Director of Public Prosecutions v Steinarsson

[2019] VCC 799

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00531

DIRECTOR OF PUBLIC PROSECUTIONS

v

HELGI HEIDAR STEINARSSON

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2019
DATE OF SENTENCE:	31 May 2019
CASE MAY BE CITED AS:	DPP v Steinarsson
MEDIUM NEUTRAL CITATION:	[2019] VCC 799

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Import a marketable quantity of border controlled drug – Cocaine.

Sentence:Total effective sentence of six years and three months imprisonment, with a non-parole period of four years imprisonment. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. K. Breckweg (To Plead) Ms. N. Schmitz (Sentence)	Office of Public Prosecutions
For Accused Steinarsson	Ms. E. Ramsay (To Plead) Ms. E. Allan (Sentence)	Victoria Legal Aid

HIS HONOUR:

1Helgi Heidar Steinarsson, on 29 May 2019, in the County Court at Melbourne, you pleaded guilty to the following charge on indictment No.CR-19-00531:

Charge 1, import of marketable quantity of a border-controlled drug.  That drug was cocaine.  This charge has a maximum penalty of 25 years' imprisonment and/or 5000 penalty units. 

2You are to be sentenced at the same as Brynjar Smari Gudmundsson.  You are not strictly co-accused with him. 

3The prosecution case is that both of you are drug couriers acting independently of each other for the same drug syndicate. Due the underlying commonality of the offending that included you both being young Icelandic nationals and the travel arrangements that were undertaken by both of you, were as follows:   

(a) You both departed Frankfurt on the same day, time and flight;

(b) You both had the same interconnecting destination of Hong Kong;

(c) You both had the same ultimate destination that was Melbourne, Australia;

(d) That the purported reason for both of your travel was for a ‘holiday’;

(e) Both of your hotel accommodation, originally the Victoria Hotel and the Ibis Hotel, were booked on the same day, that is 2 November 2018, from Iceland, using the same website, and

4(f) That you were both scheduled to depart Melbourne, Australia, on 17 November 2018 on Cathay Pacific Airlines flight No.CX104 to Hong Kong.  You both further scheduled to depart Hong Kong to Frankfurt on Cathay Pacific flight CX289 on 18 November 2018. 

5You were both carrying the same drug, which was cocaine and the way in which the drugs were supplied to you both, were as follows:

6(a) In a Delsey suitcase;

7(b) In the same form of concealment, including a false floor and use of silver screws in the bottom of your case;

8(c) The drugs were contained within two packages;

9(d) The cocaine was wrapped in the same type of drug wrappings “CIS Filme Carbono”.

10The commonality of the features of your offending arises from your criminal master's rather than your actions. 

Circumstances of your offending

11On 3 November 2018, you checked into flight CX288 on Cathay Pacific Airlines to Hong Kong from Frankfurt in Germany.  You checked in baggage of one Delsey branded suitcase.  On 4 November 2018, at 10.25 am you departed Hong Kong on Cathay Pacific flight CX163 to Melbourne, Australia. 

12On 4 November, 2018, at 10.35 pm you arrived at Melbourne International Airport in possession of a black Delsey suitcase.  You were not the subject of a baggage examination.  On your incoming passenger card you declared that you were in Australia for a holiday and you would be staying at the Victoria Hotel located at Little Collins Street in Melbourne. 

13On 4 November 2018, at 11.48pm, you checked into the hotel at Victoria Street for a period of four nights (4 to 8 November 2018).  At the time of checking-in, you were in possession of a black Delsey suitcase.  You then did not check out of the hotel.  Victoria Hotel staff subsequently checked you out on 8 November 2018, when you did not extend your booking. 

14Unbeknown to you, Mr Gudmundsson was intercepted at the Tullamarine Airport by Australian Border Force officers.  Due to your similar flight movements, the Australian Federal Police (“AFP”) were notified of your stay in Australia. 

15On 5 November 2018, at 12.52pm, you left the Victoria Hotel with the black Delsey suitcase and checked into the Fraser Place Hotel, located in 19 Exploration Lane in Melbourne, for two nights, being 5 to 7 November, 2018.  You did not pre-book this room and you just paid for it in cash. 

16On 5 November 2018, at 7.10pm, the AFP entered your room, No.206 at the Fraser Place Hotel and arrested you.  You were the sole occupant of the room. 

17A frisk search of you located a black Leatherman-branded knife concealed in your underwear.  This knife had been purchased earlier in the day at Aussie Disposals in Elizabeth Street and paid for in cash. 

18It is the prosecution case that your movements from the Victoria Hotel to the Fraser Hotel constituted anti-surveillance tactics.  It is further the prosecution's case that you purchased the Leatherman knife to protect the drugs in your possession.  I have something to say about that later.

19At the time of your arrest, police also seized the following:

1)  a black Delsey branded suitcase;

2) Samsung mobile phone;

3) $1250 in Australian dollars in $50 denominations;

4) Two Tomcat 3 watt LED work lights;

5) An Aussie Disposal receipt for the Leatherman knife, and the Tomcat 3 watt work lights;

6) A piece of paper with two handwritten names and telephone numbers “Porger” and “Stefan Karl” located inside your wallet; and

7) A Victoria Hotel key card.

20Police conducted a further examination of the black Delsey suitcase and identified a false bottom containing two packages of cocaine. 

21Subsequent National Measurement Institute analysis established the two packets contained in your suitcase contained a total of 1,523.4 grams of pure cocaine. A marketable quantity of cocaine is two grams. 

22The wholesale value of your cocaine, or the cocaine in your suitcase, was between $437,500 and $600,000.  The street value of the cocaine is between $914,000 and $1,218,720 million.  It had a potential of generating 3,046.8 individual doses.

23I note at this point, that the amount of the pure cocaine in your possession is 75 per cent of the commercial quantity or 762 times the applicable marketable quantity. 

24After the arrest, you exercised your right to make a no-comment record of interview with police.  You have no prior criminal history.  At the day of the sentence you would have spent 207 days in pre-sentence detention. 

Personal Circumstances

25You were 30 years old at the time of the offending.  You have recently celebrated your 31st birthday in prison.  For the purposes of the plea hearing in this case, you were examined by Mr Jeffrey Cummins, a forensic psychologist.  Mr Cummins's report, dated 13 May 2019 was Exhibit “S3” on the plea.

26In Mr Cummins's opinion, you meet a diagnosis for depression.  He noted that you were medicated whilst in custody on anti-depressants, Mirtazapine and Sertraline and a mood-stabiliser of Strattera. 

27I note in a report of Dr Thorsteindotter, psychiatrist, dated 13 November 2018, that he was treating you between May and October of 2018 for anxiety and depression.  You have a documented history of Dysthymia and ADHD. 

28You have been raised in a loving and supportive family.  Your mother, father and two sisters have travelled to Australia from Iceland to support you at these court proceedings.  Your sister gave evidence in this case about your loving and generous nature, together with a history of your psychological problems.  Your education progressed to university level.  Your depression became evident whilst you were studying to commence Law.  You did not pass the entrance exam for law. 

29Between 2008 and 2011, you were enrolled at the University of Iceland.  That was Exhibit “S7”.  Prior to that you were successful in your matriculation exam graduating in Physics. 

30In the three years prior to this offending, you had been employed as a supervisor in restocking supplies in Olgeroin.  You also worked in a company warehouse of Eirberg.  You were described as a good employee and that comes from a reference tendered as Exhibit “S5” in the plea.

31In the short time before your offending, you became involved in a relationship with a dependent drug-addicted woman.  You spent your savings on drug purchases for her and yourself.  Ultimately, you ran up a debt to the extent of nine-thousand to $10,000 in value to your drug suppliers.  In order to extinguish this debt, you were offered to do what you described as a 'bag-drop.'  You accepted this offer and the execution of your part of the deal is the offence now before the court. 

32In your sister's evidence, and the joint family references which are all part of Exhibit “S8”, your family state you were a person of good character and that you will return to Iceland to be a law-abiding citizen. 

Sentencing Considerations

33They are the same as Mr Gudmundsson, but I am going to read them out to you as they also apply to you.

34The most significant consideration when sentencing a federal prisoner such as yourself is s.17A of the Crimes Act which provides as follows: 

'The court shall not pass a sentence of imprisonment on any person unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.'

35A term of imprisonment is the only appropriate sentence for your offence.

36Section 16A of the Crimes Act sets out a non-exhaustive list of factors a court must take into account and take into consideration when sentencing a federal offender such as yourself.  There are many factors I must take into account when sentencing you which are set out in the Act.  These factors include:

(a) The nature and circumstances of your offence;

(b) If your offending forms part of a course of conduct by you;

(c) Any injury, loss or damage resulting from the offence;

(d) The degree to which a person has shown contrition for the offence. In your case, remorse has been set out in Mr Cummins's report.

(e) You pleaded guilty to the offence and at an early stage;   

(f) That the deterrent effect of any sentence or order under consideration may have on you, that is, specific deterrence on you;

(g) The deterrent effect any sentence or order may have under consideration on other like-minded people to bring drugs into this country.  That is, general deterrence;

(h) The need to ensure you are adequately punished for your offending;

(i) Your character, antecedents, age, means, physical and mental condition;

(j) The prospect of your rehabilitation;

(k) The probable effect any sentence or order under consideration, will have on your family. 

37As I have said before, you pleaded guilty to this charge, your plea was indicated at the earliest stage, your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and the resolution of the substantive issues raised by your offending. 

38Your plea allows for the preservation of the court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community here in Australia. 

39Your plea also is a clear indication and acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises that you are willing to facilitate the course of justice in this community, and I accept that your plea to this charge indicates and demonstrates remorse on your part.

40Your plea of guilty in this case is of particular significance, due to the number of witnesses and the complexity of the evidence that would have been required to be called in a trial of this manner.

41You have no prior convictions in your home country, Iceland.  You are educated with a proven capacity to learn.  You have the love and support of a close-knit family.  I note your statement to Mr Cummins, you had said; 'I learnt my lesson' and you will never use illicit drugs again.  Further, whilst you have been in custody on remand, you have engaged in courses and you have a job in horticulture.  I assess your prospects of rehabilitation as good. 

42You have been abstinent in the period of incarceration and have returned negative results on the drug screen here.  I accept that your depressive condition will make your time in custody more burdensome than for a person with normal mental health.  I also accept that any time that you have and will spend in custody, will be more difficult for you because you are in a foreign country and consequently, few if any, visits will be from your family whilst you are incarcerated.

43I take these factors in combination and consideration when fixing a just sentence for you.  It is expected that you will be deported immediately after your sentence of imprisonment has been completed.

44In sentencing you, I must have regard to the current sentencing practices.  This is but one factor I am required to take into account, and your case is different from every other case, as they are from one another.

45In order to obtain some national sentencing consistency for this type of offending, I have regard to the decisions of the intermediate appellate courts in all States and Territories in Australia.

46The use of comparable cases is to assess a yardstick to illustrate the range of sentences, but not to define those sentences with any mathematical precision. 

47The relevant factors to take into account when assessing the seriousness of the charge in your offending are as follows:

48(1) The amount of pure cocaine was 1.5234 kilogram.  This amount is 762 times the marketable quantity, but also 75 per cent of a commercial quantity under the legislation;

49(2) The evidence in this case is that you knew that you were importing a drug into Australia, but not which drug, nor how much of that drug that you were carrying in your suitcase;

50(3) I do not accept the Crown's submission that your purchase of the Leatherman knife is a basis to infer you knew the amount of the drugs was a significant quantity;

51(4) The benefit that you were to receive was the extinguishment of your drug debt to your drug dealers in Iceland to the extent of nine-thousand to $10,000 in Australian value, and that is your benefit;

52(5) Your role as a courier, that involved all of the following actions;

(i) That you were taking possession of a suitcase containing a marketable quantity of the border controlled drug, in this case, cocaine;

(ii)  That you organised the flights and the hotel accommodation;

(iii) That you checked your Delsey suitcase concealing the two bags of cocaine;

(iv) That you boarded a series of international flights over several days to get here;

(v) That you falsely declared the purpose of your travel on arrival as a holiday; and

(vi) That you falsely declared that you were not carrying prohibited goods,

53(6) Your sole reason for travel to Australia was to deliver the drugs and leave; and

54(7) the harm that drug that you imported, that is, cocaine, does to the Australian community. 

55The principles of general and specific deterrence, just punishment and protection of the community dictate that a term of imprisonment with a non-parole period, is the only appropriate sentence in your case. 

56Would you stand please?

57On Charge 1, you are convicted and sentenced to six years and three months imprisonment.  I fix a non-parole period of four years imprisonment.  I declare that you have served 207 days pre-sentence detention. 

58Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty I would have sentenced you to eight years and six months with a non-parole period of six years.  Is there anything else. 

59MS SCHMITZ:  No, Your Honour.

60HIS HONOUR:  Thank you.

61MS SCHMITZ:  Just for the record, I think when Your Honour was reading out the facts in relation to Mr Steinarsson you said 1526.4 kilograms.  It's grams.  Just to - yes just to ‑ ‑ ‑ 

62HIS HONOUR:  No, absolutely.  I will go back and make sure I have got the right amount.

63MS SCHMITZ:  That's right, it is grams, 1526.4 grams, and the marketable quantity is two grams, not 250.  Just to make that clear on the transcript.

64HIS HONOUR:  I think I got the grams right in the end I think, so there we go.  Is everything right as far as your client's concerned, Mr McGrath?

65MR MCGRATH:  Yes, Your Honour. 

66HIS HONOUR:  Other than the fact he has got to serve a sentence.

67MR MCGRATH:  Yes.

68HIS HONOUR:  Yes, thanks.

69MS ALLAN:  Thank Your Honour.

70HIS HONOUR:  Yes, thanks. 

71Just before you two blokes are taken back to prison, you are young men.  You will not be so young when you are released, but you go back to Iceland and you live a productive life back there.  You tell everyone over there that you see, including any Germans you see when you are passing through Frankfurt, if they want to come to this country with a suitcase of drugs in it, we will lock them up.  Thanks.  You can remove the prisoners.

72MR MCGRATH:  Your Honour, I have got this - you can remove the prisoners - just for Your Honour's information.

73HIS HONOUR:  Yes, sorry, do you want them back?

74MR MCGRATH:  No. 

75HIS HONOUR:  Yes.

76MR MCGRATH:  I will speak to my client's family and also just by way of, for Your Honour's benefit, I might be assisted by a member of counsel who is present in court who spent six years in Iceland in the 1970s and ‑ ‑ ‑ 

77HIS HONOUR:  All right, is that you?

78MR MCGRATH:  No, I'm not that old, Your Honour.  No, Ms Gleeson of counsel is present in court and speaks fluent Icelandic so I will convey the process form here and if my Icelandic is not up to scratch I might rely on her. 

79HIS HONOUR:  All right.

80MR MCGRATH:  I will speak to my client as well.

81HIS HONOUR:  Thanks.

82MR MCGRATH:  I saw my client this morning Your Honour.

83HIS HONOUR:  Yes, okay, what I was going to say is on both of their - when I send out the orders, I am going to mark on it, custody management issues because of the two psych reports.

84MR MCGRATH:  Yes.

85HIS HONOUR:  And I will include - sorry I will send to the Corrections - those two psych reports so I know, for example, Dr Cummins or Mr Cummins, in respect of Mr Steinarsson, at paragraph 35, said things might just go downhill really quickly. 

86MR MCGRATH:  I will explain the process to my client's family, about the fact that the Correctional facilities will receive all that information. 

87HIS HONOUR:  Just so that they are watched for the first couple of days.

88MR MCGRATH:  Yes, Your Honour.

89HIS HONOUR:  If not much longer than that.

90MR MCGRATH:  Yes, Your Honour.

91HIS HONOUR:  I want to thank counsel and those that instruct them for their assistance and Ms Gleeson for her interpretation when it has to take place.  Thank you. 

92To the family members, this is tough news but stay in contact with your brothers or sons and encourage them, because when they get back to your homeland, they will have something to do.  Thanks. 

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