Director of Public Prosecutions v Rustemovski
[2020] VCC 171
•26 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01909
CR-18-01910
Indictment No. H12470254
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMI RUSTEMOVSKI |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 20 January 2020 | |
DATE OF SENTENCE: | 26 February 2020 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Rustemovski | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 171 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – trafficking in cocaine in a quantity that was not less than a commercial quantity; possessing a drug of dependence, Alprazolam; negligently dealing with the proceeds of crime – pleas of guilty – delay – parity.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, ss7AA and 73(1); Sentencing Act 1991, s3(1), s5(2A); Crimes Act 1958, s194(4); Criminal Procedure Act 2009
Cases Cited:Arthars v R; Plater v R [2013] VSCA 258; Phillips v R [2012] VSCA 140; R v R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; R v Vo (2007) 16 VR 269; Khoa v R [2015] VSCA 80; R v Piercey (1971) VR 647; Moran & Byrnes v R (1987) 31 A Crim R 248; Farrugia v R [2011] VSCA 24; Lowe v R (1984) 154 CLR 606
Sentence: Total effective sentence of four years and eight months imprisonment – with a non-parole period of 2 years and nine months imprisonment; 154 days presentence detention reckoned as time served; 6AAA declaration – 6 years imprisonment with a non-parole period of 4 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Jassar | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr S Tovey | D T Magazis & Associates |
HIS HONOUR:
1 Sami Rustemovski, you were fully arraigned before His Honour Judge Lacava on 23 September 2019 and pleaded guilty to the following offences:
Charge 1:
2
That you at Dandenong and Hallam in Victoria between 18 May 2017 and
2 September 2017, trafficked in a drug of dependence, namely cocaine, in a quantity that was not less than the commercial quantity applicable to that drug of dependence.
3 Trafficking in a drug of dependence in not less than a commercial quantity is contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 25 years’ imprisonment.
4 Section 3(1) of the Sentencing Act 1991 defines a 'category 2 offence' to include an offence under s.71AA of the Drugs, Poisons and Controlled Substances Act 1981. Any charge constituting a 'category 2 offence' is governed by s.5(2A) of the Sentencing Act 1991 and provides, when sentencing an offender for a category 2 offence, the court must make an order under division 2, part 3 (that is, a custodial order), other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with s.44 of the Sentencing Act 1991, unless statutory exceptions apply. Your counsel made clear that he does not rely on any of the statutory exceptions contained within the Sentencing Act 1991.
Charge 2:
5 That you at Prahran in Victoria on 2 September 2017, possessed a drug of dependence, namely Alprazolam.
6 Such an offence is contrary to s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of one year imprisonment or a maximum fine of 30 penalty units, or both.
Charge 3:
7 That you at Prahran in Victoria on 2 September 2017, dealt with proceeds of crime, namely $13,630 cash, while being negligent as to whether or not the cash was proceeds of crime.
8 The offence of negligently dealing with proceeds of crime is contrary to s.194(4) of the Crimes Act 1958 and carries a maximum penalty of five years’ imprisonment.
The circumstances of the offending
9 During the plea hearing on 20 January 2020, counsel for the prosecution tendered a document headed 'Summary of Prosecution Plea Opening', dated 6 November 2019 (Exhibit 1) and I was informed by your counsel that you agree with the contents of such document. In particular, I note the following.
· You were born on 18 October 1986 and are presently 33 years old. At the time of the offending, you were 31 years old.
· In 2017, investigators from the Echo Task Force began an investigation targeting you, your cousin, and excuse my pronunciation, Prparim Rustemovski ('Prparim'), Peniamina Elia ('Elia'), Penehuro Fuiava ('Fuiava') and Nehro Pirzahiri ('Pirzahiri'). During that investigation, covert operatives were purchasing various drugs and controlled substances from their targets. Other than direct purchases of drugs from their targets, investigators relied upon surveillance of various targets, personal recording devices, call records and monitoring of mobile phones utilised by Pirzahiri.
Charge 1 – trafficking a drug of dependence – cocaine – in a quantity that was not less than the commercial quantity applicable to that drug of dependence between 18 May 2017 and 2 September 2017.
·Total drugs alleged to have been trafficked between these dates are set out as follows.
Date
Quantity
Pure Quantity
18 May 2017
22.2 grams – 62% purity
13.74 grams
25 May 2017
12.9 grams – 60% purity
7.74 grams
7 July 2017
7 grams
0
8 July 2017
10 grams
0
19 July 2017
56 grams – 42%
23.52 grams
17 August 2017
0.9 grams – 60%
0.54 grams
2 September 2017
487.3 grams
330 grams
Total
596.3 grams (including sales to others)
375.86 grams (excluding sales to others)
·The total quantity of pure cocaine was 375.86 grams and the commercial quantity of cocaine as listed in column 2 of part 3 of Schedule 11 to the Drugs, Poisons and Controlled Substances Act 1981 is 250 grams.
·The total quantity of mixture of substance and a drug of dependence as listed in column 2A of part 3 of Schedule 11 to the Drugs, Poisons and Controlled Substances Act 1981 is 500 grams.
Trafficking cocaine on 18 May 2017
·On 17 May 2017, a covert operative contacted Pirzahiri, also known as 'Charlie', to organise a 'catch-up' for 18 May 2017, to which Pirzahiri responded that he could 'around 5 6'.
·After several messages and phone calls, the covert operatives and Pirzahiri met shortly after 6.23 pm on 18 May 2017 and it was agreed that the covert operative would purchase a 'half-bag' – that is 14 grams of cocaine. Pirzahiri stated that it would take time to organise and they should purchase an ounce, as it would take the same amount of time to organise.
·
Pirzahiri informed them that it would cost $7,500 per ounce or $250 per gram. Covert operative 389 (that is 'CO-309'), also known as 'James', tried to organise more money for an ounce but could not do so.
CO-284 arranged to purchase $6,000 worth of cocaine, which equated to 24 grams. Pirzahiri informed them that he would call them in half an hour, and he left the area at 6.47 pm.
·At 18.48 pm, Pirzahiri called you. At 7.07, 7.20 and 7.23, you called Pirzahiri.
·At 7.28 pm, Pirzahiri arrived at Mills Reserve, Dandenong. He was driving a black BMW registration 1IB 5PO. Pirzahiri’s car was followed by a dark Holden Commodore registration YRF 914. This vehicle is registered to you.
·Pirzahiri came out of his car and met the covert operatives in their car and the conversation was recorded. He stated that it was his 'cousin' driving the Holden and that he was his 'partner' and that he did not like to be introduced and he was going to stay in the car.
·While in the car, Pirzahiri was handed $6,000 cash and he counted the money and exited the car. He then walked to the Holden Commodore and entered the Holden.
·A short time later, Pirzahiri exited the Holden and walked over to the covert’s vehicle and entered into the front passenger side. He then handed CO-284 a medium-sized snap-lock bag that contained multiple smaller bags that contained white powder. The bags were removed from the bigger bag and counted. There were twenty-four in total.
·The white powder was combined and analysed and it was determined to be cocaine, weighing 22.2 grams of 62 per cent purity.
·You supplied the cocaine to Pirzahiri to sell to the covert operatives.
Trafficking cocaine on 25 May 2017
·On 24 May 2017, covert operatives contacted Pirzahiri to organise a 'catch-up' for 25 May 2017. Pirzahiri responded that he could tomorrow, it was arranged that they meet up at 12.00 pm.
·After a phone call and several messages, the covert operatives met Pirzahiri at 12.45 pm near the Nitro Gym in Hallam. The operatives arranged to purchase a 'full-bag' (referring to 28 grams of cocaine) and that they had $7,000 to purchase the cocaine.
·Pirzahiri stated that he could organise half a bag (14 grams) and the other half would be available after 5.00 pm. The covert operatives agreed to take half now and wait for the rest after 5.00 pm. They agreed to meet at Mills Reserve, Dandenong, and they left the area.
·Surveillance officers observed Pirzahiri leave Nitro Gym and attend his house at 42 Ingrid Street, Dandenong. At 1.16 pm Pirzahiri left his premises and drove to Mills Reserve, Dandenong and met with the covert operative.
·Pirzahiri exited his vehicle and entered the passenger side of the covert’s vehicle. He put multiple deal bags in the middle console and SO-284 handed over $3,600 cash. There were fourteen individual small snap-lock bags with clear seals, each containing white powder purported to be cocaine. There was further discussion about the other 14 grams to be supplied at around 5.00 pm and they all left Mills Reserve.
·
At approximately 4.33 pm, Pirzahiri met with you. Pirzahiri exited his car and entered into your car black Holden Commodore (YRF 914) and you went for a short drive before returning to Pirzahiri’s vehicle at
4.37 pm.
·Both vehicles left the area and Pirzahiri met with the covert operatives at 4.48 pm in Mills Reserve. Pirzahiri exited his vehicle and entered the covert operative’s vehicle. There he handed fourteen individual small snap-lock bags with clear seals, each containing white powder purported to be cocaine, in exchange for $3,400 cash.
·The white powder from the first batch was combined and analysed and it was determined to be cocaine, weighing 11 grams of 38 per cent purity.
·
The white powder from the second batch was combined and analysed and it was determined to be cocaine, weighing 12.9 grams of
63 per cent purity.
Trafficking cocaine on 7 July 2017
·On 7 July 2017, a warrant was issued to investigators to commence lawful monitoring of Pirzahiri’s mobile phone.
·On this day Pirzahiri and you exchanged text messages and phone calls in order to arrange for you to sell 7 grams of cocaine for $1,600 to a person known as 'Vinnie' or 'Zini', and for you to keep $1,400 for yourself and to give Pirzahiri $200.
·Pirzahiri informed you that he was in Phillip Island and that he wanted a favour: 'ah to leave, ah maybe, yeah seven – pizza'. 'Drop it to someone, at his, just drop it to someone in Dandenong….drop for Vinnie…just take…seven for him'.
·'Pizza' is a code word used by Pirzahiri in reference to cocaine. He has used this with the covert operatives in the past.
·You enquired 'seven all in one or seven individual ones…for how much..'.
·Pirzahiri stated 'one and six. So you take one and four, and you leave two for me, two hundred….one thousand four hundred for yourself…and leave two hundred.'
·You sold 7 grams of cocaine for $1,600 to a person known as 'Vinnie' or 'Zini'.
Trafficking cocaine on 8 July 2017
·On 8 July 2017, Pirzahiri and you exchanged text messages and phone calls in order to arrange for you to sell 10 grams of cocaine for $2,500 to a person known as 'Brendon'. Pirzahiri tells you to keep $2,000 for yourself and to save $500 for him.
·Pirzahiri arranges for you to meet 'Brendon' at Hallam Hotel at 8.30 pm. At 8.17 pm, you informed Pirzahiri that you only had 5 grams and that Prparim does not have any and that he has to go home to make some.
·Pirzahiri spoke to 'Brendon', who said to give him the 5 grams first and then the other 5 grams later. 'Brendon' informed Pirzahiri that you had given him the 5 grams and will provide the rest later on.
·At around 10.43 pm you confirmed with Pirzahiri that 'everything’s done…everything’s sorted'.
·You sold 10 grams of cocaine for $2,500 to a person known as 'Brendon'.
Trafficking cocaine on 19 July 2017
·
On 19 July 2017, a covert operative contacted Pirzahiri to organise to meet tomorrow and for the purchase of 2 ounces of cocaine at
4.00 pm.
·Pirzahiri called you and organised to get 2 ounces of cocaine and you agreed to meet at around 8.30 pm behind the Mosaic Apartments.
·On 20 July 2017, Pirzahiri exchanged text messages and spoke on the phone with a covert operative to organise a place to meet.
·
The covert operatives went to Mills Reserve to meet Pirzahiri. After several messages and phone calls, the covert operatives left
Mills Reserve and met with Pirzahiri, who drove his car, and the covert operatives followed.
·Shortly thereafter, Pirzahiri stopped in Rylands Road, Dandenong and he made his way to the covert operative’s vehicle. This meeting was recorded. They drove to another location to retrieve 2 ounces of cocaine that were secreted near a tree in Pickett Street, Dandenong. They then drove back to Rylands Street, Dandenong.
·Here, Pirzahiri handed over two medium-sized resealable plastic bags with a foil within them. Each contained a small resealable plastic bag containing white powder and he was handed $14,000 cash by a covert operative.
·The white powder was combined and analysed and it was determined to be cocaine, weighing 56.0 grams of 42 per cent purity.
Trafficking cocaine on 17 August 2017
·On Monday 14 August 2017, there were text messages and phone calls between Pirzahiri and a covert operative to meet up on Thursday 17 August 2017 for the purchase of the 'usual' referring to 2 ounces of cocaine.
·At 4.51 pm, Pirzahiri met with the covert operatives at Mills Reserve and this meeting was recorded. He entered the covert operative’s vehicle. Pirzahiri gave the covert operative two medium-sized resealable plastic bags with a foil package within them.
·There was discussion between a covert operative and Pirzahiri about getting 'pure' cocaine. Among other discussions, Pirzahiri stated that if they wanted a sample he could have it in half an hour. It was confirmed that they wanted 1 gram and Pirzahiri said that it would cost $250.
·At 5.18 pm, Pirzahiri called you and said that he rang 'Parim' (Prparim) and he did not answer. He further stated that he would come to the gym and 'give you the things and I just need one small, small just one'. That refers to Pirzahiri collecting 1 gram of the pure cocaine.
·Pirzahiri’s vehicle was under observation by the surveillance unit. At 5.36 pm he parked his vehicle at Doherty’s Gym, Dandenong.
·At 5.38 pm you approached the front passenger side door of Pirzahiri’s vehicle. At 5:41 pm you walked away to his vehicle and opened the boot of his car and closed it and then drove away. Pirzahiri drove away from there and arrived at Mills Reserve at 5.50 pm.
·The white powder from the small Ziplock bag was analysed and it was determined to be cocaine, weighing 0.9 grams of 60 per cent purity.
Trafficking in cocaine 2 September 2017
·On 2 September 2017, at 11:51 pm, Sergeant Giles was working Prahran Divisional Response duties with Senior Constable Perna and Senior Constable Smith, when they entered a carpark situated at the rear of the 'Court Jester Hotel' 270 Chapel Street, Prahran.
·They observed a vehicle reverse parking into a parking bay and Sergeant Giles parked the police vehicle in front of this vehicle and activated the emergency lights.
·
There was one person in the Black Holden Commodore Sedan
(YRF 914). Sergeant Giles introduced himself and asked the driver to produce his driver’s licence. The driver was you. You appeared nervous and Sergeant Giles had a short conversation with you.
·Sergeant Giles was suspicious of you and formed an opinion that you had drugs in your vehicle and informed you of his intention to search the vehicle, and then proceeded to search the vehicle pursuant to the Drugs, Poisons and Controlled Substances Act 1981.
·Sergeant Giles placed his head in the front passenger side of the vehicle and immediately noticed the centre console lid was open and inside the console there was a large amount of cash, and what appeared to be cocaine.
·A thorough search of the motor vehicle was conducted and these items were located:
(a) centre console:
(i) small Ziplock bag containing white powder (0.6 grams);
(ii) cash ($3,570);
(iii)plastic Ziplock bag containing five smaller Ziplock bags containing a white powder substance (5.8 grams);
(iv)plastic 'Healthy Origins' container with 22 white powder capsules;
(b) glove box:
(i) plastic Ziplock bag containing Xanax tablets (36 full tablet and 11 broken pieces);
(c) boot (shoe box):
(i) and there was a quantity of cash ($10,060);
(d) There was in the boot a blue Puma Sports bag and in the sports bag there was the following:
(i)plastic Ziplock bag containing five smaller Ziplock bags containing a white powder substance (5.6 grams);
(ii)plastic container with five smaller Ziplock bags containing a white powder substance (153.6 grams);
(iii)a plastic container containing a white powder substance (8 grams);
(iv)two white round containers marked '1 & 2' with a white powder substance (Container 1: 308.5 grams; Container 2: 339.1 grams);
(v)black container marked 'creatine' with a white powder substance inside (335.7 gram).
· You were searched, which revealed your wallet with cash, a set of car keys, two mobile phones (a Blackberry fully charged with a pin code and an iPhone with no password).
·
A download of one of the mobile phones contained a recent 'Facebook messenger' conversation with 'Patrick Chyzynski' with a time stamp of 29 June 2017 where Patrick Chyzynski asks how much he can get
1 gram for (referring to 1 gram of cocaine) and you replied '250'. Patrick Chyzynski agrees to the price and arranges to meet the following day.
Execution of search warrant
·On 3 September 2017, a search warrant was executed at your home address at 12 Towerhill Boulevard, Lynbrook. Nothing of interest was located.
·You were interviewed (this only related to items that were located in his vehicle) and stated that you knew there was some money and drugs in your vehicle, but you denied ownership.
·You stated that you knew about the bags of cocaine in the front of your car.
·You said you never opened the bag in the boot, as you did not want to know what was in it.
·You further stated that the bag in the boot had been in your car for a week or two.
·You stated that the money in your vehicle belonged to someone else and that lots of people drive your car, and you did not know whom the money belonged to.
·When asked who drives your vehicle, you did not name any person.
·You said that the 'Blackberry' did not belong to you and that you were carrying it in your pocket in case somebody rang so you could answer it and work out whom the phone belonged to.
·As to the Facebook messenger conversation with Patrick Chyzynski, you stated that you sometimes gave it to your friends at cost price (that is referring to cocaine).
·On 5 October 2017, the items seized from your Holden Commodore were analysed and the results of items that contained cocaine are:
(a) Items 58: 0.4 grams – 45 per cent purity;
(b) Item 59 (combined): 140 grams – 50 per cent purity;
(c) Item 63 (combined): 4.6 grams – 50 per cent purity;
(d) Item 64 (combined): 4.4 grams – 42 per cent purity;
(e) Item 66: 9.3 grams – 45 per cent purity;
(f) Item 76: 240.3 grams – 76 per cent purity;
(g) Item 77: 87.6 grams – 78 per cent purity;
(h) Item 78: 0.7 grams – 58 per cent purity.
· The total quantity of pure cocaine was 330 grams. The commercial quantity of cocaine as listed in column 2 of part 3 of Schedule 11 in the Drugs, Poisons and Controlled Substances Act 1981, is 250 grams. Counsel for the prosecution asserted that the prosecution relied on the weight of pure cocaine to prove Charge 1.
Charge 2 – possession of a drug of dependence – Alprazolam found on
2 September 2017
·Alprazolam (Xanax) was found in the glove box of the vehicle. Analysis revealed it contained Alprazolam which is listed as a drug in column 1 of part 1 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (less than 0.5 grams).
Charge 3 – negligently deal with proceeds of crime $13,630 found on
2 September 2017
·The cash found in the motor vehicle: $3,570 in the centre console and $10,060 in a shoebox found in the boot.
·Throughout the Operation Mackerel, all cash that was used to pay for drugs by covert operatives had their serial numbers recorded.
·These serial numbers that were recorded were cross-referenced against the cash that was located in your vehicle on 3 September 2017. Thirty-five of the $50 notes and five of the $100 notes contained the identical serial numbers that were used by covert operatives to purchase 2 ounces of cocaine from Pirzahiri on 1 September 2017.
10 You were in custody on remand in relation to these charges from 8 September 2017 to 20 October 2017, when bail was granted. On 7 November 2019, you voluntarily revoked bail after your committal hearing and were further remanded in custody from 7 November to date. As at 20 January 2020 (the plea hearing), you have served 74 days by way of pre-sentence detention.
Your criminal record
11 Your criminal record, dated 23 September 2019, was tendered (Exhibit 2). Such document reveals that at the Melbourne Magistrates’ Court on 31 March 2017, you were found guilty of affray (that is common law affray) and, without conviction, the matter was adjourned to 6 March 2018, with you ordered to pay $5,000 to the court fund.
Orders sought
12 Counsel for the prosecution sought disposal and forfeiture orders which were not opposed.
Your personal and work background
13 Your counsel tendered the following documents:
(a)a document headed 'Outline of Submissions on behalf of Sami Rustemovski', dated 20 January 2020 (Exhibit 'A');
(b)a psychological assessment report from the clinical neuropsychologist, Mr Mathew Staios, dated 1 November 2019 (Exhibit 'B'). Mr Staios interviewed you on 21 October 2019. In his report he noted:
·Although you have a large extended family network, you informed Mr Staios you consider yourself a 'loner', stating that you prefer to spend your time engaging in solo recreational activities – for example weight lifting and marital arts – rather than socialising in large groups.
·You have always lived in the family home with your parents and stated that you are a reasonably-sheltered individual who continues to rely on your immediate family for practical support.
·You were engaged in a long-term relationship between 2015 – 2017, which broke down, leading to social drug use and exposure to what Mr Staios refers to as 'maladaptive individuals'.
·You commenced cocaine on a recreational basis and soon became addicted, leading to daily use and dealing to social acquaintances in order to support your habit.
·You informed Mr Staios that you had no history of poor psychological or medical health, although did experience a number of panic attacks in 2017, in the context of significant cocaine use, which caused you to cease using that substance in mid-2017. You informed Mr Staios that you did experiment with substances on a few occasions in your early twenties, but denied using them again after your late twenties, early thirties.
·Mr Staios estimated that your brief premorbid level of intellectual functioning falls in the average range; your abstract verbal reasoning skills and vocabulary knowledge fell within the low-average range; your ability to reconstruct designs and abstract non-verbal pattern recognition skills fell within the average range and your immediate auditory-verbal attention span fell within the average range.
Mr Staios was of the opinion that your current cognitive profile was generally consistent with premorbid expectations and falling within the low-average to average range of intellectual functioning.
When discussing your current offending, you attributed your actions to poor consequential thinking and judgement and excessive substance use – addiction against a background of socialising with negative peer influence which served to perpetuate negative behaviours.
Ultimately, Mr Staios stated:
'Overall, it is my opinion that Mr Rustemovski has the capacity to successfully address factors relating to his current offending, particularly if an appropriate level of support was to be provided alongside risk management strategies. I note that his past forensic history is minimal and relates to a single charge of affray in the context of a workplace altercation, where Mr Rustemovski used excessive force as a security guard while reportedly restraining an intoxicated punter. His limited contact with the justice system indicates that he is a good candidate for rehabilitation. Furthermore, a number of other protective factors were identified during the current assessment that may serve to moderate his level of risk moving forward, including (a) supportive family network, (b) stable employment history, (c) abstinence from drug use, (d) minimal offending history, (e) and no history of entrenched anti-social personality traits or psychopathology. To reduce his risk of recidivism moving forwards, the following recommendations are offered:
· Referral to a forensic psychologist is recommended. Treatment targets identified, include: consequential thinking, problem solving skills, offending behaviours, substance use'.
(c)(i)
a report from the consultant psychiatrist, Dr Yogendra Agrawal, dated 1 October 2019, in respect of the mental health of your mother.
Dr Agrawal reported that your mother has experienced an escalation of her depressive symptoms and anxiety symptoms due to psychosocial stressors related to your court case.
(ii) a report of the general practitioner, Dr Jamal Yusuf, dated 19 October 2019. Dr Yusuf also notes the depression of your mother is 'worsening' because of the 'court case'. Dr Yusuf also notes that you care for your parents and are the only working person in the family to support them.
(iii)
a report of the psychologist, Lin Chew, dated 25 September 2019.
Mr Chew notes that your mother has been the subject of a mental health treatment plan developed by Dr Yusuf. Your mother was referred to Mr Chew and he refers that she suffers from depression, together with an adjustment disorder with mixed anxiety and depression. He also notes that such adjustment disorder is associated with physical injuries that your mother suffered during her work, together with multiple complications. Furthermore, he is also of the opinion that your legal issues have been an exacerbation of her depressive and anxiety symptoms. (Exhibit 'C')
(d)character references from the following:
·
Mr Adi Miftari, dated - I apologise if I mispronounce these.
Mr Adi Miftari dated 2 November 2019 (your brother-in-law). In particular, Mr Miftari notes that you have shown 'sincere remorse' for your actions and in particular he notes that you have complied with your bail conditions, have continued to support your unemployed mother and father financially, continue to work in full-time employment and continue to be a caring and loving brother and uncle to your sisters and nephews and nieces.
·He notes that he has known you for seventeen years and has not known of you performing or committing any offence which constitutes serious misconduct.
·Mr Shannon Oorloff, dated 11 October 2019, who has known you since 2015, when you commenced work at the Supply Chain Management – Victoria, a division of Reliance Worldwide Corporation (Aust) Pty Ltd ('RWC'). Mr Oorloff describes you as a 'very capable discipline[d] and industrious employee', who always takes time to help out your fellow employees when needed.
·Mr Oorloff notes also that, in conversations with you, you have expressed your utter disappointment about being involved in the subject offending.
·Mr Oorloff makes clear that he would not hesitate in rehiring you back at RWC, should a position be available.
·
Mr Rodney Goodrope, dated 11 October 2019, who also is employed by Reliance Worldwide Corporation (Aust) Pty Ltd.
Mr Goodrope advises that he has known you for four years in your role as an employee with Reliance Worldwide Corporation. He describes you as a 'very reliable and trustworthy employee' who makes a valuable contribution. Mr Goodrope also notes that if you should need employment in the future he would certainly 'look at employing' you again.
·Mr Nick Vrdoljak, dated 15 October 2019. Mr Vrdoljak has known you as a friend and training partner at a local sporting establishment over the past two years. Mr Vrdoljak notes that when told of the subject charges, he was taken back because the charges did not match the 'persona and personality traits that [he] has become accustomed to over the past two years'.
·
Ms Leirosa Patterson, the manager of the Kimekai Mixed Martial Arts Cranbourne. Ms Patterson has known you since approximately December 2017, when you commenced training extensively at her gymnasium, four to five times per week.
Ms Patterson notes that she believes you are remorseful in respect of the offending that you committed. She notes that you train extensively at the gym, wholly removing yourself from past associates. (Exhibit 'D');
(e)an MRI scan of your cervical spine, dated 16 October 2019, which concludes:
'Moderate to large left paracentral disc protrusion at C5-6 on the left resulting in moderate left sided cord effacement – compression and a moderate left neural foraminal stenosis. A mild diffuse disc osteophyte complex is demonstrated at C6-7 does not produce canal stenosis or cord compression. Mild associated neural foraminal stenosis'.
There was also an MRI scan of the brachial plexus, which was reported as showing no specific abnormality. (Exhibit 'E').
(f)Drug and alcohol testing results in relation to examinations on
22 October 2019 and 30 October 2019 (Exhibit 'F').
Examination on each occasion revealed no evidence of alcohol ingestion or illicit drug use.
14 On the basis of such material, and various submissions made by your counsel, I note the following:
· You were born and raised in Sydney with your parents being migrants from the Macedonian/Albanian area. You are the youngest of three children. Your parents, sister, brother-in-law and another friend were in court during the plea hearing.
· You reported to Mr Staios that you suffered no abuse or neglect in your early childhood and characterised your upbringing as traditional in the context of your parents being hardworking migrants.
·
You and your family moved to the Republic of Northern Macedonia when you were seven years of age, and you remained there for four years in order to be close with other extended family members. You then returned with your family to New South Wales when you were ten years of age for a period of four years, when once again you moved back to
Northern Macedonia for a period of one year before settling in Melbourne.
· You informed Mr Staios that although you believed you had no significant difficulties making friendships, you were not able to maintain consistent friendships because of the moves overseas.
· You described yourself to Mr Staios as somewhat of a 'loner', stating that you preferred spending time engaging in solo recreational activities – for example, weight training and martial arts – rather than socialising in large groups.
· At all times other than being on remand, you have lived in the family home with your parents, and again you described yourself to Mr Staios as a rather sheltered individual who continued to rely on the immediate family for practical support.
· You completed Year 12 at Dandenong High School (formerly Cleeland Secondary College) describing yourself as an average student, but with no history of learning difficulties or problematic behaviours. You also completed a two-year Advanced Diploma in Marketing at TAFE after the completion of high school.
· On completing high school, you stated to Mr Staios that you worked as a machine operator in an aluminium factory for a period of a year, then moved into a similar role as a supervisor with another operation for a period of five years. You then took a role working in Masters Home Improvements for a period of two years before the company went into receivership. During this time, you obtained your security licence and were working at various clubs throughout Melbourne during weekends and every weekend for a period of a few years until 2017 when your licence was revoked in the context of using excessive force when you were charged with affray (criminal record).
· You have not reported any history of poor psychological or medical health, although you suffered a number of panic attacks in 2017 in the context of significant cocaine use. You informed Mr Staios that you found these attacks very distressing, causing you to cease using substances in mid‑2017. You were engaged in a long-term relationship between 2015 and 2017 that ended in the context of various difficulties, including poor communication and your unwillingness to engage in wider social activities.
· Prior to the breakdown of that relationship, you informed Mr Staios that your cousin, Prparim, wished you to join various social activities which principally involved 'clubbing'.
·
During this time, you commenced social drug use and had exposure to a range of individuals. You were ultimately using approximately 3-4 grams of cocaine per week which on occasions led to what you have referred to as the panic attacks. You ceased cocaine use in July 2017. It was during 2017 that you pleaded guilty to one charge of affray at the
Magistrates’ Court in circumstances where you and several other bouncers were charged with using excessive force while dealing with a drunken patron, who apparently also pleaded guilty to affray.
·
As already recorded, you were remanded in custody from 8 September 2017 to 20 October 2017, when bail was granted pursuant to the
CISP Program. You voluntarily revoked bail on 7 November 2019 and have been remanded in custody since that date.
· In about 2015, you commenced employment with Reliance Worldwide Corporation, performing storeman-like duties, and when bail was granted on 20 October 2017, you returned to work with that organisation and continued working until the revocation of bail on 7 November 2019.
Matters put in mitigation of your sentence
15 Counsel noted that your involvement in the drug 'scene' came late in life with the majority of life prior to that having no connection whatsoever to do with drugs. It was generally submitted that whilst that position clearly changed during the offending period, it 'remains the case that [you had] strong prospects of returning to a life without drugs after [your] sentence is served'.
16 Although observing that the offence is 'undoubtedly serious' and that you were involved in this offending for a number of months, and that general deterrence must be given due weight, it was submitted there was no evidence of any significant enrichment, although it should be accepted that your involvement was for financial gain. Your counsel highlighted the following matters:
· The total weight of drugs the subject of these charges is 596.3 grams (see table), being 1.19 times the applicable commercial quantity of 500 grams. It is noted that this is towards the lower end of the commercial quantity threshold.
· ]Of that amount, six transactions amounted to 109 grams with the remaining amount – 487.3 grams – located mostly in the boot of the vehicle that you were driving. In this respect, it was accepted between the parties that you did not place the substances there but that you knew it was there and knew it was to be used for the purposes of trafficking. In this sense, you were not the beneficial 'owner' of those drugs.
· The drugs relevant to you were generally between 40 and 60 per cent purity, which demonstrates that you were not close to the 'source' of the drugs, but closer to street level.
· There is no evidence of substantial enrichment or living a lavish lifestyle by you and, in particular, you yourself were a heavy drug user until around July 2017, weeks prior to your arrest in this matter.
17 In particular, your counsel submitted the following matters:
(a)Although accepting that your plea of guilty was not an 'early plea', such plea does retain substantial utilitarian value when considering such plea obviated the need for a trial which would have involved various transcripts being played and the like. Furthermore, it was submitted that such plea of guilty is indicative of remorse.
(b)You have no relevant prior convictions and, indeed, given the circumstances of the one matter bringing you to court, you should be effectively treated as a first offender.
(c)You have demonstrated remorse, not only through your plea of guilty but it is also supported by some of the character references – see reference of Adi Miftari, your brother-in-law, and Leirosa Patterson, a co‑owner of the gym facility where you train.
(d)Your character
It was submitted that based on the various references, your offending was 'out of character', and again it was noted that you do not have a lengthy history of drug use or involvement in the criminal justice system. In such circumstances, so it was submitted, you have every chance to return to the positive, productive life you have lived in the past.
Furthermore, your counsel refers to what he calls your 'personal factors' which involves a supportive family network, a strong history of employment and no signs of anti-social or personality traits or psychopathology (that being based on the report of Mr Staois dated
1 November 2019).
(e) The principle of parity applies
It was submitted that the issue of parity applies in this matter as between you and the sentencing of Nehro Pirzahiri, who was sentenced by this court on 23 August 2018 (see DPP v Pirzahiri [2018] VCC 1329 (“Pirzahiri”). This submission is based on the following matters:
–Both you and he were targets of Operation Mackerel, and indeed you fall to be sentenced for a number of transactions that involved the co-offender;
–Pirzahiri refers to you as his 'partner' when speaking to covert operatives on 18 May 2017, when you were present;
–On 7 July 2017, Pirzahiri arranged for you to sell cocaine to a person named 'Vinnie' with the arrangement that you gave him – that is, Pirzahiri – $200.
–A similar arrangement was made on 8 July 2017 where Pirzahiri organised for you to provide 10 grams of cocaine to a person named Brendon.
–The above circumstances indicate that there was a partnership between you and Pirzahiri in respect to a number of transactions.
–Pirzahiri’s DNA (along with Prparim’s DNA) is located on the bags of cocaine located in the boot of your vehicle.
Reference was made to Farrugia v R [2011] VSCA 24. It was submitted by your counsel that you and Pirzahiri were involved in a criminal enterprise and although acknowledging the principle of parity is conventionally applied where there is a marked disparity in sentences imposed on co-offenders whose circumstances are comparable. It also extended to the circumstances surrounding your criminal activity and that of Pirzahiri (see Lowe v R (1984) 154 CLR 606, 610 (Gibbs CJ, with whom Wilson J agreed), 611 and 613 (Mason J), 623 (Dawson J), with whom Wilson J agreed. The court concluded that the parity principle applied to offenders who were involved as part of an enterprise encompassing the repeated commission of crimes of a similar character, which sufficed to make them participants in a common criminal enterprise. In particular, the court stated:
'The Crown submitted that the parity principle should not extend beyond persons who are not strictly co-offenders. That submission must be rejected. In Victoria the parity principle has been applied to a variety of circumstances which did not involve co-offenders in the strict sense but fell within the description of a common criminal enterprise. The parity principle has not uncommonly been applied by Victorian courts to multiple street traffickers and distributors who have dealt with the same supplier or the target of a particular investigation, though they are not co-offenders, and are in no sense complicit.' (Farrugia (op cit) at paragraph [156])
It was submitted that any sentence imposed on you should therefore not leave you with a justifiable sense of grievance when compared to the co-offender, Pirzahiri. Although it was acknowledged that the personal circumstances between you and Pirzahiri may differ somewhat, your offending is clearly linked.
Furthermore, it was submitted that Pirzahiri trafficked 691.2 grams (approximately 100 grams more than you) and was for a slightly longer period (approximately two weeks). It was accepted that Pirzahiri pleaded guilty at an earlier stage and that he was 'slightly younger' than you, although not a young offender. Also, your counsel accepted that the sentence in relation to Pirzahiri involved mitigating factors, including a very early plea of guilty, a Verdins’ point and hardship brought about by the risk of being deported after the completion of the prison sentence. In this context, it was submitted that parity is a 'significant matter' to be taken into account when fixing a sentence.
(f) Delay
Your counsel submitted it has been more than two years since the offending took place and the matter has hung over your head during that time and, more importantly, you have demonstrated rehabilitation in the interim (reference was made to the Court of Appeal decision of Arthars v R; Plater v R [2013] VSCA 258). Your counsel noted that:
–no further offending;
–you have remained drug free;
–you have continued in stable work;
–you have been compliant with bail conditions until such time that you voluntarily revoked your bail;
–you have removed yourself from associates related to this offending;
–overall, you have demonstrated an ability to return to the life you lived for 'the 30 days prior to this offending';
–the opinion of the psychologist, Mathew Staios, that you have 'the capacity to successfully address facts relating to [your] current offending, particularly if an appropriate level of support was to be provided alongside risk management strategies'.
Ultimately, your counsel submitted that your prospects of rehabilitation should be considered 'strong'.
18 In all of the circumstances, your counsel submitted that any prison sentence should certainly be no greater than that ordered in relation to Pirzahiri and should probably be less given Pirzahiri trafficked more cocaine than you over a slightly longer period. In particular, it was submitted that because of your ongoing efforts to rehabilitate yourself you should be given the opportunity of serving a significant portion of your sentence under supervised release on parole.
Response of the Prosecution
19 Counsel for the prosecution submitted the following:
(a) the prosecution rely on the pure quantity of the drug cocaine, being
330 grams, which is substantially more than the commercial quantity of cocaine being 250 grams;
(b) considering that you were not relying on any of the statutory exceptions contained in s.5(2A) of the Sentencing Act 1991, the sentence must be one of imprisonment;
(c) the plea of guilty was “very late in the piece” and close to the trial date. Counsel for the prosecution submitted that originally you were charged with trafficking in a large commercial quantity, but such charge was withdrawn prior to the committal proceeding which occurred in September 2018. There was no further discussion until very shortly prior to the trial, when those acting for you commenced discussion and although the charges did not change at this time, the discussions did lead to a change in the terms of the offer to resolve the matter a few days before trial;
(d) in Pirzahiri, the court found that Pirzahiri was a '
go-between', but had a less serious role than that of you. Such finding was supported by the Crown case. It was submitted on behalf of the prosecution that your offending should be viewed as more serious than Pirzahiri given that you were, seemingly, a significant supplier of the cocaine trafficked by Pirzahiri;
(e) in relation to the submission of delay, counsel for the prosecution referred to Arthars and submitted that in the circumstances where this was an overwhelming Crown case, you should not get the full benefit of delay, during which time there was rehabilitation;
(f) in relation to the issue of parity, it is of not of much assistance given the Crown position that your role was more significant than Pirzahiri and that in any event, Pirzahiri’s sentence took account of a Verdins’ issue and, indeed, facing the risk of deportation after the completion of his sentence. Furthermore, he was younger than you.
Conclusion
20 As was pointed out in Pirzahiri (op cit), as long ago as R v Piercey (1971) VR 647, the then Victorian Court of Criminal Appeal stressed that drug offences were a substantial social evil. Since then, the view expressed by Winneke CJ has been restated in a variety of ways in a large number of cases involving drug use and, in particular, the trafficking of drugs.
21 Again, I also refer to the comments of Tadgell J in Moran & Byrnes v R (1987) 31 A Crim R 248, wherein the Criminal Court of Appeal in Victoria stated at page 264:
'Drugs of addiction - wantonly produced, distributed and used - continue to present to a modern civilised society an increasing burden both monstrous and intolerable. It is a monstrous burden in the sense that it is unusual and evil'.
22 Any offending involving drug trafficking is a serious offence. Charge 1 on the indictment involves the offence of trafficking in cocaine in a quantity that was not less than a commercial quantity. The seriousness of such charge is made plain by the penalty – in relation to trafficking in cocaine in a quantity not less than a commercial quantity, the maximum penalty is 25 years’ imprisonment.
23
Charge 1 is what is referred to as a 'rolled-up' charge, which includes multiple acts of trafficking in cocaine within the one formal allegation. This means that the total weight of pure cocaine relied on by the prosecution is 375.86 grams, made up from the six transactions over the period from 18 May 2017 to
17 August 2017 (consisting of 45.84 grams of pure cocaine) and 330 grams of cocaine largely located in the motor vehicle driven by you when intercepted on
2 September 2017.
24
The total amount of pure cocaine relied on by the prosecution is
375.86 grams, which is well above the amount of 250 grams, being the commercial quantity of cocaine, as listed in column 2 of part 3 of Schedule 3 to the Drugs, Poisons and Controlled Substances Act 1981
25
I do point out that your counsel stressed during the plea hearing that the total quantity of mixture of the substance and cocaine amounted to 596.3 grams, of which the six transactions constituted 109 grams and the balance of
487.3 grams located mostly in the boot of your vehicle when you were apprehended. The total quantity of mixture of substance and cocaine as listed in column 2A part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 is 500 grams. Accordingly 596.3 grams is 1.19 times the applicable commercial quantity of 500 grams and described by your counsel at the lower end of the commercial quantity threshold.
26 The six transactions over the period from 18 May 2017 to 17 August 2017 largely involved you supplying cocaine to Pirzahiri for him to complete various transactions, save for the transaction on 7 July 2017 and 8 July 2017, where, on both occasions, you completed transactions with buyers of cocaine.
27 It has been agreed between the prosecution and your representatives that the cocaine found in the boot of the vehicle that you were driving was not placed there by you, although you knew it was there and knew it was to be used for the purposes of trafficking cocaine. Furthermore, it was agreed that you were not the 'beneficial owner' of those drugs, which was supported by the DNA from other persons both known and unknown on the number of relevant bags of cocaine.
28
Charge 2 involves you being in possession of a drug of dependence, namely Alprazolam (Xanax), found in the glove box of the vehicle driven by you on
2 September 2017. Furthermore, on that date, $13,630 was found in the vehicle driven by you. Charge 2 involves you being negligent as to whether or not cash was proceeds of crime. As your counsel points out, such offence recognises that you had no knowledge that the moneys were proceeds of crime, that you were not reckless as to where the money came from, but was negligent as to that fact. Any sentence is not to be on the basis of those funds are the proceeds of your drug trafficking.
29 Clearly enough, Charge 1, involving trafficking of cocaine, is the most serious offending and will not be tolerated in the community. Any sentence for such offending must reflect particularly general deterrence, but also denunciation of offending, protection of the community and, depending on the circumstances, specific deterrence.
30 I accept, on the basis of the material before me, that for a period of about thirty years or more you had led a positive and productive life, living with your parents and being engaged in full-time employment. Over that period, you describe yourself as a 'loner' and gravitated towards individual activities like weight training and martial arts. Furthermore, growing up you did not have many close friends.
31 Seemingly, in around 2015 you obtained your security licence and began working as a security guard in various pubs, bars and nightclubs around Melbourne. It was in the context of working within the nightclub scene that you were first introduced to cocaine and seemingly within a short time your use of the drug escalated to a problematic level, using approximately 3 grams of the drug per week. I also accept that just prior to the offending period, you went through a breakdown of a serious relationship, which caused you to become more involved with various people in the nightclub and drug 'scene', which compounded your drugtaking and eventually caused you to become involved in drug trafficking.
32 As submitted by your counsel, your road to becoming a drug dealer was different to many, with you experiencing no drug issues throughout your teenage years or twenties.
33 Over the period of your offending, I accept the submission by your counsel that your involvement seemingly was for financial gain – no doubt to assist in what had become an addiction of cocaine. I also accept that there is no evidence before the court of any substantial enrichment or leading to a lavish lifestyle as a result of your offending.
34 Your counsel involved informed the court that you ceased taking drugs – that is cocaine – in approximately July 2017 and have been drug free since that time. Since then, you have continued to live at home and work full time in those periods where you have not been incarcerated. Furthermore, you instruct that you have broken your association with those selling drugs and the lifestyle that you led during the time of the offending.
35 Your counsel submitted that your prospects of rehabilitation should be considered 'strong' on the basis that you have been drug free since mid-2017, there has been no further offending, you have been in stable work during the periods which you have been on bail, you have abided by your bail conditions, you have removed yourself from associates related to the offending and that you have been attending a gym far more frequently, and are well respected by associates you meet at the gymnasium. Furthermore, and in particular, drug and alcohol testing results in relation to examinations on 22 October 2019 and 30 October 2019 revealed no evidence of alcohol use or illicit drug use.
36 However, I do consider it is 'still early days' to assess your prospects of rehabilitation. It must be remembered that prior to the advent of your offending you were employed by Reliance Worldwide Corporation – the employer to which you returned after bail was granted and at all material times, other than when on remand, you had been living with your parents. Furthermore, the only objective evidence of you not using drugs are the two examinations undertaken on 22 and 30 October 2019.
37 I do take note of the various character references on your behalf and, in particular, the comments of those who have been associated with you between the period of your bail being granted and the voluntary revocation of bail. These involve the manager of the gymnasium you attend, various work supervisors and a relative, all of whom speak highly of your attitude and, in particular, your extensive use of the gymnasium. I would characterise your prospects of rehabilitation as 'reasonable'.
38 In mitigation of your offending, I take account of the following:
(a) your plea of guilty was not at the earliest possible time given the circumstances of this matter, but I do accept the final position of the parties was not reached until shortly prior to the listed trial. I also take account of what I consider to be a reasonably strong prosecution case with which you were confronted. I do accept that a plea of guilty has the effect of saving the court the time and cost of a trial, as is made clear by Phillips v R [2012] VSCA 140 at paragraph [36].
It is always a question for the sentencing judge whether remorse or a willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (see again Phillips v R (op cit) at paragraph [96]). I do accept, in the circumstances of this matter, that your pleas of guilty in all the circumstances, or your plea of guilty I should say, in all the circumstances do demonstrate a modest willingness to facilitate the course of justice and acceptance of responsibility given the late date of such pleas;
(b)however, I do accept that you have shown genuine remorse, as demonstrated by the comments of your brother-in-law Adi Miftari and Ms Leirosa Patterson. Furthermore, you also expressed to
Mr Shannon Oorloff, your disappointment in yourself at being involved in the subject offending;
(c)you have no prior convictions and although you have seemingly been found guilty of affray on 31 March 2017 at the Melbourne Magistrates’ Court, I do not consider that such offence is relevant to an appropriate disposition in relation to this offending. Again, I note the various character references which describe you, among other things, as reliable and trustworthy;
(d)I note that your counsel disclaims any reliance on any of the principles set out in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
I note that in particular, the neuropsychologist, Mr Staios, was of the opinion that you had the capacity to successfully address factors relating to your current offending, particularly if an appropriate level of support was provided, alongside risk management strategies. In particular, he referred to your supportive family network, stable employment history, abstinence from drug use, minimal offending history and no history of entrenched antisocial personality traits or psychopathology. As I have already noted, some of your abstinence from drug use is based on your assertion and, indeed, prior to your offending you had a supportive family network and a stable employment history. Notwithstanding, I do accept, as stated earlier, your prospects of rehabilitation are 'reasonable'.
39 Your counsel also submitted that there should be parity between the sentence imposed on Pirzahari and you in relation to the offence of trafficking in a drug of dependence, namely cocaine, in a quantity that was not less than the commercial quantity applicable to that drug of dependence. In essence, the parity principle requires that like cases should be treated alike, and if there are relevant differences, due allowance should be made for them (see Postiglione v R (1997) 189 CLR 295, 301; Koha v R [2015] VSCA 8 at paragraphs [42]-[54]).
40 I refer to the decision of DPP v Pirzahiri [2018] VCC 1329, which sets out the Reasons for Sentence in relation to Pirzahiri pleading guilty to the following offences:
(a)Charge 1 – that between 15 May 2017 and 16 September 2017, trafficking in a drug of dependence, namely cocaine, in a quantity which was not less than the commercial quantity applicable to that drug of dependence;
(b)Charge 2 – that between 19 September 2017 and 21 September 2017, attempting to traffic in a drug of dependence, namely cocaine;
(c)Charge 3 – that on 21 September 2017, possessing a drug of dependence, namely cocaine;
(d)Charge 4 – on 21 September 2017, possessing a drug of dependence, namely anabolic and androgenic steroidal agents.
41 Pursuant to s.145 of the Criminal Procedure Act 2009, the following charges were uplifted from the Magistrates’ Court:
(a) Summary Charge 46 – that on 21 September 2017, dealing with property, namely $2,400 cash, suspected of being the proceeds of crime;
(b) Summary Charge 47 – on 21 September, dealing with property, namely a Mercedes sedan, suspected of being the proceeds of crime.
42
In relation to Charge 1, Pirzahiri was convicted and sentenced to a period of imprisonment of four years. In relation to Charge 2, he was convicted and sentenced to a period of imprisonment of three months, in relation to Charge 3, he was convicted and sentenced to a fine of $400 and in relation to Charge 4, he was convicted and sentenced to a fine of $250. In relation to the uplifted Summary Charge 46, he was convicted and sentenced to three months’ imprisonment and in relation to the uplifted Summary
Charge 47, he was convicted and sentenced to three months’ imprisonment.
43 It was ordered that one month of the sentence in relation to Charge 2, one month in relation to the uplifted Summary Charge 46 and one month in relation to the uplifted Summary Charge 47 be served cumulatively upon each other and upon the sentence imposed in relation to Charge 1. The total effective sentence was four years’ and three months’ imprisonment and there was ordered a non-parole period of 2½ years.
44 It is to be noted that at the time of the subject offending, Pirzahiri was 25 years old, had no prior convictions and prior to the subject offending, had led a blameless life.
45 In mitigation of his offending, the court took into account the following matters:
(a)a plea of guilty which was at the earliest possible time given the circumstances of the matter and which was accepted to be also demonstrative of significant remorse and a willingness to facilitate the course of justice and an acceptance of responsibility. Furthermore, Pirzahiri cooperated with the authorities to some extent, particularly when the warrant was exercised, and gave frank answers to various questions in a long record of interview;
(b)prior to the offending, Pirzahiri suffered Post-Traumatic Stress Disorder and it was the opinion of both a psychologist and a psychiatrist that prison would be more arduous for him than others, given that the Post-Traumatic Stress Disorder arose in circumstances of his journey from Indonesia to Australia, and his period on Christmas Island, where he was raped and threatened on several occasions. Such submission in relation to the Verdins point was powerful according to the psychologist given that he would be forced to be around and in close contact with males in prison;
(c)his sentence also took account that he faced deportation at the completion of any period of imprisonment and that any period of imprisonment becomes more burdensome on the offender and on release from prison there may amount to additional punishment, involving as to where the offender lives and the opportunity of remaining in Australia.
46 In that sentence, the court found that the cocaine that Pirzahiri trafficked was supplied by you and perhaps very briefly by your cousin, Prparim Rustemovski. In particular, it was stated:
'… The prosecution has accepted that you were not a principal in the trafficking enterprise but, rather, what has been described as a "go-between" for Sami Rustemovski and the various people who purchased cocaine from you. Various communications between you and Sami Rustemovski, and meetings with him, would tend to confirm this situation. However, I consider that you were an integral part of this enterprise, given that, as I have stated, your involvement with dealing with various people, telephoning various people, texting various people and negotiating with them as to the purchase of cocaine. Clearly enough, such an enterprise could not function without people such as you being prepared to undertake such a role. However, I do accept that your role as a ‘go- between’ is less serious than that of a principal conducting a drug-trafficking enterprise'. (See paragraph [69])
47 Although I accept that the concept of parity can be applied in relation to the sentencing of Pirzahiri and your sentence (see generally Farrugia (op cit)), I consider there are material differences in the sentencing matrix which would not lead to the proposition that any sentence ordered in the circumstances of this matter should be no more than the sentence ordered in relation to Pirzahiri and preferably less.
48 However, I do make the following comment. Covert operatives and phone taps were only relevant to Pirzahiri and, of course, on occasion, that involved telephone calls being made to and from you to Pirzahiri. There were no covert observations of you or recordings of telephone calls made by you to others. In this sense, there is no evidence that you were a principal who either stockpiled cocaine on a large-scale basis or ran an operation involving significant 'sellers', such as Pirzahiri. Indeed, there was little found to support significant earnings from your involvement or indeed significant amounts of cocaine. Clearly enough, most of the time Pirzahiri had to contact you to obtain the product, which suggests – no more than that- that he was a distributor of cocaine to various underlings. In the circumstances of this matter, there is no evidence to lend any real support for that suggestion.
49 It is in this respect, although I do not consider that the criminality of Pirzahiri is any worse than your criminality – rather, a better way to view it, is that you were both part of a criminal enterprise which caused you to interact with Pirzahiri for transactions to take place.
50 Your counsel also relied on the issue of delay. He submitted that from when you were charged to your plea of guilty was approximately 2½ years. In particular, I refer to the Court of Appeal decision of Arthars v R; Plater v R [2013] VSCA 258, wherein the Court of Appeal stated (at para [25]):
'The justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness. Chernov JA in R v Cockerell, in a statement subsequently affirmed in R v Tiburcy, expresses these principles thus:
First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, therefore keeping the offender in a state of suspense as to what will happen to him or her … .'
51 And then I jump a little bit further:
'Counsel for the applicant, in oral submissions, relied upon Maxwell P’s remarks in R v Merrett, Piggot and Ferrari [(2007) 14 VR 392)] that the effect of the lapse of time on the accused, "however caused," is a powerful mitigating factor. Thus it was contended that regardless of the fact that the delay may have been caused by the appellant’s unwillingness to plead guilty until a trial date was imminent and despite the overwhelming evidence against him, the unfairness associated with having the matter hanging over his head should have been taken into account as a factor in mitigation'.
52 Then jumping a little bit further:
'… Any delay caused merely by the exercise of the right to contest criminal charges and have the matter proceed to trial will never be regarded as the "fault" of the accused for these purposes.
When considering whether a delay requires the element of fairness to be taken into account as a mitigating factor, the court must have regard to the degree to which the accused had control over the length of that delay. The observation in Merrett is not to be understood as suggesting otherwise. Delay which is caused by prosecutorial process or the administration of the courts will carry more weight as a mitigating factor than any delay which is attributable to the actions of the offender'.
53 Although I do accept that there is some delay between the laying of charges and the hearing of this matter, it is unclear as to the degree to which you had control over the length of that delay, bearing in mind any delay caused merely by the exercise of a right to contest criminal charges had this matter proceeded to trial will never be regarded as the fault of the accused for these purposes.
54 Ultimately, as I understood the submission, your counsel submits that he was not relying on the principle that you were in a state of suspense as to what will happen over the period of delay but, rather, such delay has demonstrated your commencement of rehabilitation and that should not be jeopardised, and that a sentence should ensure that, as much as possible, you have the opportunity to complete that process of rehabilitation.
55 Ultimately, I understood your counsel to effectively accept that it is a matter of weight and indeed I do give some weight to that proposition in reaching an appropriate sentence.
56 I intend to convict you of all the offences. In relation to Charge 1, as I have already noted, consideration of general deterrence and denunciation of the offence are important, although I consider the issue of specific deterrence is not as important as other matters, given what appears to be a genuine attempt to rehabilitate yourself.
57 Furthermore, in relation to Charge 1, I intend to moderate the non-parole period to be imposed to allow you to have the potential to continue your rehabilitation under supervision.
58 Please be upstanding:
(a) in relation to Charge 1 on the indictment, you are convicted and sentenced to a period of imprisonment of four years and six months. This is the base sentence;
(b) in relation to Charge 2 on the indictment, you are convicted and sentenced to a fine of $400;
(c) in relation to Charge 3 on the indictment, you are convicted and sentenced to a period of imprisonment of four months.
I order that two months of the sentence in relation to Charge 3 be served cumulatively upon the sentence imposed in relation to Charge 1. The total sentence is four years and eight months’ imprisonment and I order that there be a non-parole period of two years and nine months;
(d) I declare that you have served 154 days in pre-sentence detention in relation to the subject offences and such period is to be administratively deducted from your sentence;
(e) I also grant the orders sought for disposal and forfeiture;
(f) I declare that save for your pleas of guilty to the offences, I would have ordered a period of imprisonment of six years with a non-parole period of four years.
59 MR TOVEY: As the court pleases.
60 MR PICKERING: As the court pleases.
61 HIS HONOUR: Anything to say about that gentlemen?
62 MR TOVEY: No, Your Honour.
63 HIS HONOUR: Thank you. Look, I am pressed. I'll allow the family just to go say something quickly to your client.
64 MR TOVEY: Yes.
65 HIS HONOUR: Generally I just allow a few minutes to do that, but please though not too long. In part because I just have to get this jury back in.
66 MR TOVEY: As the court pleases.
67 HIS HONOUR: So you can take them back there now.
68 MR TOVEY: We'll ensure that it's brief, Your Honour.
69 HIS HONOUR: Are counsel outside?
70 TIPSTAFF: Yes, Your Honour, there're ready to go.
71 HIS HONOUR: Yes, well get them in and tell them we'll be off in a minute.
72 TIPSTAFF: Yes, Your Honour.
73 HIS HONOUR: Yes, ladies and gentlemen, you're free to go.
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