Director of Public Prosecutions v Sakaci
[2012] VCC 924
•5 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01175
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERKAN SAKACI |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 June 2012 | |
DATE OF SENTENCE: | 5 July 2012 | |
CASE MAY BE CITED AS: | DPP v Sakaci | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 924 | |
REASONS FOR SENTENCE
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SUBJECT – CRIMINAL LAW
CATCHWORDS – Sentence – trafficking in large commercial quantity of MDMA
LEGISLATION CITED – Sentencing Act 1991, s.18(4), s.6AAA; Crimes Act 1958, s.464ZF(2)
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr PA Stefanovic | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr P A Dunn QC | Garde Wilson Lawyers |
HIS HONOUR:
1 Erkan Sakaci, you have pleaded guilty to one charge of trafficking in a large commercial quantity of MDMA, the maximum penalty for which is life imprisonment.
Circumstances of Offending
2 The facts are not in dispute and are described in Exhibit A, the outline of agreed facts, which I adopt.
3 Over the period from 23 November 2009 until 2 February 2010, you operated as a “middle man” or “conduit” between persons who supplied substantial quantities of MDMA or ecstasy, and those who distributed that drug to the public. You were one of a significant number of persons detected and arrested in the course of that police operation.
4 Over the relevant period, you were involved in a large number of telephone discussions with various persons involved in the drug ring relating to the supply of ecstasy tablets. Ultimately, in the vicinity of 25,000 tablets were trafficked as a result of your involvement. The total weight of those tablets was 4,500 grams. Of that number, approximately 10,000 tablets were actually sold through you, and a further 15,000 were “offered” for sale.
5 You were arrested in March 2010. It is accepted that you pleaded guilty at an early time, at a committal hearing, but without the need for any of the witnesses to be cross-examined.
Factors Personal to You
6 You were born in 1977 and are now thirty-four years of age. Your parents came to this country from Turkey in 1974 and their life here has been marked by a strong work ethic and a close family structure. You have a younger brother studying accounting, and a married sister. Each of your parents is now in failing health.
7 Your secondary schooling was at Hallam High School where you completed Year 12. You enrolled at an engineering course at Footscray, but left after twelve months. You enrolled the next year in a marketing course, but did not undertake that course. You worked in various areas of employment, of a manual nature, and have owned or been involved in a number of food businesses.
8 In 1998 you met a Turkish girl, who was from a different religious sect to that of your family and although the relationship was maintained over a number of years, it has since ended, causing you significant distress.
9 In 2003 you went to Turkey and entered an arranged marriage, which lasted only a short time.
10 Upon your return to Australia, you worked for a print cartridge company but were laid off. In 2008 you commenced a Turkish food restaurant in respect of which your family borrowed a considerable amount of money. The business subsequently failed, leaving significant debts which were secured by mortgage to your family’s property.
11 Around this time, various circumstances came together which led you to experiment with, and then become, heavily involved in illicit drugs. The relationship with your girlfriend broke down because of disapproval by both families. The restaurant business failed, carrying considerable debt, and you came into contact through that business with various persons involved in the drug trade, including a number who I have sentenced as part of this same police drug operation.
12 According to the report of Mr Patrick Newton, psychologist,[1] you were regularly using methylamphetamines and various other illicit drugs at this time such that you experienced “profound mood swings and other psychological effects.” In this context, you became a conduit for various drug suppliers. Over the relevant period your counsel indicated that the profit was in the order of $15,000 to $20,000. While I accept that there were the various factors involved in your trafficking, it is clear the main purpose of your involvement was for monetary gain.
[1]Exhibit 2
13 After your arrest in March 2010, you contacted John Morgan with whom you had worked in a print cartridge business, and joined him in a business which, since that time, has become substantial, employing twenty people. It is said that your involvement has been a significant element in its success. Your younger brother, Mehmet, has put his accounting studies on hold to work in the business.
14 You have no relevant prior convictions, and have, since being bailed, complied with the terms and conditions of your bail, and remained living with your parents.
15 According to the report of Mr Newton, you are suffering an adjustment disorder with anxiety and depressed mood as a result of your legal predicament. You have been prescribed medication by your local doctor to help with sleeping. Since you were arrested, you have determined to break your drug habit, and are said to have been abstinent from the use of all drugs since March 2010.
16 It is your expectation, at the conclusion of any term of imprisonment, to resume your involvement in the business and to remain within your close and supportive family. I note a large number of family and friends were present in Court.
17 I was provided with references from various persons. Mr John Morgan, your partner in the cartridge business, speaks of you as a close friend, significantly responsible for the growth of the business, and as a reliable and trustworthy business partner. He noted that both of your parents rely heavily upon you for financial and social support. Your uncle, Hasan Sakaci, speaks of your close family ties and your involvement within your Turkish community. He spoke of you as a respected member of the community, providing considerable voluntary assistance, and of the remorse you have shown for your involvement in the drug trade. He said that your behaviour had changed dramatically since your arrest. Similar sentiments were expressed by other referees, including Mr Finette, Mr Mohseni, Mr Tilley and Mr Yasar.
18 I have further read references from the religious leader of your community, Mr Karakurt, and noted that you had assisted that community in applying for government grants and have sponsored festivals.
19 You are now in a relationship with Ms Berina Ametovska, and are engaged to be married. She referred to the remorse you have shown for your actions and the qualities of hard work and respect for family which you have displayed.
Sentencing Considerations
20 The purposes for which a Court may impose a sentence are:
·Punishment – to an extent and in a manner which is just in all the circumstances;
·Deterrence, both specific and general;
·Rehabilitation;
·Denunciation and/or protection of the community.
21 In sentencing you, I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
22 You have pleaded guilty and are entitled to have that fact taken into account in your favour. I accept that your plea of guilty was made at an early time, and evidences remorse. You have avoided the cost of a trial and spared witnesses the ordeal of giving evidence.
23 You have no relevant prior convictions, have complied with the terms of your bail and are a person who has made a contribution to society, both within your Turkish community and the business in which you have been involved.
24 The quantity of MDMA involved in your trafficking is substantial. It is approximately four times the amount required to qualify as “large commercial quantity”. I accept that your offending occurred over a relatively short period of time and that the drugs did not pass to the public at your hands. However, although there were various factors in your life at or around the time of offending in 2009, including the breakdown of your relationship, the distress as the result of your failed business and the debt against your family’s home as a result, nonetheless the primary reason for your involvement was for profit. You realised a profit of $15,000 to $20,000. You and others like you must understand the very real harm illicit drugs cause in our community and the prospect that, upon conviction, drug traffickers face serious penalties.
25 I take into account the various sentencing statistics provided by the prosecution. I further have regard to the sentences imposed in respect of a range of other offenders sentenced as a result of the same police operation. Those statistics and information are a general guide only and each case must be determined by its own facts and circumstances. Of most relevance is the sentence imposed with respect to Mr Con Balatli, who received a term of imprisonment of four years with a non-parole period of two years. He was convicted of the same offence with a quantity of 4.763 kilograms of amphetamines. However, the drugs involved were not his, but were carried by him on behalf of another offender in a car in which he was arrested. He took orders for a further small quantity of drugs from that same person. I view your offending as more serious than his.
26 I take into account that there has been some delay in the matter being resolved and that that delay has borne upon you an added distress and anxiety.
27 I further bear in mind that any period of incarceration will have a significant effect upon your family, and particularly your parents, who are reliant on you for financial support. Although that effect does not reach the level of “exceptional circumstances” such as to warrant a grant of special mercy, nonetheless the impact of any term of imprisonment upon them is relevant.
28 Your rehabilitation is an important factor to be considered. From the material provided, and the submissions made by your counsel, in my view, your prospects for rehabilitation are strong. You come from a very hardworking immigrant family and the work ethic of your parents has been passed on to you. As a result, although you were involved in a range of businesses, the business in which you are currently in partnership has been successful, at least in part, by your hard work and initiative. I accept that you will return to that business after you complete your term of imprisonment.
29 Further, I was impressed by the support from your family, friends and your community. It is clear that you have very significant support from these persons, which will continue upon your release from prison. It is unlikely, in my view, that you will relapse into drug use and trafficking.
Sentence to be Imposed
30 Taking into account all the matters to which I have referred, I impose the following sentence.
31 On the charge of trafficking in a large commercial quantity of MDMA, you are convicted and sentenced to a term of imprisonment of five years and six months.
32 In view of what I assess as good prospects of rehabilitation, a shorter than normal non-parole period is appropriate. I direct that you serve a minimum period of three years' imprisonment before becoming eligible for parole.
Pre-sentence Declaration
33 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 23 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that this declaration and its details be noted in the records of the Court.
Section 6AAA Sentencing Act 1991
34 Under s.6AAA, I stated that but for your plea of guilty, I would have imposed a total effective sentence of seven years' imprisonment with a non-parole period of four years and six months.
Ancillary Orders
35 I shall make the forfeiture and disposal orders sought by the prosecution. The orders are not opposed.
36 I shall further make the orders sought pursuant to s.464ZF(2) of the Crimes Act 1958 that you undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample. I am satisfied that such an order is justified given the seriousness of the offending, that the order is not opposed and that the granting of the order is in the public interest.
37 I inform you that a member of the police force may use reasonable force to enable that procedure to be conducted.
38 Yes, anything further?
39 MR STEFANOVIC: No, Your Honour.
40 HIS HONOUR: Thank you. Please allow Mr Sakaci the courtesy of speaking briefly to his lawyers and family members. May I say to the people present in the court, it is impermissible to pass any materials to the prisoner in this court of any sort whatsoever. Secondly, if you wish to say anything to Mr Sakaci will you please do so in an orderly manner, one at a time. Please do not rush to the dock at the back of the court, and in all circumstances you must abide the directions of the prison officer at the back of the court and accept what he says. Is that satisfactory, Mr Officer?
41 PRISON OFFICER: Yes, Your Honour.
42 HIS HONOUR: Thank you.
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