Director of Public Prosecutions v Tanko

[2017] VCC 582

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00373

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARIBA TANKO

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 May 2017
CASE MAY BE CITED AS:	DPP v Tanko
MEDIUM NEUTRAL CITATION:	[2017] VCC 582

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Keks
For the Accused	Ms E. Murphy

HER HONOUR:

1Garibo Ishmael Tanko Abdulahe, you have pleaded guilty before me to one charge of importing a marketable quantity of a border controlled drug.  The maximum penalty for that offence is 25 years' imprisonment.  The facts were opened by the prosecution and a summary of the prosecution opening was tendered as Exhibit A on the plea.

2In brief, you arrived at the Melbourne International Airport on 18 November 2016 and declared that you were not bringing any prohibited items into Australia on your incoming passenger card.  You were selected for a baggage examination and during that examination you answered various questions put to you inconsistently as to who had purchased your ticket, and as a result of that, you were requested to undergo a non-medical internal body scan.

3You consented to the scan and the results led you to undergoing a record of interview, and while awaiting your requested legal advice, you consented to accompany the Australian Federal Police to the Melbourne Royal Hospital to undergo an internal body search.

4The consequent scan revealed a large number of foreign objects in your abdominal cavity.  You were admitted to the Royal Melbourne Hospital under police guard and between 18 November and 21 November 2016 you passed some 68 white plastic covered pellets.  You were discharged from the hospital on 22 November 2016 and arrested.

5On 16 December following an earlier incomplete interview, officers attended at the Metropolitan Remand Centre to conduct a record of interview, however you withdrew your consent to that interview and it did not occur.

6The quantity of drugs on analysis was found to compromise 79.9 per cent pure cocaine which amounted to 698.2 grams of the total weight of the substance which was 874 grams.  This quantity of pure cocaine relates to approximately 349 times the marketable quantity or 35 per cent of a commercial quantity.

7The value of the cocaine is estimated as being between $249 and $340,000 with a street value of between $697 and $930.  So it's of considerable value.

8You are 37 years old with no criminal history.  You are a Spanish national and you pleaded guilty on 1 March 2017 at your committal mention at the Melbourne Magistrates' Court.

9This is very serious offending against which a constant battle is being fought in this country and clearly general deterrence is a large factor in any sentence that I will impose on you.

10It appears that you were used by others as a means of transporting their wares into this country for sale and no doubt to make an enormous profit.  You were to receive some US$5000 for your considerable risk, both to your health and to ending up precisely where you are.

11As to your personal background, you were born into a large family in Ghana, brought up in circumstances where your father worked as a driver to support his eight children.

12You attended primary school and were educated in English.  However you did not undertake any secondary schooling.  You married in Ghana and shortly after that you went to Spain on a work visa.  You hoped to find work in order to support your parents, your sisters, your wife and any children that were to come from your marriage.

13You obtained work on a farm and later moved to Barcelona where you worked in a warehouse in relation to machinery.  You lived in reduced circumstances and shared accommodation with other African men and sent most of your income back to Ghana to support your family.  You eventually obtained permanent residency in Spain and finally Spanish nationality in about 2015.

14You have, through these years, remained very close to your family and you now have four children, aged from 15 down to 2 years.  You have during most of the period before travelling to Australia, resided in Spain working and supporting your family by sending funds to Ghana and travelling back to Ghana once or twice a year.  It has been the hope of you eventually obtaining visas so that you could take your family to Spain.

15You are constantly worried about your family now, that they have been deprived of the income that you earned.  While in prison you are unable to contact your wife as you have no source of income whatsoever and you need to be able to pay for calls to her in Ghana.

16An addition to the psychological difficulties that you are experiencing which have been dealt in the psychologist's report prepared by Pamela Matthews, forensic psychologist, your physical health has deteriorated whilst you have been in custody.

17To that end, you have had an investigation into the pain radiating from your hips and the outcome of that is that you need a total hip replacement on the right side.  You first noticed pain from years ago when you played a lot of football which became gradually worse and in the end, affected your ability to work and it appears to have further deteriorated during the time you have been in custody.

18An MRI scan conducted in April 2017 indicates an erosive arthropathy of both hips with likely avascular necrosis.  You are likely to go on experiencing severe pain until a hip replacement on the right hip can be carried out.

19The report of Pamela Matthews to which I have referred contains further explanation; a diagnosis of degenerative hereditary hip condition whilst during the time you were in Spain.  At the end of the time you were in Spain, you told Pamela Matthews, according to her report, that you were finding it more and more difficult to find work and indeed to work at all.  This has caused you great anxiety over quite a period of time in regards to your own well-being but in particular, to your family in Ghana where you have always been responsible for the expenses of the children.

20You told Ms Matthews that as you are unable to raise the money for private surgery, you would have been on a list for many years for public surgery, and in this context, someone you worked with suggested you may be able to raise the money for private surgery by acting as a drug courier.

21You have indicated and maintained that you had no knowledge of the actual contents of the pellets you swallowed or the nature of the drugs they contained.  However you knew that you were to be transporting drugs.

22As a result of your arrest, your anxiety in relation to your family has been exacerbated and your hip, for which you hope to obtain funds for surgery, has continued to deteriorate.  You are now walking with the aid of two crutches.

23The report of Pamela Matthews tendered as Exhibit 2 and the outline of submissions by your counsel was tendered as Exhibit 1.  Ms Matthews gives a thorough account of your background and youth, your experience in the Australian prison system and your various health problems.

24As to your mental health, Ms Matthews reports that your mood was anxious and depressed, however you were a coherent historian.  She reports that you were pre-occupied by your own physical pain and your concern for your children.  She indicated that you seemed to have some difficulty with your historical memory however it may well be affected by the current medication regime that you are on, and your insight may be limited by your level of education.

25Ms Matthews concludes that your mental health is not an issue of great concern.  In her opinion, your depression and anxiety is not sufficient to be considered a major depressive episode, but would meet the diagnostic criteria for an adjustment disorder with mixed features and persistent stressors.

26She also expresses the opinion that your separation from your family, the lack of any supports in Australia and the mental health that you are undergoing is unlikely to resolve readily and she concludes that your time in custody is likely to be more onerous in your case than for other prisoners not suffering from these handicaps.

27She has made some recommendations for your ongoing stay in prison.  She recommends contact you made with the Ghana community in Victoria to facilitate visits and contact with your family if you are to remain for much longer.

28Ms Matthews further offered the opinion that as a non-citizen, you would be entitled to surgery once your needs became an emergency although some costs may still be involved.  She may made recommendations about the involvement of the Commonwealth Department of Human Services and Health or the Commonwealth Department of Immigration and I am just reporting those because they are contained in the actual report.

29The ongoing unrelenting pain now falls within the diagnosis of somatic symptom disorder and Ms Matthews is of the view that your presentation meets that diagnosis and over a long period of time your own resulting psychological disorder can only render your time in custody more difficult.

30Your mental health condition will most likely resolve once you are able to do something about the physical pain and she says that that is unlikely to resolve until such time as you undergo a hip replacement for the physical pain and or you are sent home.

31I take that opinion of Pamela Matthews expressed in her report very much into account in considering what sentence is appropriate in this matter.

32Mr Abdulahe, I now turn to the relevant sentencing principles and matters which I need to take into account in sentencing you. These matters are set out in s.16A(2) of the Crimes Act [1914] and I take into account those which are applicable to your circumstances.

33In relation to the nature and circumstances of your offending, they are objectively serious in terms of criminality.  Driven by your medical condition and pain, you deliberately set out to engage in transporting drugs to Australia.  You have, as I indicated, offended against the law which is designed to protect against the profit of an importation of illicit and harmful drugs into this country and the release of drugs into the community which fuels a criminal market and wreaks havoc in the lives of those who purchase and use the drugs, also with their families and in the community generally.

34Although not referred to in the Commonwealth legislation, clearly general deterrence is of the utmost importance in cases such as yours, importing drugs into this country.

35I further take into account your plea of guilty at the first possible opportunity and I take that as some evidence of contrition or remorse.  However your concern for your own grievous situation and that of your family dominates any remorse you do have for your offending and perhaps any insight you may have into the damage that the importation that these drugs does to the community in Australia.

36I am satisfied that any sentence I pass in relation to this offending will have a considerable deterrent effect on you and I am satisfied that you have at this point, been sufficiently deterred on a personal basis from committing such offences in the future.

37I take into account your co-operation once apprehended, in that you consented to an internal examination and I accept, as there has been nothing to the contrary argued, that you are unable to provide any usual information about persons involved in this operation in Australia.

38I further take into account of course, that you must be adequately punished for your offending and given your physical disability, your isolation and inability to contact your family, any term of imprisonment that I impose will represent a severe form of punishment to you.

39I take into account your prospects of rehabilitation and I consider them excellent in light of the evidence, that you have no criminal history at all and have been a hardworking person with numerous dependants for most of your adult life.

40I also take into account the probable effects of any sentence that I impose may have on your family and your dependents.  Clearly on the evidence available to me, your family has been left without their main supporter and the present status of your family is unknown.

41I take into account current sentencing practices.  I was provided with a number of authorities which varied hugely in range of sentences and I take them into account to the extent in which they are referrable to your case.

42I have applied the principles set out in Nguyen v The Queen and Phommalysack, together with those set out in the Crimes Act in determining your sentence.

43In all the circumstances of this case and having balanced the matters on your behalf against the seriousness of the offending, the matters put on your behalf against the seriousness of the offending, I have concluded that the only option of course is to impose a term of imprisonment but that the duration of that term of imprisonment should be reduced to reflect the combination of difficulties which confront you.

44There are two factors which I consider.  Firstly, although your family situation does not get over that high hurdle of exceptional circumstances in order to establish family hardship, indeed that was not argued, I accept that that the circumstances are such that the effect on you of being incarcerated and being unable to provide for your wife and children and other family members and your lack of information as to their current wellbeing would make any term of imprisonment you serve more onerous on you than on anyone without those difficulties.

45I quote from Markovic's case:

"An offender's anguish at being unable to care for a family member can properly be taken into account as a mitigating factor.  If the Court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender's prospects of rehabilitation.  These are conventional issues in mitigation and they are not subject to the exceptional circumstances limitation."

46I take that into account.  That situation in combination with the presence of constant pain which has had an effect on your mental health which will not resolve until your physical pain and disability is dealt with reduces to a certain extent, the term of imprisonment I impose.

47I am going to ask you to stand.  I sentence you as follows:

48As to Charge 1, you are sentenced to 5 years' imprisonment.  I order that you serve 2 years and 6 months imprisonment before becoming eligible for parole.

49This sentence is to commence this day, 12 May 2017

50I declare that pre-sentence of 171 days be deemed as time served and that that be entered into the records of the court.

51Further, pursuant to s.6AAA of the Sentencing Act I declare that but for the plea of guilty, I would have imposed a term of 7 years' 6 months’ imprisonment with a minimum non parole period of 5 years. 

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