless in sentencing you as invited by your counsel, I have had regard to the added burden you carry as prisoner suffering from a variety of health concerns, although I agree with the prosecution submission that any impact of the presence of these conditions of the sentence is limited. In any event, when I remanded you in custody to await sentence on 23 April, I directed that the medical material be made available to prison authorities to ensure adequate management of your medical needs. I propose to renew this direction today.
26 I was told that you were born in the former Republic of Macedonia of Albanian ethnic background. Your wife migrated to Australia in the 1990s and you now have three children aged from under one year to nine years old. Your wife supported you in Court along with her father and two of your brothers.
27 Quite apart from some factual differences between their reports, for example as to the soundness of your marriage at least during the first half of 2008, I noted some material discrepancies between the histories reported to the specialists and the matters to which your treating general practitioner referred in his reports. However, assuming for the moment the correctness of the general history reported by you, your parents separated when you were two years old and you have two brothers, two step-brothers and one step-sister. Your mother has since joined you and those of your siblings living in Australia.
28 I was told that you were brought up in impoverished conditions although you managed to complete Year 12 studies without also being able to afford to attend university. I expect that the deprivations suffered in your childhood, not to mention the discrimination to which you said you and your family were subjected because of your Albanian heritage, have left their mark. By your account, apart from some limited work in your father's restaurant in the years before you migrated to Australia, you were subjected to and experienced considerable physical and emotional trauma during a period of compulsory army service and subsequently following your detention by Serbian special forces along with other Albanians at the commencement of the Yugoslav wars.
29 After arriving in Australia, you apparently studied English for some months followed by periods working as a machine operator in a factory and for the Bosch company in Clayton. However during the mid-1990s, you returned to Macedonia where you met your wife. Apparently when you both returned to live in Australia, you worked as a chicken boner before you went back to Macedonia due to your mother's ill health. However, by 1998 you were again working in Australia manufacturing doors until 2001 when you claimed that your psychological condition deteriorated in response to the stress of news of more fighting in your home city.
30 According to your general practitioner, a disabling left ankle injury suffered in a motorbike accident in March 2004 precipitated an anxiety depressive illness, for the treatment of which over a number of years he prescribed anti-depressant medication and supportive counselling. Notably the certificates supplied by the general practitioner in 2005 in support of your application for a disability pension reported major depression leading to poor concentration, depressed moods and poor motivation.
31 By way of contrast, I note that more recently you gave the psychologist and the psychiatrist who assessed you in 2009 and 2010 respectively, a somewhat different account of the timing of and the reasons for the onset of symptoms of depression and anxiety. For instance, both these specialists appear to have been given to understand that your exposure to trauma in the years prior to you migrating to Australia and the fact that in 2001 your father and step-father were nearly killed during the war precipitated debilitating depressive symptoms such as severe insomnia, nightmares and flashbacks, for the treatment of which since 2001 your GP prescribed anti-depressant medication.
32 Even if I accept that you were truthful when you told Dr Deacon that you had not informed your GP about your background because you feared being targeted by Serbians in Australia, I am still unable to reconcile the three year discrepancy between the matters reported by these doctors and the GP’s report that he commenced treating you with anti-depressant medication for symptoms of depression and anxiety which he believes were precipitated by injuries suffered in a motorcycle accident in March 2004.
33 Judging from the account given to Dr Deacon, in late 2007 you commenced trafficking amphetamines after you met a person who sold amphetamines in a motorbike shop. Moreover, you led both this psychiatrist and the psychologist to believe that gambling had brought you to this sorry state of affairs and, according to Dr Deacon's report, you sold drugs to finance a gambling habit which had commenced after your motorbike accident and which had resulted in significant financial debt.
34 Notably the material before me indicates that during the period of surveillance and at the time of your arrest, despite your status as a disability pensioner you and your family were not obviously burdened by debt or deprived of material assets and comfort. Accordingly in the absence of evidence to corroborate this you have not satisfied me that problem gambling was a factor in this offending.
35 I note that both specialists have also mentioned some history of heroin use either to treat pain following your motorbike accident or to treat symptoms of tinnitus and depression, although despite Dr Deacon's reference to heroin dependency, neither specialist attributed your offending to either a heroin or an amphetamine habit.
36 So far as your mental health is concerned, it appears that you continue to be treated with anti-depressant medication as well as medication for insomnia although I could not find any explanation for what happened to the supportive of counselling your GP also said he originally prescribed from 2004.
37 Based on the history he received in 2009, Mr McKinnon diagnosed depressive mood disorder and generalised anxiety disorder. Although unlike Dr Deacon, who thought you were suffering from a major depressive order as well as chronic post-traumatic stress disorder for which you may benefit from referral to a consultant psychiatrist specialising in managing post-traumatic stress disorder, without more information Mr McKinnon was not prepared to formally diagnose this further order.
38 Putting to one side the cause or causes of this and allowing for your history of treatment for symptoms of depression and anxiety, these matters and some of your reported health concerns may explain the context in which this offending occurred without in any way excusing it or reducing the overall criminality involved in the commission of these offences.
Mitigatory factors
39 Before I deal with the final disposition of your sentence, I need to explain some of the matters raised in mitigation of this sentence. To begin with, I was told that you were at first charged with trafficking in a commercial quantity in a drug of dependence. This matter was listed for a contested committal hearing on 18 August 2009 at which time you offered and subsequently pleaded guilty to the charges. In these circumstances, the prosecution has accepted that your plea to these charges was entered at the earliest practicable opportunity. Accordingly you are entitled to a substantial sentencing discount because your plea has spared the community the cost and the witnesses the inconvenience of a contested trial.
40 Your plea is one indicator of a level of remorse. If accepted as genuine, your apology to the court and the shame and remorse you expressed to the specialists during their assessments could also evidence some level of remorse.
41 In this regard, I accept that you are probably very sorry for the predicament in which you have placed yourself and your immediate family. Although allowing for all of the circumstances in which this offending occurred, not to mention the involvement of your brothers, I have reservations about any real empathy with those who were exploited by you and about the genuineness of your repeated expressions of sorrow. Ultimately, you were driven by profit and as the material before me shows, you were manipulative and prepared to use intimidation and threats to keep members of your street “crew” in line.
42 In these circumstances, notwithstanding the absence of antecedence, I have approached your prospects of rehabilitation with some caution and, unlike Dr Deacon who did not have the benefit of all of the material to which I have referred, I was not satisfied that the risk of recidivism is low.
Sentencing considerations
43 Through your counsel you have acknowledged the appropriateness of an immediate custodial sentence. However, over the course of the plea hearing, you counsel sought to establish that based both on the circumstances of this case and the relevant sentencing snapshot statistics, your offending did not warrant a sentence at the higher end of the range of sentences imposed for trafficking in non-commercial quantities.
44 In constructing a sentence that I believe is just and which heeds relevant sentencing considerations, I have considered both the sentencing statistics to which your counsel referred at some length and, in particular, the bundle of comparative cases handed to the court by the prosecution, the latter indicating current sentencing practices on drug cases. Scrutiny of these cases reinforces the need to sentence you with regard to all of the factors peculiar to this particular plea and your circumstances.
45 Apart from calling for an immediate custodial sentence to reflect the seriousness of the offending involved, the prosecution called for a total effective sentence of between five and six years imprisonment with a non-parole period of between three and four years imprisonment. This sentencing range it submitted, I think correctly, was justified by the fact that over a four month period you regularly trafficked in particular methylamphetamine in a quantity just under the commercial quantity for this drug of dependence. At the time you were an intermediate drug dealer who dealt in large amounts of cash, when the opportunity presented, that is when the covert operative asked for more, the trafficking business you operated was able to increase the supply and you ran a highly organised business for profit.
46 Any sentence imposed today must strongly denounce your conduct as well as act to protect the wider community and deter you and others from distributing and profiting from illicit drugs and in doing so exploiting particularly the frailty of those who are addicted to or use illicit substances.
47 In sentencing you, I have also allowed for some level of cumulation to reflect the fact that the trafficking in heroin involved both a different drug and separate sales.
48 Please stand Mr Rasimi.
49 On one charge of trafficking in a drug of dependence, namely methylamphetamine, you are convicted and sentenced to four years and six months imprisonment. For the purpose of your sentence, I treat this as the head sentence.
50 On one charge of trafficking in a drug of dependence, namely heroin, you are convicted and sentenced to 18 months imprisonment.
51 I direct that six months of the sentence imposed on the second charge be served cumulatively on the sentence imposed on the first charge, that is the methylamphetamine charge. The sentences are otherwise concurrent. The total effective sentence is five years imprisonment and I direct that you serve a non-parole period of three years and four months imprisonment.
52 I was told that there are 27 days of pre-sentence detention prior to the pre-hearing. This plus your detention after you were remanded in custody on 23 April amounts to 82 days of pre-sentence detention. Accordingly, pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 82 days is to be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be recorded in the records of the court.
53 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty, a sentence of six years and eight months imprisonment with a non-parole period of four years and four months imprisonment would have been imposed.
54 At the plea hearing, the prosecution sought an order for the retention of the forensic sample. I have acceded to the prosecution's application and in doing so, I have taken into account the seriousness of the circumstances of the offending, the fact that the application was by consent and the interest of the community, that is the public, has in obtaining such a sample and I have signed that order.
55 Disposal, forfeiture and pecuniary penalty orders were also sought at the plea hearing and following some earlier debate, these were all made by consent. I have signed each order which includes the forfeiture order for, I think it is $70,980 in total. I have signed the order that was presented to the court with the total on it and a pecuniary order for $16,470.
56 Relevantly, you did not seek to persuade me that any part of the pecuniary penalty order related to benefits in excess of profits derived from the commission of these offences.
57 As I have already noted, your diagnosed mental and physical health problems require management and monitoring whilst in custody and for this reason, I direct that a copy of the medical material tendered to the court be given to the prison authority today, if it has not already been done as a result of the direction I made when you went into custody in April.
58 Counsel, you may want to confirm the accuracy of the amount of the forfeiture order. I will ask the associate to hand this order to you first, the forfeiture order. And the other orders of course are signed, are not in contention.
59 MR PLUMMER: Yes, Your Honour.
60 HER HONOUR: It does not have a total, does it?
61 MR PLUMMER: It doesn't, Your Honour.
62 HER HONOUR: No. I think that at the hearing that amount was put to me but I cannot confirm it. I have signed the order for the sums that are set out in that order and I think that is the best way of expressing it today without pretending that I have actually gone through the attachment and arrived at that amount. I have not and I can see neither of you have either.
63 MR PLUMMER: I have not, Your Honour.
64 HER HONOUR: As neither of you appeared at the last hearing, I am acting on the basis that the order as signed was consented to and stands. All right?
65 COUNSEL: Yes, Your Honour.
66 HER HONOUR: Now, the associate has the other orders as signed and they will be handed to you. Are there any other matters I need to address?
67 COUNSEL: No, Your Honour.
68 HER HONOUR: Remove the offender. Thank you for your assistance today, counsel.
69 COUNSEL: Thank you, Your Honour
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