Director of Public Prosecutions v Rukuni

[2018] VCC 14

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00992

DIRECTOR OF PUBLIC PROSECUTIONS

v

MANDIVAMBA RUKUNI

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2017
DATE OF SENTENCE:	25 January 2018
CASE MAY BE CITED AS:	DPP v Rukuni
MEDIUM NEUTRAL CITATION:	[2018] VCC 14

REASONS FOR SENTENCE
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Subject:        Import marketable quantity of a border controlled precursor substance
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:       2 years' imprisonment/12 month recognisance

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Barry
For the Accused	Mr J. Westmore

HIS HONOUR: 

1Mandivamba Rukuni, you have pleaded guilty to a charge of importing
a marketable quantity of a border controlled precursor substance, namely pseudoephedrine.  This is an offence contrary to sub-s.307.12(1) of the Criminal Code (Cth), for which the maximum penalty is 15 years' imprisonment. 

2As can be seen from the maximum penalty proscribed by the Parliament, this is a very serious offence.  However, for the reasons which will become clear,
I regard your offending as falling in the lower range for this kind of offence.

3In sentencing you for this Commonwealth offence, I am mindful of the fact that I must have regard to the provisions of Part 1B of the Crimes Act 1914 (Cth), which I shall hereafter refer to as "the Act".

4When you were arraigned, you admitted a prior conviction in this court on the 31 May 2011, of attempting to possess a marketable quantity of a border controlled drug, namely cocaine.  For that offence you were convicted and you were sentenced to a period of imprisonment of three years and one month and a non-parole period of 22 months was fixed.  That prior offence is very relevant in sentencing you on this occasion.  It is a similar offence and any sentence that I impose upon you must have proper regard to specific deterrence.

5The circumstances of your offending are contained in the summary of prosecution opening, which was tendered and marked as Exhibit A on the plea and it was read in open court by the prosecutor, Mr Barry.  It is not necessary that I here repeat that which is set out in writing in the prosecution summary, except in an abbreviated way.

6You and co-offender, Bryan Ndondo, were observed by police at premises in Carlton.  When those premises were searched, four envelopes addressed to different persons that had been mailed from Turkey, were found in a backpack that could be connected to you.  Each of the envelopes had been slit open and each contained a vacuum sealed sachet of an off-white powder, later tested and found to be pseudoephedrine, a pre-cursor chemical used in the production of methamphetamine.  The total weight of the powder found in the four envelopes was 30.7 grams, where a marketable quantity is 3.2 grams. 

7I accept that even though the amount of pseudoephedrine imported into this country by you, which is the subject of this charge, is more than ten times the threshold for a marketable quantity, the volume of the precursor imported was relatively small for this kind of offending.  Although you were initially charged with 18 offences where the volume was much larger, I must sentence you on the basis of a very small but valuable volume.  I was told the marketable value of the substance you imported was quite valuable, depending upon how it was packaged and marketed to the end user.

8The case against you is based around the content of the four envelopes which could be shown to be linked to you.  Your fingerprints were found on two of them.  Also there was evidence of surveillance of your movements and
a computer owned by you, contained evidence that it had been used to look up information about the various addresses shown on the envelopes.  The surveillance showed you and Ndondo visited two of the houses to which two of the envelopes were addressed and testing of the computer also showed that saved to it were two editions of a document entitled, "Secrets of Methamphetamine Manufacture".  Ndondo has not been brought to justice.

9I accept there is no evidence that you played any part in sending the envelopes containing the precursor from Turkey to Australia.  I accept there is no evidence that you had knowledge of the volume of the precursor in each envelope.  Your role was a small but critical part in the importation of this precursor substance into this country.  Your role was to collect the envelopes, which you did, along with Ndondo.  Although limited, your role was nevertheless an important one in the overall scheme of offending, which was probably instigated by others unknown to you.

10At all times in the commission of this offence, you knew that what you were doing was wrong and against the laws of this country.  That is especially so in this case, because you had previously been convicted and served a term of imprisonment for a very similar offence that related to an attempt to import cocaine.  In the previous matter for which you were convicted, your role was to collect a package from a post office and when you attempted to do so, you were arrested.  You obviously did not learn any lessons from your first conviction. 

11I accept Mr Westmore’s submission that the offence was relatively unsophisticated, so far as your involvement was concerned and all you stood to gain was the supply of some ice for self-use, but you embarked upon the commission of this offence in full knowledge that what you were doing was wrong and against the laws of this country.  You knew or ought to have known that the reason why the laws of this country prohibit the importation of substances used to manufacture drugs, is because of the untold harm that drugs cause to society generally.

12I must take into account the fact you have pleaded guilty and when you did so.  This matter resolved into a plea of guilty at trial on the 30 October 2017.  The period of offending covered by the charge is between 26 May 2014 and
5 August 2014.  You were not charged on summons until the 19 August 2015.  There was a contested committal on 8 June 2016 and a trial was listed but not reached in March 2017.  The matter was again listed for trial before me on the 30 October 2017, when it resolved into a plea.  The trial indictment contained 18 charges, one for each envelope ultimately found.  The plea proceeds on the basis of one rolled-up charge relating to the four envelopes which the evidence shows to be connected to you.

13Although your plea of guilty came late in the piece, it is nonetheless a valuable plea of guilty.  By pleading guilty, you have saved the time and cost of a trial and facilitated the course of justice and in my opinion, your plea is demonstrative of remorse on your part.  In arriving at an appropriate sentence, I have taken your plea of guilty into account and reduced the sentence which
I would have otherwise imposed upon you and this will be reflected in the sentence that I will shortly pass.

14Your counsel, Mr Westmore, relied upon the delay in bringing this matter to the court, which he argued should significantly mitigate the penalty.  He argued and I accept, this matter has been hanging over your head for a long time and the delay cannot in any way be attributable to fault on your part.  He also argued that you have used the delay well to get your life in order and to generally rehabilitate yourself and it would be unjust for the court to now impose
a sentence of imprisonment which would undo all that you have attempted to achieve.  I will return to the things that you have done since the commission of this offence later. 

15In passing sentence, I have taken the delay into account.  Importantly, I note that you have not committed any offence since the commission of this offence.  I also note there is no explanation for the delay by the prosecution, especially for the delay of a year, or thereabouts, between the execution of the search warrant and the charges being laid by summons on 19 August 2015.  That said, it is the experience of the courts, this kind of offending can take considerable time to investigate and document, because the offending charged is usually
a part of a larger overall scheme of offending, as here.

16Mr Westmore filed with the court a helpful outline of submissions, which
I marked as Exhibit 1.  I turn to some of the matters raised in those submissions and other matters raised in oral submissions and evidence.

17You are aged 31 and a refugee from Zimbabwe.  You are well educated and you come from a good family.  Your mother is a financial adviser, your father
a retired professor of agriculture.  You have two sisters, one a doctor and the other an accountant.

18You arrived in Australia in 2004, aged 18, as a student.  In 2009, you completed a Commerce Degree at Deakin University.

19In 2010, you committed your first offence that I have already referred to.  You were released from prison in September 2012 and because of your visa status at that time, had no working rights.

20In December 2012, you met your now estranged partner, Sophia Di Venuto, with whom you now have two children.  A son, Carmelo, was born in November 2013.  The fact you could not work to support your family created stress and anxiety for you and placed stress on your relationship with your partner.

21In March 2014, you were found to be a refugee by the Migration Review Tribunal, having been identified as associated with the anti-Mugabe Government movement in Zimbabwe.  Your offending occurred whilst the decision of the tribunal was reserved and during that period, you were still unable to work.  I received into evidence as Exhibit 2, a letter outlining the history of your immigration status in Australia, from your migration lawyer.

22Your partner and your child moved to Brisbane to be supported by her parents.  You were left to support yourself on an asylum seekers' allowance of $463 per fortnight.  You began to use ice and cannabis and you were drinking excessively.  I was told and accept that being idle with so much time on your hands, you associated with other Zimbabwean men in similar situations and in this context, you were asked by an ice dealer to collect the envelopes, in return for free drugs.

23After search warrants were executed in August 2014, you moved to Queensland to live with your partner, child and your partner’s parents.

24In March 2015, you were granted the right to work and you gained employment and have remained in work since then.  You have had jobs in the building and construction industry and have started a business of your own cutting concrete, for which you have borrowed about $80,000 to purchase machinery.

25In mid-2016, your second son, Valentino, was born.  This was soon followed by the death of your partner’s father and you returned to Melbourne.

26I was told and accept that since the offending, you have remained drug-free and moderated your drinking, although it remains a problem for you.

27Because of the stress of these charges, your partner left to live in Tasmania with the children, but you remained on good terms with her.  She gave evidence on your plea and I received into evidence a letter from her, in which she sets out much information about her relationship with you and the kind of person you are.  She told me of the change in you from the person she first met, to becoming a shadow of your former self because you could not work and support your family whilst you awaited a drawn-out process of the Migration Review Tribunal. 

28Being unable to move forward, she told me and I accept, you began to drink to excess and use drugs.  There was no structure in your life.  You were home alone a lot.  She told me she went to Brisbane to be with her parents to make you come to your senses.  She told me that when you went to Brisbane, your anxiety abated and you got along well with her father, who she said took you under his wing.  She told me and I accept that when you were summonsed for this offending, the effect was devastating for you and you sought professional help.  She told me and I accept, she went to Tasmania to live with her mother, because of the pressures of these pending charges.  You have a close and loving relationship with both of your sons and you are involved with their lives.

29Your partner told me that since this offending, you have worked to positively change your life.  She told me of the positive choices you now make, including not taking drugs, although she conceded excessive drinking of alcohol was still a problem.  In passing sentence, I have fully taken into account the evidence from your partner, including her letter.

30Mr Westmore submitted that this evidence showed that since this offending, you have substantially rehabilitated yourself and I should not do anything to damage that rehabilitation.  He submitted that despite your prior conviction, you are a person with positive prospects for rehabilitation.  I generally accept that submission.  I think your prospects for rehabilitation are best described as "reasonable".  I was impressed with the evidence of your partner, Ms Di Venuto.  Although you are presently separated, that has largely come about because of these charges and the need for her to work and support herself as best she can, independent of you.  But I accept that she and her mother are very supportive of you and will assist you to fully rehabilitate yourself, once these charges have been fully dealt with.

31As the letter from your migration agent indicates, in July 2015, the Department of Immigration advised in writing, it was considering cancelling a bridging visa then held by you, on the basis of your previous conviction.  After considering all the circumstances, the Department decided not to do so.

32In May 2016, the Department of Immigration again gave notice of its intention to consider cancellation of your protection visa on character grounds and later decided not to do so.  You were granted a subclass 866 visa on 6 March 2017.

33I was told and Exhibit 2 confirms, that should you be sentenced to a term of imprisonment and held in custody for any period, this will result in the cancellation of your subclass 866 visa, in which case you would become an unlawful non-citizen and will be held in immigration detention whilst any request to revoke the visa cancellation is considered.  Because you are a refugee, you cannot be removed to Zimbabwe.  I accept that these matters must have weighed heavily upon you and your family for some time.  I accept that the indirect consequence of the imposition of any term of imprisonment upon you, will mean that any term of imprisonment will be more burdensome for you than for others and I have taken this circumstance fully into account.

34I also received into evidence some references from people who know you, including your partner’s mother.  All speak highly of you.

35Mr Westmore submitted that I must have full regard to s.17A of the Act and
I must not impose a sentence of imprisonment, unless satisfied that no other sentence is appropriate in all the circumstances of this case.  He submitted
I should either impose a fully suspended sentence, applying s.20(1)(b) of the Act, or make a community corrections order of sufficient length and breadth.  He submitted either disposition would adequately address the purposes of sentencing, such as general and specific deterrence, without undermining your efforts at rehabilitation.

36Mr Barry also submitted a helpful outline of argument in writing.  He reminded me of the requirement in s.16A(1) of the Act, that I must impose a sentence which is of a severity appropriate in all the circumstances of the offence and also of the need to ensure that you are adequately punished for the offence.

37Mr Barry relied upon the principles expressed by the Court of Appeal in Nguyen & Anor v. R [2011] 31 VR 673 at [33-39]. I accept that in passing sentence,
I must have regard to and apply the sentencing principles expressed in that decision. 

38Although your role in this crime was important, in my view, the level of your criminality was unsophisticated and of a low level.  Unlike many other examples of this offence, the volume of the precursor involved was small, albeit ten times a marketable quantity threshold.  Mr Barry helpfully provided me with
a spreadsheet of sentences in similar charges.  In none of those cases set out on the spreadsheet, is the volume as low as here.  Also, you offended to obtain supply of a drug you were addicted to.

39In cases of offending of this kind, the sentence must be driven by the need for application of general deterrence and in this case, there is the need to address specific deterrence because of your prior conviction for similar offending.

40Mr Barry submitted the only appropriate disposition in all the circumstances of this case, is one of immediate imprisonment.  He submitted and I accept that because of your prior conviction for similar offending, the sentence I impose must adequately address specific deterrence, as well as general deterrence.  He submitted no other sentence other than a term of immediate imprisonment could properly address this need.

41In considering these matters, I have given considerable thought as to whether or not I should impose a community corrections order with appropriate punitive and other conditions.  In the end and although it gives me no joy to do so, I have concluded that the making of a community corrections order with conditions would not properly address the most important purposes of sentencing in this case, namely deterrence, both general and specific.  For these reasons, you will be sent to prison for your crime.

42On the charge of  importing a marketable quantity of border controlled precursor substance, namely pseudoephedrine, you are convicted and sentenced to
a term of imprisonment of two years, commencing this day.

43I propose to suspend 12 months of the total effective period of imprisonment.  Accordingly, after you have served the period of 12 months, you may be released on a recognizance in the sum of $1,000, without surety, to be of good behaviour for a period of 12 months. 

44For the purposes of s.6AAA of the Sentencing Act 1991 (Vic), I state, I have imposed a sentence being a term of imprisonment in respect of the charge and I have reduced the overall sentence I would have imposed, but for your plea of guilty. Had it not been for your plea of guilty to the charge, I would have imposed an effective term of imprisonment of four years and I would have directed that you serve at least two years and eight months of that sentence, before being eligible for release on parole.

45I am required by S.16F of the Act, to explain this sentence to you.  The purpose of the sentence is to reflect the gravity of the offence, but also to spare you the need or requirement to serve the full term of two years' imprisonment.  You will now go to prison and serve one year of your sentence.  Thereafter, you will be released from prison, although I expect you will be taken to immigration detention until such time as your visa status is dealt with. 

46If you are of good behaviour over the ensuing 12 months after your release from prison, that will be the end of the sentencing process, insofar as the court is concerned.  If you are not of good behaviour, you will, in all likelihood, be brought back before this court and depending upon the nature and seriousness of your transgression, the court, may impose a fine up to $1,000, or extend the period of good behaviour, or impose a different penalty, or revoke the order and send you back to prison for the balance of your sentence of one year, or take no action.  You may apply to the court to vary the terms of the recognizance from time to time.  Now I ask you whether you are prepared to enter into the recognizance?  It requires your agreement and that is why I am required to ask you.  Are you prepared to enter into a recognizance, Mr Rukuni?

47OFFENDER:  Yes, Your Honour.

48HIS HONOUR:  I declare there has been no pre-sentence detention.

49Any questions arising out of that from either counsel? 

50COUNSEL:  No, Your Honour.

51HIS HONOUR:  You have the recognizance prepared, Mr Crouch?

52MR CROUCH:  Yes, Your Honour.  I will just hand that up. 

53HIS HONOUR:  Could you show it to Ms Papadinas please.  Ms Papadinas, could you have your client sign it please.

54ASSOCIATE:  Would you confirm that this is your signature, Mr Rukuni?

55OFFENDER:  Yes, I do.

56ASSOCIATE:  Thank you.

57HIS HONOUR:  Thank you, would take Mr Rukuni into custody please. 

58I will just adjourn the court until 10.30.

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