Director of Public Prosecutions v Taouk
[2019] VCC 582
•12 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00922
Indictment No. C1711393
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN FRANCIS TAOUK |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18-20 July 2018 | |
DATE OF SENTENCE: | 12 April 2019 | |
CASE MAY BE CITED AS: | DPP v Taouk | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 582 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Trafficking in a drug of dependence – Negligently dealing with proceeds of crime
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr A Jackson | Haines & Polites |
HIS HONOUR:
1 John Francis Taouk, you have pleaded guilty to an indictment containing one charge of trafficking in a drug of dependence[1] (charge 9) and one charge of negligently dealing with proceeds of crime in the sum of $66.090 (charge 10).[2]
[1] Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act1981.
[2] Contrary to s 194(4) of the Crimes Act 1958.
2 The maximum penalty for trafficking in a drug of dependence in the circumstances of this offence is 15 years’ imprisonment and for negligently dealing in proceeds of crime is 5 years’ imprisonment.
3 The prosecution filed a summary of prosecution opening dated 12 July 2018 which I have been told by your counsel I can treat as a statement of agreed facts.[3]
[3] Exhibit P1.
The facts
4 In March 2017, police commenced ‘Operation Tropics’ which targeted the cannabis trafficking activities of Nejat Sazimanoski. This operation was concerned with his trafficking operations, his customers, distributors and suppliers. Police used tracking devices and surveillance to track you, your co-offenders and others caught up in the operation, as you were all involved in the distribution and sale of cannabis to or from Sazimanoski.
5 Ha Huu Nguyen, Oanh Nguyen and Tuan Anh Le supplied cannabis to Sazimanoski in return for payment. Sazimanoski and his wife Gezime Sazimanoska distributed the cannabis to you and your co-offenders Frank Margariti and Stuart Wicks. You on-sold the cannabis you purchased to other buyers.
6 Police telephone intercepts and surveillance disclose that your involvement in the operation and your offending took place between 13 April and 1 August 2017, a period of some 3½ months.
7 On 16 May 2017, you and Wicks dropped off $55,000 cash to Sazimanoski. This cash came from Margariti.
8 On 4 July 2017, you attended premises in Lalor, walking in with a brown parcel believed to contain cash. A short time later, Sazimanoski, Sazimanoska and another person left the premises at the same time as you, and you all drove in convoy to Bendigo.
9 On 6 July 2017, Sazimanoski attempted to call Wicks following the arrest of a co-offender named ‘Robinson’, and left a message to call him asap. Sazimanoski then arranged to meet with you and Wicks at a property in Wollert.
10 On 11 July 2017, Sazimanoski confirmed with you that you had delivered $20,300 in cash.
11 On 12 July 2017, you received a telephone call from Sazimanoski where you asked him whether you could sell cannabis at $2,400 per pound.
12 On 17 July 2017, a customer rang and ordered three pounds of cannabis from you. You and the customer initially spoke of ordering four or six pounds of cannabis.
13 On 20 July 2017, police monitored a telephone call between you and Sazimanoski wherein you asked if you can supply your customer with five pounds of cannabis.
14 The next day, you told Sazimanoski that you supplied your customer the previous night with 11 pounds of cannabis which you obtained from Merga.
15 On 22 July 2017, Sazimanoski was supplied by a person named ‘Alijevski’ with 30 to 35 pounds of cannabis at the Wollert property. Sazimanoski agreed that you could take 11 pounds from Merga and a person named ‘Tresize’ and you would attend on that day to get replacements to them. Sazimanoski was aware you had a new customer and met with you later in Keilor.
16 On 26 July 2017, Sazimanoski arranged for you to obtain 26 pounds of cannabis from Margariti and the next day Sazimanoski arranged for you to deliver ten pounds of cannabis to Merga.
17 On 28 July 2017, you told Sazimanoski that you will be giving your customer four to five pounds of ‘the cheaper cannabis’. At the end of the telephone call you confirmed that you were in possession 21 pounds of cannabis, which you had collected from Margariti.
18 The prosecution allege that the quantifiable amount of cannabis trafficked by you during the charged period was approximately 32 kilograms, which is more than the commercial quantity threshold. Nonetheless, you fall to be sentenced on a charge of trafficking ‘simpliciter’. These facts give rise to charge 9 on the joint indictment.
19 You were arrested on 1 August 2017 in Thomastown, having just left the Lalor home of Sazimanoska shortly after she and her husband had been arrested. Police located $65,310 in cash in the car you were driving, This money forms part of the circumstances giving rise to charge 10.
20 Whilst you were in police custody in Melbourne, a search warrant was executed at your home in Bendigo where $780 in cash was located, which police suspected was the proceeds of crime. This also forms part of the circumstances giving rise to charge 10. You have pleaded guilty to this charge on the basis that you dealt with all this cash being negligent as to whether or not it was proceeds of crime.
21 Also found at the premises were two heat sealer machines, a number of vacuum seal bags and two sets of digital scales, together with just over one kilogram of cannabis.
22 You were interviewed in a tape-recorded record of interview and either gave ‘no comment’ answers or denied all allegations of trafficking that were put to you. You claimed that the money seized from your car was proceeds from the sale of a house.
23 You have remained in custody on remand since your arrest on 1 August 2017. Pre-sentence detention is 619 days not including today.
Offence seriousness
24 Trafficking in a drug of dependence is a serious criminal offence as indicated by the maximum penalty of 15 years’ imprisonment. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have engaged in charge 9.
25 Whilst the legislation is quantity-based and not harm-based, it is nonetheless relevant to observe that grave harm is inflicted on the community by offences involving the trafficking of cannabis by modern methods.[4] The harmful effects of cannabis and the seriousness of the offence have been emphasised numerous times in recent decisions in the Victorian Court of Appeal.[5]
[4] Nguyen v The Queen (2016) 311 FLR 289, 331 [142] (Redlich JA, Tate and Whelan JJA agreeing) (‘Nguyen’).
[5] See Nguyen 326 [123].
26 You played a significant enough role in a highly sophisticated criminal enterprise. You were an integral part in an extensive and successful business of trafficking in cannabis along the supply line to street level users. Schedule C to the Crown Opening demonstrates the extent of your involvement in this nefarious trade.
27 Your counsel described your role as being that of an on-seller from Sazimanoski to street level users. He said the evidence gathered during the course of the investigation supports this characterisation, as does the finding at your residence of a ‘modest amount’ of cannabis together with heat sealer machines, vacuum seal bags and digital scales. I accept this characterisation of your role in this criminal enterprise. Clearly, you were very successful in selling cannabis, given the amount of money being the proceeds of your crime the subject of charge 10 is $66,090.
28 However, whatever descriptor is used to characterise your role must not obscure my assessment of what you actually did.[6]
[6] See R v Olbrich (1999) 199 CLR 270, 279 [19] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
29 The period charged covers approximately 3½ months. During this period you were actively involved in the ‘business of trafficking’ in cannabis in the Giretti[7] sense. It is agreed that I should sentence you on the basis that the total quantifiable amount of cannabis trafficked by you during this period is approximately 32 kilograms, or about 1¼ times the commercial quantity threshold. Although, once again, I observe you fall to be sentenced for the lesser offence of trafficking ‘simpliciter’.
[7] Giretti v The Queen (1986) 24 A Crim R 112.
30 While the sentencing regime for trafficking offences is essentially quantity-based,[8] the amount you trafficked is not determinative of my assessment of the objective gravity of this offence. Nonetheless, the weight of drug you actually trafficked, falling as it does at the very top of the trafficking ‘simpliciter’ quantity, remains a relevant factor in assessing the objective gravity of your offending conduct.
[8] Adams v The Queen (2008) 234 CLR 143; R v Tsolacos (1995) A Crim R 434, 436; Gregory v The Queen [2017] VSCA 151 [23].
31 Clearly general deterrence must be given primacy in sentencing you for these offences. Your counsel accepted this was so. In Djordjic v The Queen,[9] Beach and Kaye JJA (with whom Whelan JA agreed) said:
[9] [2018] VSCA 227.
In light of the large profits that may be derived by those who engage in trafficking such quantities of drugs, it is recognised and accepted that the principles of general deterrence must be given particular emphasis. In Nguyen v The Queen,[10] Priest JA and Coghlan JA quoted with approval the following passage from Dawid v DPP:
The nature and pervasive extent of drug trafficking of the type engaged in by the applicant is such that, on sentencing, the principles of general deterrence and denunciation assume substantial prominence. It is the large profits, which can be gained from trafficking in drugs, that attracts people, such as the applicant, to engage in the type of offending for which the applicant was sentenced. It is important that persons, like the applicant, who contemplate embarking on such an enterprise, do so in the clear knowledge that, if detected, they will be sentenced to lengthy terms of imprisonment. In other words, it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived from the trafficking of illicit drugs.[11]
[10] [2017] VSCA 262 [36].
[11][2013] VSCA 64 [35].
32 During the period of your involvement in the business, you transported significant quantities of cannabis and large amounts of cash between members of the criminal organisation of which you were part. You were knowingly part of the conduit between the grower of the cannabis and the final purchaser on the street. In this sense, your played a critical part in the success of the overall operation.
33 I find that your offence falls at the upper end of the range of seriousness for offences of this kind. Whilst the incremental uplift in sentences for offences in the mid-range of commercial trafficking and for trafficking in a large commercial quantity recently prescribed by the Court of Appeal[12] does apply to the offence with which you are charged, in my opinion, given your offending falls at the very top of the traffickable quantity threshold, an incremental increase in sentences imposed for this category of offending is warranted in order to retain relativities.
[12] See Nguyen v The Queen (2016) 311 FLR 289, 333 [152] (Redlich JA); Stanley v The Queen [2017] VSCA 54; Gregory v The Queen [2017] VSCA 151 [100]–[102]; Quaresima v The Queen [2017] VSCA 687 [15] (Weinberg and Priest JJA).
34 While it appears that financial gain was your sole motivation, I accept there is no evidence of enrichment or a grandiose lifestyle in your case. Overall, I assess your moral culpability in relation to this offending as being relatively high.
Personal circumstances
35 You are currently 55 years old, being born on 23 December 1963. You are Lebanese in background and you were born and raised in Bendigo. You are one of 9 children, seven sisters and one brother. You maintain a good relationship with all of them. You never married and you have no children.
36 Apparently, you suffered a fairly oppressive childhood at the hands of your father, who passed away in about 1998. Your mother passed away in January of last year. She had been ill for some time. You were allowed an escorted visit to see her whilst she was in palliative care the week before she died. You chose not to attend her funeral because you did not wish to attend in handcuffs.
37 You were educated in the Bendigo area and you completed Year 11 at school, but failed Year 12. On leaving school you worked at various unskilled jobs. You did labouring work, odd jobs, drove taxis – essentially anything, both in Bendigo and in Melbourne. You never obtained any formal qualification.
38 You travelled to Darwin where you resided and worked for a number of years. While not exactly itinerant, you moved around a great deal. You lived in Darwin until January 2017, at which time, owing to your mother’s failing health, you moved back to reside in the Bendigo area. Further details regarding your background, employment, and history of drug abuse, which I have had regard to, are contained in her Honour Judge Rizkalla’s reasons for sentencing you in August 2010.[13]
[13] R vJohn Taouk [2010] VCC 1123 [18]–[29] (exhibit ‘JT5’). See further below at [42].
39 You have a longstanding addiction to and abuse of cannabis, which is reflected in your prior criminal history. I was told you have had no difficulties with other illicit drugs or alcohol.
40 You are presently in ‘high security’ whilst on remand pending sentence. Because you are not a sentenced prisoner, you have been prevented from undertaking some courses, which are necessary if you are to be paroled in the near future. Nonetheless you have completed a number of courses including a Certificate II in kitchen operations and a traffic management course and you have obtained your ‘white card’.[14] You have been employed in the kitchen where you work seven days per week. You are described as being ‘a reliable prisoner’ who will attend work whenever required. You have ‘a good work ethic’ and you ‘complete all tasks without any fuss’.[15]
[14] See exhibit ‘JT4’.
[15] See exhibit ‘JT2’.
41 Because of the delay in dealing with your matter, which is no fault of yours, you have had these proceedings hanging over your heard for some time. This has caused you anxiety and has added to the burden of your incarceration up until this time. I have taken these effects of the delay into account in sentencing you.
42 So far as your future is concerned, I was told that upon your release from custody you intend to resume living in the Bendigo area. You are confident that employment will be available to you at that time with Bendigo-Castlemaine Removals, whose proprietors provided a letter confirming a job is available to you upon your release.[16]
[16] Exhibit ‘JT3’.
Prior criminal history
43 You have an extensive prior criminal history dating back to early 1984 and extending up until and beyond 16 August 2010, when you were sentenced in this Court by her Honour Judge Rizkalla for trafficking in a drug of dependence, namely cannabis. The amount alleged was 23.1 kilograms, which you purchased in Melbourne and intended to consign to Darwin for sale. The cannabis consisted mainly of dry female flowering heads with an estimated street value of about $325,000.
44 You were convicted and sentenced to three years’ imprisonment and a two year non-parole period was fixed.[17] I was told by your counsel that you were released on parole and successfully completed that order without further offending. Clearly, this is a highly relevant prior conviction.
[17] R v John Taouk [2010] VCC 1123 (exhibit ‘JT5’).
45 The remainder of your prior criminal history comprises 12 appearances in Victorian magistrates’ courts and local courts in Darwin. The offences mainly consist of dishonesty and driving offences, however you have a number of prior convictions for drug related matters.
46 In March 1993, you were found guilty of cultivate a narcotic plant and without conviction fined $250. In April 2000, you were found guilty of cultivate a narcotic plant and without conviction given an adjourned bond together with a $200 contribution to the court fund. In October 2003, you were convicted and fined $100 for possess and use cannabis. In October 2007, you were convicted and fined $500 for cultivate a narcotic plant, possess and use cannabis. In June 2014, you were convicted and fined $1000 for possess cannabis and supply a dangerous drug. This apparently relates to an offence committed by you in 2009, wherein you supplied about one ounce of cannabis to a friend.[18] Finally, in January 2017, you were convicted and fined $200 for possessing less than a traffickable quantity of a dangerous drug in a public place.
[18] See R v John Taouk [2010] VCC 1123 [16].
47 Your counsel told me that, apart from the 2014 supply charge, all of these offences relate to your own use of cannabis at various times. Looking at the sentences imposed, being low level fines and the like, I accept this is so. Your counsel also told me you have no subsequent offences and there are no outstanding matters pending in the courts.
48 However, your serious prior conviction in 2010 is very concerning. You are not to be punished again for that offence; nonetheless, it means that the present offending cannot be seen as an ‘uncharacteristic aberration’, but, rather, it demonstrates your ‘continuing attitude of disobedience of the law’, which means ‘retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted’ in your case.[19]
[19] Veen v The Queen [No 2] (1987) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ).
49 Moreover, I assess you as having a moderate to high risk of reoffending. This means I must give significant weight to specific deterrence and protection of the community in sentencing you and I can only adopt a very cautious approach to your prospects for rehabilitation.
Mitigating circumstances
50 The main mitigating circumstance present in your case is your fairly early pleas of guilty. Your matter resolved at the conclusion of a two-day contested committal hearing in May 2018.
51 Your pleas have utilitarian benefit in saving the time and cost of a relatively lengthy trial. They also indicate an acceptance by you of responsibility for your offending conduct and your willingness to facilitate the course of justice. However, whilst you are undoubtedly regretful for the situation in which you find yourself, there is no evidence before me of genuine remorse beyond what is reflected in your pleas. There is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse.[20] Your counsel accepted this was so.
[20] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
52 As I earlier observed, there has been some delay in this case, for which you are not responsible, and I take that into account in your favour.
Parity
53 Parity is a significant consideration in this case in relation to others involved at your level in the syndicate, as well as a need for me to pass a sentence on you which is not unfairly disparate from the sentence I passed on Sazimanoski. I sentenced Sazimanoski on a commercial trafficking charge arising from this police operation to 4 years’ imprisonment[21] and I sentenced Wicks on a commercial trafficking charge arising from this police operation to 42 months’ imprisonment and on a negligently possess proceeds of crime charge, involving only $1460, to 14 days’ imprisonment. His total effective sentence was 42 months’ imprisonment with a non-parole period of 21 months.[22]
[21] DPP v Sazimanoski [2018] VCC 973.
[22] DPP v Wicks [2019] VCC 135 (1st revision).
54 As I explained in my reasons for sentence in Wick’s case,[23] for reasons apparent from my sentencing remarks in Sazimanoski, I imposed a very lenient sentence on him considering the objective seriousness of his offending conduct, because of circumstances personal to him. This significantly distinguishes his case from yours.
[23] Ibid [49]–[53].
55 Wicks is also distinguishable from you. While he faced the more serious charge of trafficking a commercial quantity of cannabis, and he was on the same level in the organisation as you — like you trafficking 32 kgs of cannabis during a 3½ month period — he was a first offender, which I held at his age to be ‘a significant factor[24]’ in his favour. Consequently, I gave ‘very little, if any’ weight to specific deterrence and protection of the community in sentencing him.[25] I also accepted that he had ‘very good prospects of rehabilitation’ if he remained drug free on release from custody.[26] There were also a number of protective factors present in his case, which I accepted reduced the risk of him reoffending.[27]
[24] Ibid [44].
[25] Ibid.
[26] Ibid [45].
[27] Ibid [46].
Application of sentencing principles
56 I have had regard to current sentencing practices in relation to the charge of trafficking in a drug of dependence in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[28] Neither the Crown nor your counsel put material before me concerning current sentencing practices in relation to this offence.
[28](2017) 91 ALJR 1063.
57 It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct which can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
58 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
59 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, so far as is possible, you are rehabilitated and reintegrated into society.
60 General deterrence is a very important sentencing consideration for the offence charged in charge 9.[29] The offence is prevalent in the community and, as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.[30]
[29] Nguyen 330 [139]–[140].
[30] Nguyen 331 [141].
61 Whilst just punishment, general deterrence and denunciation must be given primary consideration in the instinctive synthesis, I am of the view that, in your case, specific deterrence and protection of the community also must be given significant weight in light of your offending conduct and your prior criminal history. As I said earlier, I consider your prospects of rehabilitation are problematic.
62 Trafficking in cannabis in the manner you did in this case is a serious crime and your moral culpability is relatively high. It is clear that the earlier significant sentence of imprisonment imposed upon you by her Honour Judge Rizkalla did not have a sufficiently deterrent effect on you. Consequently, I am of the view that a sentence of imprisonment with a non-parole period is the only sentence which will give appropriate weight to the purposes for which this sentence is imposed.[31] Your counsel accepted this was so.
[31] Sentencing Act 1991 (Vic) s 5(4).
63 I am prepared to sentence you on the basis that the $66,090 in cash, the subject of charge 10, were proceeds from the business the subject of charge 9. Accordingly, there will be a large measure of concurrency between the sentences I impose on these offences.
Stand up Mr Taouk
On the charge of trafficking in a drug of dependence, namely cannabis, (charge 9) you will be convicted and sentenced to be imprisoned for 4 years.
On the charge of negligently dealing with proceeds of crime (charge 10) you will be convicted and sentenced to be imprisoned for 6 months.
I order that 2 months of the sentence imposed on charge 10 be served cumulatively with the sentence imposed on charge 9; making a total effective sentence of 4 years’ and 2 months’ imprisonment.
I order that you serve a minimum of 3 years’ imprisonment before becoming eligible for parole.
I declare 619 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 state that the sentence I would have imposed on you but for your pleas of guilty would have been a total effective sentence of 5½ years’ imprisonment with a non-parole period of 4 years’ imprisonment.
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