Director of Public Prosecutions v Shah
[2024] VCC 1152
•2 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00162
Indictment No. N11053515.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PRAYASS SHAH |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 May 2024 | |
DATE OF SENTENCE: | 2 August 2024 | |
CASE MAY BE CITED AS: | DPP v Shah | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1152 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Trafficking in a commercial quantity of a drug of dependence – Trafficking in a drug of dependence – Possessing a drug of dependence – Knowingly deal with proceeds of crime and intending to conceal – Related summary offences – Plea of guilty following sentence indication hearing – Relevant criminal history – History of substance abuse – History of mental illness – Verdins principles 1, 3, 4 and 5 engaged – Non Australian citizen – Deportation risk – Guarded prospects of rehabilitation
Legislation Cited: Sentencing Act 1991
Cases Cited:Barbaro v The Queen (2012) 226 A Crim R 354 – CD v The Queen [2013] VSCA 95 – Phillips v The Queen (2012) 37 VR 594 – R v Verdins (2007) 16 VR 269
Sentence: 6 years’ imprisonment – 4 year non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M Arceri | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J F Desmond | James Dowsley & Associates |
HIS HONOUR:
1Prayass Shah, you have pleaded guilty to an indictment containing one charge of trafficking in a commercial quantity of a drug of dependence (Charge 1),[1] two charges of trafficking in a drug of dependence (Charges 2 and 3),[2] three charges of possessing a drug of dependence (Charges 4, 5 and 6)[3] and one charge of knowingly dealing with proceeds of crime and intending to conceal that it was proceeds of crime (Charge 7).[4]
[1] Contrary to Drugs, Poisons and Controlled Substances Act 1981 s 71AA(1) (‘DPCS Act’).
[2] Contrary to DPCS Act s 71AC(1).
[3] Contrary to DPCS Act s 73.
[4] Contrary to Crimes Act (‘CA’) s 194(1).
2Additionally, you have consented to this Court dealing with transferred related summary offences comprising one charge of driving at a speed which exceeded the speed-limit by less than 35 km/h (Summary Charge 27)[5] and four charges of possession of a schedule 4 poison;[6] namely, quetiapine tablets (Summary Charge 50), zopiclone tablets (Summary Charge 51), sildenafil tablets (Summary Charge 52) and pregabalin tablets (Summary Charge 53).
[5] Contrary to Road Safety Road Rules 2017 reg 20.
[6] Contrary to DPCS Act s 36B.
3The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years’ imprisonment.[7] The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment.[8] The maximum penalty for possession of a drug of dependence for any purpose relating to trafficking, which is not denied in this case, is 5 years’ imprisonment.[9] The maximum penalty for related Summary Charge 27 is 10 penalty units.[10] The maximum penalty for Summary Charges 50, 51, 52 and 53 is 10 penalty units.[11]
[7] Pursuant to DPCS Act s 71AA(1).
[8] Pursuant to DPCS Act s 71AC(1).
[9] Pursuant to DPCS Act s 73(1)(c).
[10] Pursuant to Road Safety Road Rules 2017 reg 20(1)(a)(i).
[11] Pursuant to DPCS Act s 36B(2).
The facts
4The prosecution filed a summary of prosecution opening for sentence indication dated 23 January 2024, which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.[12]
Interception and search of your motor vehicle
[12] Exhibit (‘Ex’) P1.
5On 26 May 2022 at about 1:45am, First Constable Ronald Medcraft and Sergeant Timothy Ryan observed a white Holden Captiva driving along Banksia Street in Ivanhoe. They followed the vehicle and saw you driving at a speed of approximately 81 km/h in a 60 km/h zone (Summary Charge 27). You were intercepted.
6You produced your Victorian driver licence upon request. When asked if you had previously been involved with police, you admitted you ‘had for drugs’ and said you were undergoing rehabilitation and mandatory drug testing. You also said you had not used drugs for quite some time.
7Medcraft asked if he would find drugs if he searched your car, to which you replied ‘100% no’. You appeared nervous and Medcraft asked you to exit the vehicle. A search of your car was conducted during which a zip lock bag containing 0.3 grams of methylamphetamine was discovered in a console near the steering wheel. You admitted ownership of the bag when it was shown to you. You denied using ice that night.
8In the console Medcraft also found a quantity of cash wrapped in facemasks and a zip lock bag containing 1.4 grams of heroin. You ‘swore’ the money was not the proceeds of selling drugs. A pink case was then located under the driver’s seat which contained two large zip lock bags with numerous smaller zip lock bags filled with powder. The powder was subsequently tested and found to be methylamphetamine, totalling 43.4 grams in weight, of which 35.94 grams was pure.
Search of your home
9At approximately 8am the same day, police attended your residential address in Rosanna. Your wife was home at the time and informed police there were two rooms connected to the garage, one used for storage and the other used by you. Your wife told police you spend the majority of your time in that area and rarely venture into the house.
10During a search of the room used by you, police located the following items:
(a) On a desk, an orange container containing methylamphetamine in the form of crystal residue (Charge 1).
(b) In a drawer of the desk:
(i)7.0 grams of methylamphetamine (Charge 1);
(ii)various quantities of heroin totalling 11.1 grams (Charge 2);
(iii)$600 in cash (Charge 7); and
(iv)scales.
(c) In a black pencil case located in a box underneath the desk:
(i)10.9 grams of methylamphetamine (Charge 1);
(ii)various quantities of heroin totalling 6.4 grams (Charge 2); and
(iii)1.8 grams of cocaine (Charge 6).
(d) In a black box underneath the desk:
(i)various quantities of cannabis totalling 24.5 grams, some of which was wrapped in individual foils (Charge 3); and
(ii)small zip lock bags.
(e) In another desk drawer, a handwritten note evidencing drug transactions.
(f) In a backpack, $10,000 in cash (Charge 7).
(g) Inside a plastic bag on a shelf, a further quantity of cannabis (Charge 3).
(h) In a wooden ‘Yo-Yo’ box underneath the staircase:
(i)a quantity of methylamphetamine (Charge 1);
(ii)a quantity of heroin (Charge 2);[13]
[13] Total heroin located was 22.3 grams (see depositions p 323). Accordingly, this must have been 4.8 grams mixed weight.
(iii)$18,900 in cash (Charge 7); and
(iv)empty ‘deal’ bags.
(i) In a harmonica box underneath the staircase:
(i)234.8 grams of methylamphetamine (Charge 1);
(ii)10.3 grams of cannabis seeds (Charge 3);
(iii)60 diazepam tablets (Charge 4);
(iv)7 oxycodone tablets (Endone) (Charge 5);
(v)0.04 grams of quetiapine (Syquet) (Summary Charge 50);
(vi)9 zopiclone tablets (Imrest) (Summary Charge 51);
(vii)a quantity of sildenafil tablets (Viagra) (Summary Charge 52); and
(viii)3 pregabalin tablets (Lyrica) (Summary Charge 53).
(j) $300,050 in cash located in a shoebox in a green bag.
11The total amount of cash found at your address was $329,550 (Charge 7).
Police investigation
12Forensic accountant, Shaun Taylor, obtained and analysed all of your, and your wife’s, financial accounts. The source of the $300,050 in cash could not be identified.
13The police seized and analysed three mobile telephones that contained text messages consistent with drug trafficking activity. These messages commence in April 2021 and continue to May 2022. However, as I observe later, you are charged with single date drug offences on the basis of possession of for sale and not with ‘Giretti’ trafficking.[14]
[14] R v Giretti (1986) 24 A Crim R 112.
Arrest and interview
14You were arrested and taken to Heidelberg police station for interview. During the first part of the record of interview you told police the following:
(a) You were the registered owner of the vehicle in which you were intercepted by police.
(b) The drugs found in your car belonged to you.
(c) You were going through some ‘personal issues’ and sometimes you used drugs.
(d) When questioned regarding the case containing crystal methylamphetamine hidden under your car seat, you said you kept it there because you ‘don’t keep anything at home’.
(e) You denied selling drugs.
(f) You were smoking ice before police intercepted you and had been parked somewhere in Rosanna.
(g) You used heroin every day.
(h) You were unemployed.
15The interview was suspended to facilitate the execution of a search warrant at your residence, following which the interview resumed. During this second part of the interview you told police the following:
(a) Your wife and daughter lived upstairs and you lived downstairs at the back of the house.
(b) Your wife did not have access to the downstairs area of the house.
(c) Everything in the downstairs rooms belonged to you.
(d) You had a drug problem and used drugs in that part of the house.
(e) Following your release from prison in November 2020, you remained drug free for about 12 months. However, you recommenced using illicit drugs in November 2021.
(f) You had been receiving Centrelink payments until they were cut off and you then ‘hustled’ to buy drugs.
(g) When you purchase drugs, it usually lasts you ‘a few days’.
(h) When shown photographs of what was found in the deck drawer, you admitted the contents were heroin.
(i) You admitted some of the other packages contained ‘ice’.
(j) In relation to the note the police located, you explained you shared drugs with other people in exchange for cash. You also told police that to save money when purchasing drugs, you split the cost with other people.
(k) When shown the bundles of $10,000 cash and $18,000 cash you admitted they represented proceeds from drug sales.
(l) When shown a photograph and asked what it depicted, you responded saying it was ‘ice’ and that you thought there was about 220, 215 or 250 grams. The bags were subsequently weighed by police and contained 256 grams of ‘ice’.
(m) You accumulated the ice over a ‘couple of months’ and it would last you a few months.
(n) When provided a photo of the Yo-Yo box and asked how much money the box contained, you replied, ’19,000 or something’ and admitted it was drug-related. The total figure, as identified by police, was $18,900.
(o) You told police that sometimes people gave you gift cards instead of cash in exchange for drugs.[15]
(p) You agreed there was approximately 250 grams of ice and some heroin at your home.
(q) You estimated the large amount of cash located inside the shoebox amounted to $300,000.[16] You said you obtained this money from investing and selling gold in India and by way of a money exchange system. You were unable to provide any evidence to support this assertion.
(r) You told police you worked for your money, saved and invested it. You wanted to prove yourself and provide a better life for you and your family, which is why you left India and came to Australia.
[15] Seven $50.00 Visa gift cards were located by police which are not the subject of a charge.
[16] In fact, $300,050 was found.
Offence seriousness
16Trafficking in a commercial quantity of a drug of dependence and trafficking in a drug of dependence are serious criminal offences, as indicated by the maximum penalties of 25 years’ and 15 years’ imprisonment respectively. This shows, unambiguously, how seriously the community, through the Parliament views the conduct you have committed in Charges 1, 2 and 3.
17The Court of Appeal has reiterated that the sentencing regime for drug trafficking offences is quantity-based and, while the quantity trafficked is not determinative of my assessment of the objective gravity of the offences, it will always be of importance.[17] All things being equal, the greater the quantity trafficked, the more serious the trafficking offence.[18] Other important indicators of offence seriousness are your role, the duration of your offending and your motivation for involvement in it.[19]
[17] See eg DPP (Cth) v KMD [2015] VSCA 255 [36] (‘KMD’), [64](Maxwell P, Weinberg and Beach JJA); DPP v Fatho and Ors [2019] VSCA 311 [70] (Maxwell P, Priest and Beach JJA) (‘Fatho’); Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1, 7–8 [23]–[24] (Maxwell P, Redlich and Beach JJA) (‘Gregory’).
[18] Fatho [70]. See also Gregory, ibid; DPP v Fernando (2017) 268 A Crim R 26, 38–40 [50]–[55] (Redlich JA); KMD 254 [36], 257 [50]–[52], 260 [64] (Maxwell P, Weinberg and Beach JJA); Adams v The Queen (2008) 234 CLR 143.
[19] Gregory 8 [24].
18It is also relevant for me to consider the harm that is inflicted on the community by offences involving trafficking in drugs of dependence such as methylamphetamine, diacetylmorphine (heroin) and cannabis.[20]
[20] R v Pidoto and O’Dea (2006) 14 VR 269, [45] (Maxwell P, Buchanan, Vincent and Eames JJA); Wong v The Queen (2001) 207 CLR 584, 609 [70] (Gaudron, Gummow and Jayne JJ); R v D’Aloia [2006] VSCA 237, [56] (Nettle JA).
19I recognise Charge 1 is a single date offence and there is no evidence before me of the frequency or regularity of your trafficking, nor is there an allegation you were engaged in ‘Giretti’ trafficking. Nonetheless, you did possess a commercial quantity of methylamphetamine for sale. You possessed a total of 391.6 grams of mixed drugs of which 319.6 grams was pure, a purity of over 80%. This is over six times the commercial quantity threshold of 50 grams (pure). This quantity and purity supports the prosecutor’s submission that I can draw the inference you were motivated by financial gain. However, there is no evidence you acquired significant wealth from your drug related offending conduct or were living a grandiose lifestyle. Moreover, I cannot exclude as a reasonable possibility that at least part of your motivation for selling drugs was to support your own drug habit.
20I also observe, possession of a drug of dependence is a serious enough criminal offence. So far as Charge 2 is concerned, you trafficked, by possessing for sale 22.3 grams of heroin (mixed weight), which is about seven times the traffickable quantity and almost 10% of a commercial quantity. So far as Charge 3 is concerned, you trafficked 27.5 grams of cannabis, which is close to half the ‘small quantity’ of 50 grams.
21Knowingly dealing with proceeds of crime intending to conceal that it was proceeds of crime is also a serious criminal offence. While I cannot make any findings on the available evidence regarding the source of the cash that was located at your premises, I consider this is a serious example of the offence given it involves a large sum of money. Moreover, you have a number of prior convictions for similar offending.
22Clearly, denunciation, general deterrence and just punishment must be given significant weight in sentencing you on Charges 1, 2, 3 and 7.
Personal circumstances
23You were assessed on 11 December 2023 and 16 April 2024 by Carla Lechner, a clinical psychologist engaged by your legal representatives. Ms Lechner prepared a report dated 27 December 2023[21] and a supplementary report dated 26 April 2024,[22] tendered at the plea hearing by your counsel. Your personal history is summarised in those reports.
[21] Ex D3.
[22] Ex D4.
24You were born in June 1984 in India and are currently 40 years old. You came to Australia in 2008 and you are now a permanent resident of Australia, while your family still resides in India. You and your wife share a seven year old daughter together. You reported to Ms Lechner that your marriage is ‘complicated … because [you] keep reoffending’.
25When discussing your childhood with Ms Lechner, you stated ‘it was alright, a bit strict … house rules were strict vegetarian food’. To you, the discipline you received from your parents was ‘over-the-top’ as your mother would ‘make [you] stay outside the house’ and your dad would ‘bash’ you or hold your legs over the balcony. You were particularly scared of your father, but did not report any domestic violence or substance abuse issues between your parents.
Education and employment history
26You told Ms Lechner you were an ‘average’ student with no social or behavioural problems. However, you recalled being bullied because your friends looked down on you for not coming from a wealthy family. As a result, you felt very ashamed. Ms Lechner writes your ‘sense of being “unworthy” is deep-seated and continues to the present’. You also disclosed to Ms Lechner that you were sexually abused in Grade Two or Three, but did not tell anyone for fear of being blamed and further disrespected.
27Eventually you were educated to tertiary level and completed a Bachelor of Accounting.
28In relation to your employment history, you told Ms Lechner that growing up you maintained a strong work ethic and continued to work in your school or university holiday periods. After graduation, you worked in the construction industry for four years. You told Ms Lechner that you moved to Australia ‘for a better future’. You and your wife come from different socio/economic backgrounds, and you told Ms Lechner:
in India we wouldn’t have been able to marry easily … ours was a love-marriage not arranged … her family is wealthier and that would have brought problems.
29You settled in Sydney and worked in a car wash before relocating to Melbourne and working in warehousing from 2008 until 2016.
30You reported suffering a back injury that necessitated surgery and made work challenging. You were supposed to be transferred to office duties upon your return to work, however this did not eventuate. At the same time, your wife was experiencing a complicated pregnancy and was required to visit the hospital three times a week. You had to quit your job to take care of her.
31You set up a courier business in a franchise-type agreement, but your business partner ‘went bankrupt’ and you were left with five vans to run. You lost $110,000 and felt you were failing on every front, triggering symptoms of depression and drug use. Your feeling of inadequacy was reinforced when your in-laws came to Australia and became your responsibility.
32Ms Lechner reports:
He became caught in a cycle of not being able to obtain employment on account of his criminal history, would turn to crime and his employment problems would be magnified.
33You were last released from custody in November 2020 and remained in the community for 18 months. In both of Ms Lechner’s reports, it is observed that you re-entered the community in the middle of the COVID-19 pandemic, struggled to find employment and were eventually ‘cut off’ from your Jobseeker payments. You told Ms Lechner that without a job you lost your self-respect and again experienced a decline in your mood, especially as you were unable to support your wife, who was an essential worker at the time, working in childcare.
Mental health
34You have a long-standing history of depression, beginning in 2016 when you injured your back and faced challenges remaining employed. Ms Lechner writes in her supplementary report:
It is my view that Mr Shah continues to evidence symptoms of depression to the present. This has an adverse impact on his self-esteem, sense of agency and ability to feel hopeful about the future. Depression also has a negative impact on clear thinking, problem-solving, decision-making and judgement.
35You reported to Ms Lechner experiencing the following:
(a) loss of libido, loss of energy and fatigue;
(b) irritability, agitation, indecisiveness and loss of concentration;
(c) loss of interest and pleasure;
(d) a desire but inability to cry; and
(e) feelings of sadness, pessimism, failure, guilt, punishment, worthlessness and self-criticalness.
36During your first assessment with Ms Lechner, you completed the Kessler Psychological Distress Scale (K10) which canvasses indicators of depression and anxiety and a person’s ability to cope over the past four weeks. You received a score of 25 and therefore are ‘likely to be moderately psychologically distressed’. When you undertook the K10 at the second assessment you achieved a score of 29.
37At both assessments, Ms Lechner administered the Beck Depression Inventory, a self-report questionnaire that canvasses a range of psychological and physiological symptoms of depression experienced over the past two weeks. Your score fell in the ‘extreme’ range on both occasions. Ms Lechner opines this result is consistent with a diagnosis of clinical depression and you present with symptoms of major depressive disorder, writing that:
Mr Shah views himself and the world around him through a negative lens. He finds it hard to believe in himself and is constantly comparing himself to others. He seeks affirmation from others rather than seeking it within himself.
38Ms Lechner discusses in both reports, based on your disclosures, that cultural barriers make it difficult for you to seek assistance. You told Ms Lechner that ‘in India there are two sides, rich and poor and you are constantly reminded of where you belong’. You also discussed the stigmatisation of mental health in your culture, explaining in Indian culture:
you don’t talk about depression … there’s nothing wrong with you … you can’t explain or share your feelings with anyone because they don’t understand … people laugh at you, think you’re weak or there’s something wrong with you … if you see a psychiatrist, you must be crazy.
39As part of a previous community correction order (‘CCO’), you were provided with telephone support with a counsellor at Banyule Council. However, you found it tough to ‘open up’. Ms Lechner attributes you failing to seek psychological help to the ‘extremely long’ waiting lists for psychologists during, and after, the COVID-19 pandemic.
Drug and alcohol use
40You told Ms Lechner that there was a period in your life where you were ‘pretty much smoking all day’. You were smoking 3 to 4 grams of Ice per day and about 2 to 3 grams of heroin per day, but if you had more, you would use more. You would also ‘sometimes’ use cocaine and cannabis, but denied using any other illicit drugs. You said to Ms Lechner that you were not taking any prescribed medication.
41As previously noted, in 2020 you were released from custody after being sentenced to a term of imprisonment. After about nine or ten months in the community, your mental health deteriorated and you relapsed into illicit drug use. You consumed Ice and heroin to ‘block’ your thoughts and emotions. When under the influence of drugs you felt ‘lost but happy’. You also felt like you did not need to face or explain yourself to anyone.
42In relation to your offending behaviour, you told Ms Lechner you were selling drugs to support your habit. You reported using drugs frequently at this time. You said you did not know what you were thinking because when under the influence of illicit drugs you tend to lose yourself.
43With respect to alcohol, you said you do not drink every day but when you would drink on the weekend you would consume approximately 4 to 5 glasses of scotch.
44According to Ms Lechner’s initial report, you present with symptoms of stimulant and opioid use disorder which is in remission in a controlled environment. Ms Lechner opines in her supplementary report:
[He] self-medicated with illicit substances as this led to a temporary amelioration in his depression and gave a semblance of external coping, for example giving him energy.
45Ms Lechner further considers:
Whilst Mr Shah’s depression drives his drug use, his drug use and the poor judgement associated with both depression and substance abuse, is inextricably linked with his offending. It is therefore imperative that both issues be the focus of intervention.
Prior criminal history
46You have a relatively extensive criminal history commencing in 2017. In the past you have received sentences of imprisonment on two occasions, and you have been subject to two community-based dispositions in Victoria, one of which you contravened.
47Particularly relevant to the present offending, you have previously been convicted of several drug-related offences, tracing back to your first conviction of this type on 12 November 2018, which related to numerous trafficking in a drug of dependence charges (methylamphetamine, heroin, cannabis, alprazolam, diazepam, buprenorphine, oxycodone and amphetamine). On that occasion, you were also sentenced in relation to dealing in property suspected to be proceeds of crime, negligently dealing with proceeds of crime, carrying a controlled weapon without excuse and possessing a prohibited weapon without exemption or approval.
48The Magistrates’ Court at Heidelberg sentenced you to a 276 days’ imprisonment, which was time served, with a CCO for a period of 15 months. Under the CCO, amongst other conditions, you were required to perform 200 hours of unpaid community work, undergo assessment and treatment for drug abuse or dependency and offending behaviour programs as required. You subsequently breached this CCO and the order was varied to a period of 21 months.
49On 16 July 2020, you again appeared before the Magistrates’ Court at Heidelberg in relation to several trafficking charges and possession of diazepam and a drug of dependence (not named), and negligently dealing with proceeds of crime. You were sentenced to 9 months’ imprisonment and an 18-month CCO, which included the following conditions: assessment and treatment for drug abuse or dependency; mental health assessment and treatment; and offending behaviour programs as directed. On this occasion, it was also proven that you breached the 2018 CCO I detailed earlier. This CCO was cancelled and no further order was made.
50Your counsel helpfully outlined in written submissions that you were released from custody in November 2020 when the CCO commenced. You completed the CCO in May 2022.
Character references
51Character references from your wife, your brother and two of your friends were tendered at the plea hearing.[23]
[23] Ex D5.
52Your wife writes you have been in communication with each other since you were remanded in custody. You admitted all of your wrongdoings to her and have expressed feelings of guilt for how you have impacted the community. Your wife is acutely aware of the difficulties you have faced and believes you became severely depressed as a result of your back injury, your business failings and your inability to be the main provider for your family.
53Your wife is also able to recount your criminal history. Despite the toll your offending has had on her, she still has faith in you and sees you as a good man who has always cared for her, your daughter and your wider family. Your wife is confident that if you receive the proper treatment at a rehabilitation centre, you will not only never turn to drug use again, but you will not be a threat to the community.
54Your brother, who resides in India, was shocked to hear about your offending. He writes that you have been the ‘cornerstone’ of your family. He views you as a mentor who has taught him valuable lessons, both in his professional and personal life, and he has remained in contact with you since you entered custody. He traces the offending back to your back surgery, the loss of your courier business, and your depression, but believes you are capable of being a good person in the community with the right kind of support.
55A friend you have known since you were both in India as children describes you as a kind, hardworking and family oriented person whom he can always rely upon. He recognises the financial pressure you felt when your business failed and attributes this to your offending. Nonetheless, he writes you are responsible, caring and supportive to your family and friends, and he is confident you are capable of making positive changes in your life.
56Your other friend, whom you have known since 2007, also describes you as honest, hardworking, caring and supportive. He cannot believe you committed the present offences, but recognises that you experienced a very challenging period when your wife was pregnant. He says you are a kind-hearted person who deserves an opportunity to be reunited with your family, particularly as your daughter grows older.
Mitigating circumstances
57You pleaded guilty to the present charges on 24 May 2024 following a sentence indication hearing on 14 February 2024.
58Your plea was not entered at an early stage. Nonetheless, it has significant utilitarian benefit and it indicates an acceptance by you of responsibility for your offending conduct. It also indicates a willingness to facilitate the course of justice, by saving the time and expense of the matter running as a trial and avoiding the need for witnesses to attend to give evidence.
59I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you. However, I must decide whether you demonstrate true contrition and remorse for your offending conduct.
60According to Barbaro v The Queen,[24] an offender must satisfy to the court that there is ‘genuine penitence and contrition and a desire to atone’.[25] True remorse is a question of fact and is determined on the balance of probabilities.[26] In many cases the most compelling evidence of remorse comes from the offender’s testimony.[27]
[24] (2012) 226 A Crim R 354 (‘Barbaro’).
[25] Barbaro 365 [38].
[26] R v Cooper (1998) 103 A Crim R 51, 55; R v Gillick [2000] VSCA 127 [20].
[27] Barbaro 365–66 [38], [40]; Bonacci v The Queen (2012) 224 A Crim R 194, 202 [44].
61In CD v The Queen,[28] Harper JA quoted his earlier observations in Phillips v The Queen[29] where his Honour said:
[Genuine remorse] indicates realistic prospects of rehabilitation and a reduced need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy – in the form of a very substantial reduction in what would otherwise be an appropriate sentence – is very likely due.[30]
[28] [2013] VSCA 95 [36] (‘CD’).
[29] (2012) 37 VR 594, 621 [101].
[30] Ibid [97]–[101].
62I have had regard to the comments you made to Ms Lechner during your second assessment. You told her you are regretful and ashamed of your offending and after being in custody for quite some time, you can see using drugs leads to ‘silly decisions’, letting people down, and losing trust. You can now see people who have used drugs are unsafe and unhealthy.
63However, this is not sufficient to make a determination that you are genuinely remorseful and demonstrate true contrition, and I will balance the weight I give Ms Lechner’s reflections in this respect accordingly. However, I do accept you are gaining insight into the causes of your offending conduct, which augers well for your prospects of rehabilitation, if you can remain drug free upon your release from custody.
Risk of deportation
64You are not an Australian citizen. At the sentence indication hearing, your counsel submitted the burden of imprisonment is more onerous in your case owing to the prospect of you being deported following serving your sentence.
65Without speculating as to the likelihood you will be deported, I accept the uncertainty associated with the prospect of deportation once you are sentenced to imprisonment for a term of 12 months or more, as you will be, may well mean you will serve your sentence more onerously. I take this into account in your favour.
66You have resided in Australia for 16 years. You have strong and enduring family ties to Australia, particularly as your wife and daughter live here. By reason of committing these offences, you may lose the opportunity to continue to forge a life in Australia. The authorities accept this is a form of extra-curial punishment, which I also take into account in your favour in sentencing you for this offending.[31]
Application of Verdins principles
[31] Guden v The Queen (2010) 28 VR 288; Magedi v The Queen [2019] VSCA 102 [47], [55]–[60] (Maxwell P and Weinberg JA); Nguyen v The Queen (2016) 261 A Crim R 1, 15–16 [35] ((Redlich JA, Whelan JA agreeing); Allouch v The Queen [2018] VSCA 244 [39] (Beach and Weinberg JJA); Loftus v The Queen [2019] VSCA 24 [65], [79] (Whelan and Niall JJA).
67Your counsel submitted Verdins principles 1, 3 and 4 are engaged in your case.[32] The prosecutor conceded that it is ultimately a matter for the court, however she submitted that if I accept these principles apply it would be only to a moderate degree.
[32] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
68To support his submission, your counsel primarily relied on the following opinions of Ms Lechner, which I have already referred to in detail:
(a) You have a long-standing history of depression.
(b) You present with symptoms of substance use disorder and major depressive disorder.
(c) Your drug addiction is a result of persistent symptoms of depression and has been a form of ‘self-medication’.
(d) The combination of depression and drug addiction has adversely affected your cognitive functioning, including your executive functioning skills. This impairment would have been operational before, during and after the period of your offending, and is a significant contributing factor to your poor decision-making and judgment.
69Ms Lechner has posited a causal nexus between your mental functioning and this offending. I accept Verdins principle 1 is engaged in your case to reduce your moral culpability to some extent and to cause me to moderate the weight I would otherwise have given the principle of denunciation in respect of the drug-related offending. I also accept Verdins principles 3 and 4 are engaged to a limited extent in your case in relation to the drug-related offending. The proceeds of crime offence falls into a different category as I am not satisfied your mental health conditions are causally connected with, or are explicable of, that offending conduct.
70Moreover I accept to some degree Verdins principle 5 is engaged in your case because the state of your mental health may mean the sentence I impose on you will weigh more heavily on you than it would on a person in normal mental health.
Rehabilitation
71You have used your time whilst on remand profitably. At the plea hearing, your counsel provided me with two statements of results showing you have successfully completed study units that count towards a Certificate I in Access to Vocational Pathways and a Certificate II in Kitchen Operations.[33] I was also provided with a certificate attesting to your successful completion of the 3-hour AOD and Relationships Program. Ms Lechner also noted in her report that you completed the ‘Ice and me’ program.[34]
[33] Ex D7.
[34] Ibid.
72Moreover, a negative random drug screen tendered at the plea hearing demonstrates you were drug free at the time of testing on 14 July 2023.[35]
[35] Ex D6.
73Despite the progress you have made whilst on remand, which is to be commended and encouraged, I assess your prospects of rehabilitation as being somewhat guarded. Given the scale and nature of the present offending and your relevant prior criminal history, which has included rehabilitative CCOs, much will depend on your ability to remain drug free upon your release from custody.
74I have had regard to the Mental Health CCO Screening Program document dated 16 July 2020,[36] the CCO varied on 8 January 2020,[37] the Contravention Report dated 28 February 2020[38] and the CCO Assessment Outcome Report dated 16 July 2020,[39] all of which were tendered by the prosecutor at the plea hearing.
[36] Ex P4.
[37] Ex P8.
[38] Ex P9.
[39] Ex P10.
75Your rehabilitation will depend on your ability to control your drug habit and develop positive coping strategies following your release from custody. It will be necessary for you to disassociate from your former criminal lifestyle and develop a more productive attitude and lifestyle, particularly in relation to treatment of your mental health. Your wife and daughter should be strong protective factors in this regard.
Application of sentencing principles
76I have had regard to current sentencing practice in relation to these offences as informed by the decisions of the High Court of Australia in R v Kilic[40] and DPP (Vic) v Dalgliesh (a Pseudonym)[41] and the Victorian Court of Appeal decisions in DPP v Zhuang[42] and DPP (Cth) v Thomas.[43] In particular, I have had some regard to the so-called comparable cases referred to me by the prosecutor.[44]
[40] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[41] (2017) 262 CLR 428,444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[42] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[43] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
[44] Ex P3.
77While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[45]
[45] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
78Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
79The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors including the seriousness of the offences, your culpability for them and your personal circumstances.
80I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
81Clearly denunciation, general deterrence and just punishment must be given significant weight in sentencing you for these offences. Moreover, I consider weight also needs to be given to specific deterrence particularly given the nature of your offending conduct and your relevant prior criminal history.
82I must also give real weight to protection of the community as this is the third time you have faced similar charges and you have had numerous opportunities to reform.
83As I observed earlier, I assess your prospects for rehabilitation as being somewhat guarded, however, if you engage in services aimed at treating your substance use and mental health, those prospects may be more encouraging.
84Trafficking in a commercial quantity of a drug of dependence is a category 2 offence under the Sentencing Act 1991.[46] This means, some irrelevant exceptions aside, a sentence of immediate imprisonment must be imposed for this offence.[47] As your counsel accepted, it is beyond argument that the only appropriate sentence on Charge 1 must be a sentence of imprisonment with a non-parole period being fixed on the total effective sentence.
[46] Sentencing Act 1991 (‘SA’) s 3 definition of ‘category 2 offence’ paragraph (g).
[47] SA s 5(2H).
Stand up Mr Shah
On Charge 1 (trafficking a commercial quantity of a drug of dependence – methylamphetamine) you are convicted and sentenced to imprisonment for 4 years and 6 months.
On Charge 2 (trafficking a drug of dependence – diacetylmorphine (heroin)) you are convicted and sentenced to imprisonment for 1 year and 6 months.
On Charge 3 (trafficking a drug of dependence – cannabis L) you are convicted and sentenced to imprisonment for 1 day.
On Charge 4 (possessing a drug of dependence – diazepam) you are convicted and fined $300.
On Charge 5 (possessing a drug of dependence – oxycodone) you are convicted and fined $300.
On Charge 6 (possessing a drug of dependence – cocaine) you are convicted and sentenced to imprisonment for 7 days.
On Charge 7 (knowingly dealing with proceeds of crime and intending to conceal that it was proceeds of crime) you are convicted and sentenced to imprisonment for 2 years.
On Summary Charge 27 (exceeding the speed limit by less than 35 kp/h) you are convicted and fined $400.00.
On Summary Charge 50 (possessing a schedule 4 poison namely Quetiapine tablets (Syquet)) you are convicted and discharged.
On Summary Charge 51 (possessing a schedule 4 poison namely Zoploclone tablets (Imrest)) you are convicted and discharged.
On Summary Charge 52 (possessing a schedule 4 poison namely Sildenafil tablets (Viagra)) you are convicted and discharged.
On Summary Charge 53 (possessing a schedule 4 poison namely pregabalin tablets (Lyrica)) you are convicted and discharged.
I order that 6 months of the sentence imposed on Charge 2 and 1 year of the sentence imposed on Charge 7 be served cumulatively on the sentence imposed on Charge 1 and with each other. All other sentences of imprisonment are to be served concurrently.
This makes a total effective sentence of imprisonment for 6 years.
I order you serve a minimum of 4 years’ imprisonment before being eligible for parole.
I declare 799 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
Pursuant to s 6AAA of the Sentencing Act 1991 I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of 7 years’ imprisonment with a non-parole period of 5 years.
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