Director of Public Prosecutions v Thasthahir

[2018] VCC 1714

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02298

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAHUL THASTHAHIR

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JUDGE:	HIS HONOUR JUDGE M. P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 October 2018
CASE MAY BE CITED AS:	DPP v Thasthahir
MEDIUM NEUTRAL CITATION:	[2018] VCC 1714

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 D. Renton (Plea) Ms J. King (Sentence)
For the Accused	Mr P. Morrissey SC (Plea) Mr A Sucki (Sentence)

HIS HONOUR: 

1Shahul Thasthahir, you are to be sentenced for one charge of importing a commercial quantity of a border controlled drug under s.307.1(1) of the Commonwealth Criminal Code.  The maximum sentence is imprisonment for life. 

2You committed this offence in October 2015.  When interviewed by police on
4 December 2015, you answered questions denying involvement in the importation.  There was a contested committal which ran over a number of days during October and December 2016.  A number of matters delayed your trial  in the period mid-2017 to mid-2018.  Much of that delay was not caused by you. 

3Ultimately, on 8 May 2018, a trial commenced before me.  There were four accused.  On 27 June, the jury returned a verdict of guilty on your trial.  Two co-accused were acquitted.  The jury was discharged without verdict on the third co-accused.  That accused was acquitted at a subsequent retrial, on
10 October.  Your trial was run cooperatively and efficiently. 

4Your plea hearing ran on 9 August.  Mr Renton for the Crown provided a written outline of plea submissions, a chronology of the proceedings and a document briefly summarising so-called comparative appellate court cases.  It is titled "Comparative sentencing schedule - appellate authorities".

5r Morrissey QC for you tendered a prisoner indent report detailing your placement in custody since October 2015, a number of medical and psychiatric reports related to you, further medical and psychological reports related to the health and circumstances of your wife, medical documents in respect of your father-in-law and also your father, a number of letters of character reference, certificates related to rehabilitative and educational programs in custody.  These are contained in a folder tendered as Exhibit 1.  Mr Morrissey also provided an outline of plea submissions.

6On 18 October 2015, three suitcases containing narcotic drugs arrived into Tullamarine airport, Melbourne, having been luggage on a Malaysian Airlines flight from Kuala Lumpur.  Each case was separately checked-in as luggage of your three co-accused.  The circumstances of their alleged involvement are not relevant to you.  As stated, they have been acquitted at trial. 

7You had also flown  on the flight coming not from Kuala Lumpur, but Chennai.  These suitcases contained large amounts of narcotic drug. In pure quantity, 

(1) The case of co-accused Kartik Ramasamy carrying approximately 20,702           grams of methamphetamine. 

(2) The case of co-accused Sathisraj Silvaguru carrying approximately 3,191      grams of methamphetamine and 14,517 grams of heroin. 

(3) The case of co-accused Jayamani Superimanian carrying approximately       19,852 grams of methamphetamine. 

These amounts are very much             beyond the legislated commercial quantity for each drug.  The approximate total of pure methamphetamine was 44 kilograms, of pure heroin 14.5 kilograms.  The estimated wholesale value of the methamphetamine is $4.3m to $6.5m, of the heroin $4.2m to $7.3m. 

8I make these findings about the circumstances and role of your offending, having considered the evidence at trial, that further tendered at the plea hearing, counsel's submissions and applying the principles stated in Storey and like cases on  fact finding in plea hearings.  My findings also seek to be consistent with the jury verdict, including in the context of my directions to them on relevant matters.

(1) Your role was to pick up the three cases containing drugs at the Melbourne  Airport baggage carousel and bring them through Customs.  They were             typically labelled in each of your co-accused's names.                  

(2) You were selected for baggage examination.  Before that could happen, you      stated that the cases were not yours and, for example, pointed out the labels   in other names.  This was a fall-back position, if selected for examination. 

(3) You and the Australia Border Force officer returned  to the carousel where   you were able to select three very similar fall-back cases labelled in your       name and which you had purchased and checked-in at Chennai.  Of course      they did not carry drugs.  They were examined, you passed through and left    Customs.

(4) CCTV footage and evidence at trial revealed forlorn attempts by you to return into the Customs hall and other parts to locate and possibly retrieve     the drug cases.  This happened both on the night of 18 October and the    following day.  Amongst other things, this evidences some significant      responsibility for them.

(5) You had avoided detection; but had not brought through a highly valuable      shipment of drugs, as had been your task.  Beyond this, your further part in       the operation is speculative and not the subject of my sentence of you.      Clearly though, these drugs were to move on from your control and into the       distribution market.

(6) The abandoned drug bags were stored according to usual practice and       routinely examined on 19 October.  The drugs were discovered. 

(7) The three cases were found to contain the amounts and kind of drug earlier stated.  The cases were labelled and identified as those of each of the three     others, Silvaguru, Ramasamy and Superimanian. 

(8) At trial and again at the plea hearing, there was question raised as to    whether you selected at the carousel all three of those cases, the drug bags.     My consideration of this has included that I was asked and have viewed that    part of the CCTV footage at trial which showed movement of the three bags       at the carousel and from baggage examination to storage at the relevant   service provider, a company named Menzies Aviation.  As stated, there is      also the need for consistency with the jury verdict. 

(9) I am satisfied beyond reasonable doubt that you selected and attempted to move through Customs the three bags which were found on 19 October to     carry the narcotic drugs. 

(10) The factors which lead me to that include the following.  The jury verdict      means that you went to the carousel intending to select bags related to the      drug importation and to move narcotic drugs through Customs.  Three bags      carrying such drugs had been checked-in at Kuala Lumpur airport labelled in       the names of the three co-accused.  You are seen to select three bags at the       carousel with, I would accept, apparent care.  After baggage examination of them is abandoned, notably upon your indication that they are not labelled in      your name, they are X-rayed by an Australia Border Force officer without      detection (upon which the defence has placed emphasis).  The CCTV footage shows them taken and left at or behind a pillar.  At the pillar there are four suitcases and a soft duffle-like bag, which can be excluded from the question at hand.  It is clear that the four cases, are after that, taken to a position at or    near Menzies Aviation.  The footage shows to me that one suitcase is after that taken by persons who, one would safely find, identified it by factors      including label and name;  that is, not that of any of the three co-accused.       My viewing of the footage is consistent with the three bags then left having      remained without further interference with them.  That and other evidence   states that they are identified by Menzies Aviation, kept and taken to the      examination on 19 October, which discovered the drugs. 

There are other       perhaps lesser or subsidiary factors in support of my finding.  There is a      similarity of bag labels or stickers on the footage.  There is a similarity of the       bags.  The three drug bags were business class, a point made by you to the   prospective baggage examiner.  It is the evidence, perhaps not conclusive, of the relevant Menzies Aviation staff member that only three unaccompanied or lost bags remained overnight in storage.

It is the combination of the relevant evidence, matters and circumstances that leads       me to my finding.  I see no reasonable explanation but that they are the same       bags.  I also see this as consistent with the jury verdict in the context of relevant direction given to them. 

(11) Accordingly, you are to be sentenced on the basis that you intended to take      three cases, cases related to the drug importation you were assisting.  Those      cases each contained narcotic drugs in the quantity and of the kind I have earlier described.  There is no evidence of your specific knowledge of the     kind and quantity of the importation.  You must have understood it to be very      considerable, given for example the number and apparent weight of the     cases. 

(12) I agree with the submission that your role entailed high risk, risk of some    similarity to that of a so-called drug courier.  However, it was also a role of       responsibility and trust, one critically important to a very large drug     importation.  Unlike in the case of the typically exposed mere courier, your        personal risk was moderated by the fall-back position available to you.  Of       course the drugs did not, in that consequence, get through.  The footage and      your behaviour after conveys some sense of the problem that created for      you. 

9You are a 38 year old man, presently awaiting this sentence in  remand custody.  That has been a period now of about three years.  You have no criminal history. 

10You were born in southern India and are of Tamil ethnicity.  Over generations, your family were farmers and your father had a number of holdings in the area.  You have an older and younger brother and sister.  You enjoyed a supportive, prosocial upbringing, although your mother was diagnosed with cancer in your early teenage and died when you were, I was told, 19.  Your father has suffered depression and there are now signs of dementia. 

11You went to school until Year 10.  You also worked from 13 in your uncle's café.  I accept the evidence that you have been a caring, community-minded person.  Mr Morrissey stated that by your early-20s you were playing a carer role within your family. 

12You came to Australia in 2006.  Prior to that, you worked successfully in hospitality.  You are a chef and your wife's family had restaurant connections.  Your wife came here in 2007.  You married, I was told, in 2008.  You have two children, aged eight and three years.  Your wife suffers depression and other health problems.  There is no other family in Australia. 

13You appear to have also been successful here, operating restaurants in Mandurah and Perth.  You came to Melbourne and, from 2015, setup and ran a city café.  There have also been catering and driving instructor businesses.  Your family has lived in Perth until recently.  In Australia you have continued to be community minded.  You have sponsored others in both countries.  Your life has been busy, with family interests in India and Australia.  You have travelled often between Perth, Melbourne and southern India.  You became an Australian citizen in 2012.

14In terms of physical health, you suffer diabetes, problems with cholesterol, blood pressure and gout.  Psychiatrist, Dr Anthony Cidoni relates these, at least in part, to anxiety.  At 24 you were injured in a motorcycle accident and placed into an induced coma.  Dr Cidone also states "a major depressive disorder", mainly reactive to your life circumstances over time and present legal predicament.

15I accept that your health and concern for your family here and in India, will make imprisonment, which must be a long sentence, more difficult.  There is risk of deterioration, particularly in your mental health.  You have found imprisonment thus far to be difficult and your health has been affected.  Mr Morrissey put and I accept that you feel shame and a strong sense of punishment. 

16My earlier summary and findings on the circumstances of your offending state its self-evident seriousness.  It was part of a large drug operation, no doubt planned and then executed with sophisticated organisation.  Whilst you should not be seen as its head or at its centre, your role was critically important.  There is no need to restate the damage the commercial drug trade does to the community and its vulnerable.  Whilst in your hands, the wholesale value of these drugs is the most relevant one.  The street value stated in trial evidence, or depositions,gives a powerful sense of the level of porospective damage.

17It is an offence which makes important sentencing considerations of deterrence, especially general deterrence, a high moral culpability, a need to sentence in a way to powerfully state condemnation and to impose proportionate punishment.  General deterrence aimed at protecting our community is the primary sentencing purpose.  As stated, the maximum sentence is life imprisonment.  Very substantial really lengthy imprisonment is the only way to meet these sentencing purposes.

18I also take into account the relevant moderating factors personal to you and which may, to some extent, reduce the length of that sentence compared to what the objectively seen criminality requires.  They include the following matters.

(1) You are a person hitherto of good character.  The evidence tendered shows       this.  I bear in mind that good character may not stand as strong in respect      of offending like this.  For example, a criminal history, one would think, excludes persons from the role you played. However, you are still entitled to a properly measured consideration of that good character and at a mature      age. 

(2) Your personal circumstances include that context and also the hardship in    prison, dislocation and concern about your family, as earlier described.  Your   health is included in that.  You will not support or be with your wife and   children for many years. 

(3) Mr Morrissey raised the circumstances of hardship to your family here and   in India;  but did not press or submit that they met the required test of  exceptional.        I accept that the effect upon others caused by your imprisonment (and,  it must     be said, your choice to take the risk of this crime) works hard upon you and will     continue to do so.  There is your family in India and wife and children here.         You are anxious about your wife who suffers depression and anxiety and      feels isolated without your support.  You fear that you will be apart from your      children during their years of development. 

(4) I accept that you have genuine prospects for rehabilitation.  You are a    capable man and have support.  I also accept that this sentence will have a   strong deterrent impact upon you. 

(5) Mr Morrissey raised delay.  You were arrested and remanded in December       2015, now almost three years ago.  I accept the difficulty, anxiety and stress    felt over the time. 

(6) You have behaved cooperatively in the proceedings against you.

19These personal factors are relevant.  Ultimately, however, the high criminality of your offence and the predominant need to attempt deterrence of others require a long sentence of imprisonment. 

20As I have stated, Mr Renton has provided a schedule of comparative sentences.  I have considered these.  I also bear in mind the need to sentence you on the individual circumstances and matters relevant to your case. 

21Having considered what I see to be the relevant matters, I sentence you as follows.

22Stand up please. 

23You are sentenced to imprisonment for 16 years.

24I set a minimum term before eligibility for parole of 11 years. 

25Under s.18, I declare 1,051 days of pre-sentence detention. 

26Sit down please. 

27What are the other matters that need to be dealt with? 

28MS KING:  There is nothing else, Your Honour.

29HIS HONOUR:  All right.  Mr Thasthahir, may speak to his wife, who has come here in support from him, but it must be relatively quick, Mr Sucki. 

30MR SUCKI:  Yes, Your Honour. 

31HIS HONOUR:  She may feel too distressed to do that. 

32MR SUCKI:  May I approach my ‑ ‑ ‑

33HIS HONOUR:  Yes, sure. 

34MR SUCKI:  Thank you, Your Honour. 

35HIS HONOUR:  Mr Sucki, if you could - I would be obliged if you could supervise that.  It has got to be quick, I am sorry.

36MR SUCKI:  Certainly, Your Honour.

37HIS HONOUR:  And I must remain­ here. 

38MR SUCKI:  Yes, Your Honour. 

39HIS HONOUR:  Yes, Mr Thasthahir can be taken into custody, yes, thank you.

40Yes, now, what is next?  Is there anything else to do? 

41COUNSEL:  No, Your Honour.

42HIS HONOUR:  Thank you.  Thank you, Mr Sucki, thank you, Ms King.

43MR SUCKI:  May I be excused please, Your Honour? 

44HIS HONOUR:  Yes.

45MR SUCKI:  Thank you, sir. 

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