Director of Public Prosecutions v Solaymani
[2013] VCC 1394
•20 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00290
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PEJMAN SOLAYMANI |
---
JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September 2013 | |
DATE OF SENTENCE: | 20 September 2013 | |
CASE MAY BE CITED AS: | DPP v Solaymani | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1394 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Breckweg | |
| For the Accused | Ms G Morgan |
HIS HONOUR:
1 Pejman Solaymani, you pleaded to guilty to a charge of possessing two substances, being substances reasonably suspected of having been unlawfully imported and the substance being border controlled drugs, namely opium and (indistinct). The offence having occurred on 19 March 2012. You have no prior convictions.
2 The prosecution has tendered and relied upon a prosecution opening, which is Exhibit A. That has been read recently, I am not going to read it again.
3 On your behalf, I have been provided with two references from a Navid Alinejad and from a Golam Nadli, and also two medical reports or letters, one dated 19 September of this year from the Bulleen Plaza Medical Centre, concerning your wife, and another from Mediclinic Australia Proprietary Limited, Centre Road, Clayton, dated 17 September of this year.
4 I am told that you came to Australia as a refugee and were accepted as such in the year 2000 and that you had been in the process of qualifying as an accountant or in accounting in Iran, before you fled the country, but that you were in a situation of being on a temporary protection visa and you graduated towards house painting and have been employment and/or running a business in house painting for a considerable period of time.
5 Clearly you are a person who is industrious and works hard. That is very much to your credit. You married in 2006, your wife is in court and despite difficulties which have arisen between you as a result of your addiction to opium, it seems that you are well supported by your wife, that she is now happily pregnant and that you can look forward to a child and to being a father to that child.
6 You have no prior convictions and you are a person from the references who is well regarded and a person of good character. It is always unfortunate when people become addicted to any drug. Opiates, as the court well knows, are particularly addictive substances and you have been, it seems, a long term opiate addict with a habit of using opium which goes back to your time in Iran and the context of this offence is that in more recent years, up to the time of your arrest in March 2012, your usage of the drug had increased.
7
Perhaps it was fortunate that you were caught at that particular time and that it has brought you up short and focused your mind upon getting off the drug. Again, it is very much to your credit, I think, that you have sought assistance from your general practitioner and have been on a program,
suboxone drug replacement program since 21 May 2012. I understand that you have been dosing daily, at least in recent times, in accordance with the program.
8 The quantity of opium that you had in your possession was not inconsiderable and was over the minimum marketable quantity. So the offence itself cannot be said to be a trivial offence. It is not argued on your behalf that it was. It is submitted, however, that your character, antecedence, age, health and mental condition, along with the relative lack of seriousness of the offence, it being a possession offence, are such that I should find that it is inexpedient to inflict any punishment or any punishment other than a nominal punishment. It was submitted that that is the kind of sentence that is often imposed in cases under state law, where people are facing charges of possessing drugs of dependence and that perhaps the same reasoning should apply, even though the offence is a Commonwealth offence, where the circumstances are such that there is no close link between the person in possession and the importer of the drug.
9 I am not persuaded that the circumstances are such that it is inexpedient to inflict and punishment or to inflict punishment other than nominal punishment. I recognise that a conviction is a punishment. It is true that it is only a possession charge, but as I say, it is not at the bottom end of the scale of possession I do owe and obligation to punish you appropriately and to pay proper regard to both deterring you from committing further offences of this kind and general deterrence. Whilst recognising that you are clearly a good candidate for rehabilitation and that you have undertaken your own rehabilitation program and largely been successful over a significant period of time now at that program.
10 I am very mindful that it is in the long term interests of the Australian community that your rehabilitation be facilitated as far as it reasonably can by the court. Beyond convicting you, I do not propose to impose punishment. It seems to me that an appropriate order is one that at least has, hanging over your head for a period of time, consequences if you were to relapse into the use of opium and fail to maintain your treatment in order to wean yourself off opium in the longer term.
11 I very much hope that you will succeed in that because I am sure that your wife and family will need you and they will need you drug free and functioning on all cylinders, not just as a functioning opium addict.
12 In the circumstances, I release you without passing sentence on you on your own security of $1,000, to be of good behaviour for a period of 12 months.
13 Are you willing to enter into such an undertaking?
14 PRISONER: Yes.
15 HIS HONOUR: Yes, all right. I convict you as well as imposing that order. No doubt that can be drawn up in the short term.
16 MS BRECKWEG: Yes, it is, Your Honour, yes.
17 HIS HONOUR: And when it is, I will - - -
18 MS BRECKWEG: Did Your Honour wish to impose a treatment condition at all?
19 HIS HONOUR: No, I don't think so. I think this is a case where the offender has shown a willingness.
20 MS BRECKWEG: Yes, Your Honour.
21 HIS HONOUR: He must know that if he fails to maintain his treatment, that he is at risk of being caught again.
22 MS BRECKWEG: Of re-offending. Yes, Your Honour.
23 HIS HONOUR: And if he's caught in the next 12 months, then he will expect severe punishment for any breach.
24 MS BRECKWEG: Yes, Your Honour.
25 HIS HONOUR: Because there would be a breach of the order and if you are in breach of the order, then you can be sentenced again for the offence that I am sentencing you today.
26 MS BRECKWEG: Yes, Your Honour. I have completed - - -
27 HIS HONOUR: And in those circumstances, I think Mr Solaymani hears what I say, that he has got to maintain his own treatment regime.
28 MS BRECKWEG: Yes, Your Honour.
29 HIS HONOUR: Which again, very much to his credit, he has now, it seems, embedded into - - -
30 MS BRECKWEG: Yes, I've - - -
31 HIS HONOUR: All right, so if you have got the order.
32 MS BRECKWEG: I have that, Your Honour.
33 HIS HONOUR: I will just have a look.
34 MS BRECKWEG: Yes, I will just hand that up, Your Honour.
35 HIS HONOUR: Yes. Thank you. Yes, so I will not be passing sentence today on this offence, if you comply with the conditions of the order. All right?
36 PRISONER: Okay.
37 HIS HONOUR: And it is for a period of 12 months, so you have got to make sure that you do not commit any other offences that are punishable by imprisonment during the next 12 months. All right, well I will - - -
38 MS BRECKWEG: Your Honour, perhaps if you could explain to - it's just a minor point to Mr Solaymani - - -
39 HIS HONOUR: Yes.
40 MS BRECKWEG: That he doesn't have to pay the $1,000 - - -
41 HIS HONOUR: Oh yes, I - - -
42 MS BRECKWEG: Yes.
43 HIS HONOUR: I will make that clear.
44 MS BRECKWEG: Thank you.
45 HIS HONOUR: The recognisance of $1,000, to which reference is made, is potentially it is something that you might forfeit if you are in breach of the order, but you do not have to pay it at this stage.
46 PRISONER: Thank you.
47 HIS HONOUR: And if you stay out of trouble for the next 12 months, you will not have to pay it, all right? But it is in there as an added incentive to you to steer a course on the straight and narrow. All right. Well I will sign the order and then I will get you to sign the order.
48 All right, well I make the order that you be released without passing sentence, upon you giving security, which you have done by a recognisance of $1,000 to comply with the following conditions: That you be of good behaviour for 12 months and the order is issued because you were charged with the offence of possessing a border controlled drug. I have convicted you of the offence and I have decided to release you without passing sentence, if you comply with the conditions of the order. Do you understand the terms of the order?
49 PRISONER: Yes.
50 HIS HONOUR: All right. If you had not pleaded guilty to this matter I would have fined you $3,000. Any other orders I need make?
51 MS BRECKWEG: No, thank you, Your Honour.
52 MS MORAN: As Your Honour pleases.
53 HIS HONOUR: All right. Monday. Half past nine. Yes, thank you both.
- - -
0
0
0