Director of Public Prosecutions v Rohen
[2022] VCC 1403
•24 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-01280
| THE DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| JACOB ROHEN |
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JUDGE: | His Honour Judge Bourke |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 24 August 2022 |
CASE MAY BE CITED AS: | DPP v Rohen |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1403 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
For the Commonwealth | Ms C. Nicholson | |
For the Accused | Ms S. Tricarico |
HIS HONOUR:
1Jacob Rohen, you are to be sentenced for one charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, cocaine. That is an offence under ss11.1 and 307.5(1) of the
Commonwealth Criminal Code. The maximum sentence is life imprisonment.2When interviewed by police on 12 May 2017 you made some but limited admissions and otherwise exercised your right to silence. You did not and do not admit the offence.
3Ultimately you were presented for trial before me in May of this year. Your co‑accused, Charbel Kanati, was charged with the same offence; but not complicit with you. On 7 June that jury convicted you and acquitted Kanati. The Crown case had alleged activity by both of you contributing in the same period to the same criminal enterprise, but not acting throughout together.
4At your plea hearing which ran on 8 August Mr Saunders, who appeared with Ms Nicholson for the Crown, provided written submissions on sentence and a schedule of so called comparative sentences. Mr Edney, for you, tendered a forensic psychological report by Naomi Cameron dated 20 July 2022, letters of character reference including by your partner, Alishan Yildiz and medical summaries related to her and to you. Mr Edney also provided a written plea document.
5My summary of the circumstances of your offending is informed by and seeks to be consistent with the jury verdict against you; and also to apply principles stated in The Queen v Storey and like cases on the finding of fact for sentence. I have considered the written and oral submissions of counsel. At the plea there was particular focus upon what is your proven role in the offending, bearing in mind how the Crown case was put to the jury.
6On 30 April 2017 a consignment of five Xerox printers arrived at Melbourne by air freight from Mexico. Examination revealed that it secreted blocks of cocaine weighing approximately 22.4 kilograms at a pure weight of 15.5 kilograms. The Australian Federal Police deconstructed and then reconstructed the boxes, substituting an inert substance. There was a controlled delivery to a business named Overall Auto Care in Coburg North. You had an association with that business and its owner.
7When the controlled delivery was made there, by Australian Federal Police undercover operatives, you were present and assisted in the receipt and management of the boxes off the truck. This was on 8 May. Whilst you were there boxes were transferred by forklift onto a skip and driven away. It is not certain what total role, physically, you played in the movement of it onto the skip. There was AFP surveillance evidence, evidence of the AFP undercover operatives and of the proprietor of Overall Auto Care who, it can be seen on surveillance film, was at one point driving the forklift (albeit prior to its use to place the consignment onto the skip); it should be said having gone close by to obtain it from another business.
8I find that you were involved in the enterprise first in the role of accepting the delivery and assisting in its placement onto the skip. That enterprise, between
8 and 10 May, was, further, the movement, placement and secretion of the consignment to a point at which it came to be delivered to a warehouse in Airport West. There was clearly concern on the part of the prominent players about both surveillance and the need to maintain possession for delivery on to distribution in the drug network.9Your role, consistent with the jury verdict and where necessary to my satisfaction beyond reasonable doubt was as follows.
1. You received and assisted in the unloading and then reloading of the consignment onto the skip to be taken away as I have described.
2. On 9 May between about 4.30 and 5 pm you hired a Budget removals truck in Campbellfield. It left there driven by your partner and followed by you. About one hour later that was observed at a vacant yard in Randor Street, Campbellfield. Inside the yard the consignment was taken from the skip and loaded into the Budget truck. It was taken to and stored overnight at Kanati's home in Coburg.
3. On the following day you allowed use of your BMW motor vehicle to others. That car was used to escort the transfer of the consignment, now loaded into a Kia van, to an area in Airport West. This was between about 5 to 5.30 and about 6 pm. Between 6.30 and 7 pm others unloaded the consignment at an Airport West warehouse situated not far away. Those became aware of electronic surveillance and left. You were arrested on 12 May, still associated with the Budget truck which, I accept, was being used to move furniture from your Coburg home.
10In giving the assistance I have described you had the requisite state of mind or knowledge. You took and had possession of the consignment at
Overall Auto Care on 8 May. At that time you meant to possess a substance inside other than just the printers. Further, as to what that was supposed or believed by you to be, you were at least reckless about it being a border controlled drug. I would find, in the circumstances proven, that you believed it to be a border controlled drug. I do not find beyond reasonable doubt that you resumed possession, for example, on 9 May at the Randor Street yard. I do not so find beyond reasonable doubt that you were driving the Budget truck or otherwise directly involved in the transfer of the consignment from the skip there into the Budget truck and the transfer to Kanati's Coburg home. This was a particular subject of submission and exchange with counsel on your plea. I do not exclude the reasonable possibility, although unlikely, that your palm print found on part of the consignment was caused in the circumstances (both known and unknown) of your management of the consignment at Overall Auto Care on 8 May rather than at the Randor Street yard on 9 May. I do not find beyond reasonable doubt that you were present and driving your BMW in its escort of the consignment to Airport West on the following evening. It is conceded that you were not.11However, your assistance to the enterprise was substantial and important to its aims. Two others, John Tambakakis and Danny Awad have been sentenced for the same offence arising out of the same criminal enterprise. They both received sentences of 15 years with a minimum term of 10 years. I see them as more senior players, as higher in the entrepreneurial hierarchy. This was not challenged. The pure weight of the drug was, as I have stated, about
15.5 kilograms. That is more than seven times over the legislated commercial quantity, a threshold of 2 kilograms. Evidence at trial estimated the wholesale value as between $3,920,000 and $5,376,000, the so called street value between $9,327,600 and $12,436,800.12It cannot be argued but that this was a major drug importation and a sophisticated operation. Its aim was very high profit to the entrepreneurs. Your motive must be seen to be financial gain. I do not attempt to estimate that.
13You are a 41 year old man of Lebanese heritage presently awaiting this sentence in remand custody. That has been since verdict on 7 June. You were remanded after verdict. You had earlier been in remand after charge and before being granted bail.
14You are the eldest surviving child of 10. Five of your siblings, including your twin brother, were born with cerebral palsy. Two are deceased. A younger brother died by drowning on a construction site when you were six. You were required to take up a parenting and caring role within the family when young. Your father was strict and strictly religious. He was violent to your mother. You remain close to her. Your twin brother cannot converse or walk. He is in palliative care. You are disaffected from your father. I find that your upbringing was particularly hard, demanding and also traumatic.
15Schooling was not successful and you left at Year 9. Employment has been sporadic, with jobs in hospitality, telemarketing, security and traffic control. You last worked in 2021.
16Your first marriage lasted 11 months. You have a 17 year old daughter. Your ex‑wife and daughter live in Lebanon. You have been in a serious positive relationship with Alishan Yildiz since 2015. She remains supportive of you. Alishan Yildiz suffers from an auto-immune disorder and you have been, when not on remand, a significant support to her. Her tendered letter describes this.
17As to your own health, you were diagnosed with schizophrenia in 2014 and are prescribed the antipsychotic medication Seroquel, Valium and medication for depression. Your psychotic condition seems to be controlled, but symptoms have persisted. There have been no psychiatric admissions. You have also suffered from long term drug dependence, I would accept that at least partly in response to the difficulties of your early life. You began using cannabis in teenage, progressing to drugs such amphetamine, methylamphetamine and ecstasy from age 16 or 17. After being bailed in this matter in 2019 and seeing a drug and alcohol counsellor your drug use has varied, but it seems more controlled. However, you have not been wholly abstinent.
18Your criminal record states a number of court appearances in both Victoria and New South Wales between July 1999 (when you were 18) and December 2019. Drug and driving offences and offences of dishonesty feature most. I bear in mind some duplication in the record, for example, given breach of community or non-custodial sentences.
19This offending before me is markedly more serious.
20Self-evidently and as my earlier description makes clear, it is very serious. This was a major criminal enterprise and attempt at entering the chain of drug supply into the community. Your role was important. The expected profit was high particularly for the main entrepreneurs. You have a significant and relevant criminal history, albeit for much less serious offending. There is a very high maximum sentence. My sentence must reflect considerations and purposes of your moral culpability, deterrence, condemnation of the offending and proportionate punishment of it. General deterrence, directed at protection of the community, is a particularly important sentencing purpose. That the sentence be one of substantially long imprisonment is inevitable.
21I take into account moderating factors that go to reduce the length of sentence compared to what the objectively seen serious circumstances otherwise require. They include the following.
(1). Your personal history and circumstances, including the dysfunction and impact of your upbringing; and also your mental health condition.
(2). Consideration of hardship to others is permitted under s16A of the Commonwealth Crimes Act beyond that allowed under Victorian sentencing law. Mr Saunders helpfully raised this at the start of the plea. Your mother and your family will suffer the loss of your support. That family has been badly afflicted by both serious illness and tragedy. Further, your partner suffers a very serious chronic auto-immune condition which affects her life in many ways. Her tendered letter, which sits consistently with her general practitioner's medical summary, describes a broad range of debilitating, painful symptoms which affect her in what appears a very considerable way. She has been heavily dependent on you in many functional aspects of her life when the illness flares. I accept that her adjustment during your remand periods has been difficult. That there will be a high level of future hardship and also that this impacts emotionally upon you in custody. Allowed the full measure of hardship to others as conceded by the Crown, I find it a significant moderating factor.
(3). There has been long delay in the proceeding, measured by the fact of over five years since your arrest and interview. You were not charged until a later part of the proceeding, after committal of co-offenders. I accept that the period has been one of anxiety and stress, likely made worse by knowledge of your family and personal obligations. Of course, your decision to engage in the offending was also made in the circumstance of that.
(4). That decision (and the gamble of gain against risk you have taken) and that you have prior convictions speaks against high confidence in rehabilitation. That you ran your trial and do not admit the offending means no aggravation or increase to sentence. It can be said that lack of remorse to some extent bears upon an assessment of rehabilitation prospects. However, I do not discount your rehabilitation. You have family and personal support. Also, your support of those close to you gives some insight into a fundamental decency. I do not seek to sentence you in a way to crush your hopes of rehabilitation. The combination of these moderating factors go to reduce your sentence. This should be reflected in the head and in the minimum term. However, I also bear in mind the need to impose a sentence proportionate to a very serious crime and to the need to meet sentencing purposes such as general deterrence.
22I have considered the comparative sentencing cases. I bear in mind the need also to sentence individually to your case. I have been provided and have considered the sentencing reasons in the cases of Tambakakis and Awad. You should be given a lesser sentence than that imposed upon them, but there should be some just reference to it.
23Having considered what I see to be the relevant matters I sentence you as follows.
24On one charge of attempt to possess a commercial quantity of an unlawfully imported border controlled drug you are sentenced to 10 years' imprisonment. I set a minimum term of six and a half years before eligibility for parole. Under s18 of the Victorian Sentencing Act which I understand is taken up by the Commonwealth Act I declare 488 days of pre-sentence detention.
25Are there any other matters I need to state, Ms Nicholson?
26MS NICHOLSON: No, Your Honour.
27HIS HONOUR: All right. Thank you. I stand down until 1.30, I think it is. Yes. All right. Thank you for your assistance today and both of you in a way in the trial. Thank you.
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