Director of Public Prosecutions v Warda
[2023] VCC 1557
•30 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02031
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADDAI WARDA |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 August 2023 | |
DATE OF SENTENCE: | 30 August 2023 | |
CASE MAY BE CITED AS: | DPP v Warda | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1557 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Trafficking Commercial Quantity Drug of Dependence --- Methylamphetamine --- Category 2 offence --- Deal with property suspected of being Proceeds of Crime --- Role --- Youthful Offender --- No Prior Criminal History --- Remand during COVID-19 Pandemic --- Bail to Inpatient Rehabilitation Centre --- Positive Rehabilitation --- Start of own Business --- Delay --- Early Plea of Guilty --- Ineligibility for Drug Court treatment --- Genuine Remorse --- Substantial and Compelling Circumstances that are Exceptional and Rare -- Combination of Imprisonment and Community Correction Order.
Legislation Cited: Drugs Poisons and Controlled Substances Act 1981 (Vic) -- Sentencing Act 1991 (Vic) -- Bail Act 1977 (Vic).
Cases Cited:Pidoto v R (2006) 14 VR 269 --- Gregory (a pseudonym) v The Queen [2017] VSCA 151 --- Fernando v The Queen [2017] VSCA 208 --- DPP v Condo [2019] VSCA 181 --- Nguyen v The Queen [2021] VSCA 59 --- R v Nguyen (2010) 205 A Crim R 106 --- Farmer v The Queen [2020] VSCA 140 --- Buckley v The Queen [2022] VSCA 138 --- DPP v Lombardo [2022] VSCA 204 --- Bugmy v The Queen (1990) 169 CLR 525 --- Re Warda [2021] VSC 323 --- Worboyes v The Queen [2021] VSCA 169 --- Frecker v The Queen [2021] VSCA 331 --- Azzopardi v The Queen [2011] VSCA 372 --- R v Mills [1998] 4 VR 235 --- R v Akoka [2017] VSCA 214 --- Surtees v The King [2023] VSCA 42 --- Borg v The Queen [2020] VSCA 191 --- Boulton v The Queen (2014) 46 VR 308.
Sentence: 209 days imprisonment plus 489 day Community Correction Order --- $540 fine
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | Office of Public Prosecutions |
| For the Accused | Mr L Gwynn | Melasecca, Kelly and Zayler |
HER HONOUR:
Summary
1Addai Warda, on 14 August 2023, you pleaded guilty to one charge of Trafficking in a Commercial Quantity of a drug of dependence namely, methylamphetamine. You have also pleaded guilty to a summary offence of Dealing with Property suspected of being the Proceeds of Crime; namely, $540 cash.
2At the time of that offending you were 22 years old. You are now 24.
3Your co-offender, Takai Uluakiahoia, was 37 years old. He has pleaded guilty to trafficking in a large commercial quantity of methylamphetamine, trafficking by way of manufacture, trafficking simpliciter and possession of a drug of dependence. In addition, he has pleaded guilty to committing an indictable offence whilst on bail. He will be sentenced at a later date.
4Another co-offender, 33 year old Cheng Bin Fu, known as Ben, pleaded guilty to trafficking a commercial quantity of methylamphetamine, possession of a drug of dependence and knowingly deal with proceeds of crime being $78,150 cash, a silver 1 kilogram bullion, a ½ ounce gold coloured circular weight, a gold colour ladies' watch and a Joe Rodeo men's watch. He has already been sentenced.
5There was no suggestion by either party that principles of parity with your co‑offenders are relevant to my consideration of the appropriate sentence in your case.
Offending
6The background to and facts of your offending are outlined in detail in the Prosecution Opening tendered on the Plea. In summary they are as follows.
7On 8 September 2020 Mr Uluakiahoia was arrested in relation to the discovery of a clandestine laboratory set up in his garage for the purpose of manufacturing methylamphetamine. He was placed in a prison cell with a covert police operative. He offered his details to the covert operative and some weeks after being bailed they had contact for the purpose of Mr Uluakiahoia trafficking drugs. They exchanged numerous messages over an encrypted application and in October 2020 Mr Uluakiahoia trafficked a sample of methylamphetamine to the covert operative.
8Mr Uluakiahoia and the covert operative continued to have contact wherein Mr Uluakiahoia made numerous references to obtaining methylamphetamine from 'Ben'. They ultimately agreed that the covert operative would purchase one kilogram of methylamphetamine from Mr Uluakiahoia and his contacts at a price of $260,000.
9For that purpose on 11 November 2020, Mr Uluakiahoia met with the covert operative and drove to a semi-rural address at Narre Warren North. They arrived at around 11:00 am, and stationary in the long driveway were two cars, a white Kia being driven by Mr Fu and a black Toyota Corolla driven by you, Mr Warda.
10Mr Uluakiahoia parked next to Mr Fu who directed the covert operative to sit in the back of your vehicle. He did so and you handed the operative a brown paper bag containing a foil-wrapped package labelled 'Green Tea'. You told the covert operative that the package had a triple-seal and instructed him on how to break through the layers with a sharp object. He was then permitted to break the seals, using his car keys for that purpose. He inspected the substance inside and confirmed it to be methylamphetamine.
11It is this conduct which forms the basis of Charge 1 – Trafficking in a drug of dependence – Commercial Quantity.
12Although the covert operative offered to pay a deposit, no money was exchanged at that point, with Mr Fu telling him to come back with the total amount of $260,000.
13The operative got back into the car being driven by Mr Uluakiahoia, and they then travelled to Bunnings in Dandenong South for the false purpose of the covert operative meeting up with his 'syndicate' to obtain the required money. En route, Mr Uluakiahoia in reference to you stated, 'That other kid, he’s just a runner… He’s not the main guy.'
Arrest
14Mr Uluakiahoia was arrested upon arriving at the Bunnings car park.
15Police then attended at the address in Narre Warren North where you and Mr Fu were arrested. On seeing police, Mr Fu caused his mobile phone to self-destruct.
16A search of your vehicle located the package of drugs shown to the covert operative. On later analysis it was found to contain 999.4 grams of methylamphetamine with a purity of 82 per cent.
17Also found in your car was a Gucci wallet containing $540. This forms the basis of Summary Charge 2 – Dealing with Property suspected of being the Proceeds of Crime.
18On interview you made no comment.
19You were remanded into custody.
Sentencing Principles
20This is serious offending. That fact is reflected in the applicable maximum penalty of 25 years' imprisonment for trafficking in a commercial quantity of a drug of dependence.
21Although the type of drug and relative harm it causes is not a relevant circumstance of the offence[1], it is well understood that methylamphetamine is a scourge on our community. Day in, day out in this Court we see the negative effects of that drug. It is highly addictive. It is corrosive to those who use it. Persons addicted to it often behave in violent and unpredictable ways. That behaviour is often inflicted on families, partners and children or on innocent persons going about their lives and business in the community.
[1] Pidoto v R (2006) 14 VR 269.
22The movement of such drugs within the community is therefore serious offending deserving of condign punishment.
23Sentences imposed for such offending must have as a focus general deterrence, denunciation and community protection. That is, the sentence I impose must deter others from trafficking such drugs in large quantities for a profit. It must announce to you and to others minded to engage in trafficking, the denunciation by this Court on behalf of the community, and it must be designed to protect the community from the corrosive effects of drugs. Almost without exception such offending will result in a term of imprisonment, as it must here.
24Trafficking offences are governed by a quantity-based scheme. That is, Parliament has determined that there is a sliding scale of seriousness of a trafficking offence based on the amount of drugs trafficked. For an offence of trafficking (simpliciter) the maximum penalty is 15 years' imprisonment. For an offence of trafficking in a commercial quantity the maximum penalty is 25 years' imprisonment, and for an offence of trafficking in a large commercial quantity the maximum penalty is life imprisonment. Quantity is thereby a key indicator to offence seriousness and a key point of comparison between cases.
25A commercial quantity of the drug methylamphetamine is 250 milligrams mixed, or 50 milligram pure. Although I accept that there is no evidence regarding your knowledge of the precise nature, quantity or purity of the drug trafficked, by your plea of guilty you accept that you were at least aware that there was a significant or real chance that the amount of drug contained in the package was greater than the commercial quantity. The actual amount contained was just under 1 kilogram of that drug, that is, four times the threshold amount. I take that fact into account.
26When assessing the objective gravity of your offending quantity is but one consideration to take into account. As has been said many times in higher Courts, it is only one of the many factors which must be synthesized for the purpose of arriving at an appropriate sentence in an individual case.[2]
[2] See Gregory (a pseudonym) v The Queen [2017] VSCA 151, Fernando v The Queen [2017] VSCA 208, DPP v Condo [2019] VSCA 181, Nguyen v The Queen [2021] VSCA 59.
27It determines the category of offending and the maximum penalty however it is not of itself determinative of the outcome. In other words, it is a starting point but not an end point. In that regard I must take into account your role in the offending and the broader circumstances.[3]
[3] R v Nguyen (2010) 205 A Crim R 106.
28Your role here is limited to your involvement on a single date. It is limited to your presence at the scene of the handover of the package and to your participation in that exchange. Whether you gave instructions to the covert operative about how to open the package as a result of your own knowledge or as a result of being told what to tell him is unclear and I could not draw any conclusion about that fact.
29There is no other mention of you by Mr Uluakiahoia prior to the day of the trafficking and only after he has been at the Narre Warren property. He does not mention you by name. I cannot conclude whether he knew you or had any previous dealing with you or made an educated guess about your involvement. His dealing is with Ben and unknown others.
30You are described by him as a 'runner'. I do not place too much emphasis on the untested word of your co-offender. Nonetheless, you did act as a conduit for the passing over of the package. It is generally accepted that those who act as couriers of drugs and other low-level participants are generally regarded as important, if not essential, to serious drug trafficking offences and that fact is usually reflected in the punishment. Runners or couriers are often entrusted with the safe carriage of drugs, with collection of money or in other practical arrangements essential to the movement of drugs between buyer and supplier.
31However, it is not clear to me that you were important or essential in this exchange. There is no evidence that you were entrusted with anything, other than sitting under the watch of Mr Fu in a car with the package. Without you the exchange could have occurred directly between Fu and Uluakiahoia, Fu and the covert operative or Uluakiahoia and the covert operative.
32Although I accept that a sentencing court will often be unable to discern the precise nature and extent of an offender's involvement in drug trafficking activity, in this case there is simply nothing beyond your acts on this day from which I could draw any inferences of more extensive involvement.
33There is no evidence of any involvement in electronic communication with the covert operative, Mr Uluakiahoia or Mr Fu. There is no other evidence of drug paraphernalia or similar either found on your person, in your car or at the search of your home to suggest you were independently involved in trafficking.
34It was conceded by your Counsel that I can reasonably infer you would receive some modest reward either in the form of money or in the form of drugs. I accept that is the case however I cannot reach any conclusion about the amount or nature of such a reward.
35Although you were found in possession of $540 in a Gucci handbag, which in the circumstances and context you admit by your plea is reasonably suspected of being proceeds of crime, there is no evidence that that money is connected to drug trafficking. Nor is there other evidence of enrichment or lavish lifestyle.
36What is apparent is that you were at the lowest end of the trio of people involved here. Mr Uluakiahoia was a methylamphetamine cook. He was actively involved in courting the covert operative and arranging the sale with Mr Fu, who was in a position to secure and sell, and no doubt benefit from, a commercial operation.
37In all of those circumstances, I conclude that your role in this offence was extremely limited, and that there is no evidence establishing any involvement in drug trafficking activity more broadly. I conclude also that you were engaged on this one occasion with two older men who, on the basis of the evidence, were clearly higher-level players in the drug trafficking scene.
38For those reasons I assess the objective gravity of your offending as being at the very lowest end of a very serious offence.
Section 5(2H) Sentencing Act 1991
39Despite that finding, the applicable maximum penalty still acts as a guide to my discretion and in addition, I must deal with you for what Parliament has prescribed as a Category 2 offence. What that means is that I am bound by the provisions of s5(2H) of the Sentencing Act 1991.
40That section provides that when sentencing an offender for a category 2 offence I must impose a sentence of imprisonment, which is not in combination with a community correction order, unless particular circumstances exist. The argument here is that if the time you have served on remand does not meet the sentencing synthesis, then pursuant to sub-section (e) of s5(2H) your Counsel submits there are substantial and compelling circumstances that are exceptional and rare and that justify imposing a term of imprisonment in addition to making a community correction order.
41Pursuant to s5(2HC) in determining whether there are substantial and compelling circumstances under s5(2H)(e) –
·I must regard general deterrence and denunciation as having greater importance than the other sentencing principles; and
·I must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
·I must not have regard to the offender’s previous good character (other than an absence of previous convictions or findings of guilt), an early plea of guilty, prospects of rehabilitation or parity.
42Further, pursuant to s5(2I) in determining whether there are substantial and compelling circumstances under s5(2H)(e) –
·I must have regard to Parliament's intention that in sentencing an offender for a category 2 offence, only a sentence of imprisonment that is not imposed in combination with a community correction order should ordinarily be made; and
·I should have regard to whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
43As higher courts have said the burden imposed by those provisions is a heavy one and not capable of being lightly discharged.[4] However, it cannot be impossible to meet.
[4] Farmer v The Queen [2020] VSCA 140; Buckley v The Queen [2022] VSCA 138.
44I must undertake a two-step approach, firstly determining whether there are substantial and compelling circumstances. That is, I must determine whether the circumstances are weighty and forceful or powerful. The test may be satisfied on the basis of a combination of circumstances even where of themselves the constituent circumstances are mainly or even wholly relatively common.[5] And secondly if so satisfied, whether those circumstances are exceptional and rare, that is out of the ordinary course, unusual or special.
[5] DPP v Lombardo [2022] VSCA 204.
45In order to undertake that task I turn now to your personal circumstances.
The Plea in Mitigation
46I have been assisted by typically thorough and eloquent submissions by Mr Gwynn on your behalf, and by the raft of material obtained in support of those matters.
47In particular I have received three assessment reports from Consultant Psychologist Mr Luke Armstrong. He has had the benefit of assessing you on three separate occasions across a period of almost two and a half years. His reports are dated 2 March 2021, 5 July 2022, and 10 August 2023, with an additional letter provided dated 20 October 2022.
48In addition, I have received reports from Arrow Health Rehabilitation Centre attesting to your period as an inpatient and your ongoing engagement with their centre.
49Further, I have received a significant number of personal and professional testimonials along with a letter you have authored as part of your Plea.
Drug Addiction
50I pause to note at this point that some issue was taken by the Prosecution with regard to your drug use prior to and as the context for your offending. Mr Pickering submitted that I could not be satisfied of the level or complexity of your addiction. I do not accept that submission for the following reasons.
51You have been assessed by a variety of experts and persons in the field of drug rehabilitation. Your self-reports have been consistent and to my mind are telling in their detail, not only in relation to the chronology and pattern of your drug addiction, but also in your descriptions of the impact on you, the behaviours you manifest and also in the descriptors of your withdrawals.
52In addition, I have received a number of testimonials from those close to you who describe your behaviours prior to your remand and after it. Those descriptions support your own account.
53Further, you undertook inpatient rehabilitation for three months where I can conclude you were monitored and assessed in an ongoing way.
54Lastly, you gave evidence on oath about your drug addiction in an application in this Court to change your plea for the sole purpose of being eligible for a Drug Treatment Order through the Drug Court.
Personal History
55You are now 24 years old.
56You were born in Baghdad, Iraq, and are one of five siblings. Your family fled the country at the height of its civil breakdown. You moved to Australia after staying for two or three years in Greece.
57Your father was a professional soldier and was a prisoner of war for several months. He is a veteran of the Iraq-Kuwait conflict. He did not talk about his experiences however you would overhear conversations with others. You have memories of sleeping in an adjacent bedroom and that it was a common experience to suddenly wake in the middle of the night due to screams from your father who suffered from recurring nightmares, which appear to be a symptom of PTSD. On arrival in Australia he worked in a car wash and then as a cleaner.
58You describe a difficult early relationship with your father. You say he was inflexible, strict and harsh. To your mind, the relationship was defined by criticism. Until only recently that difficult relationship continued.
59You reported to Mr Armstrong that you experienced chronic academic difficulties at school, in particular with literacy and maths. You were provided with a teacher's aide; however you failed to thrive or develop normally academically. According to Mr Armstrong that self-report is consistent with the testing he conducted.
60You also report struggling socially and experiencing chronic bullying. Unsurprisingly for those reasons you disliked school and at times were in trouble.
61You attended Craigieburn Secondary College for your secondary education and you do say it was an improved social experience however you continued to struggle academically. You began to truant in the context of academic failure and feeling that you could not meet your parents' expectations.
62According to Mr Armstrong your misbehaviour was secondary to humiliation and not a feature of any behavioural disorder.
63You managed to complete Year 12 through the VCAL program.
64After completing VCAL you worked at McDonalds for a year as a casual, and then worked in construction for another year before becoming focused on carpentry.
Bugmy v The Queen[6]
[6] Bugmy v The Queen (1990) 169 CLR 525.
65It was submitted by your Counsel that your early life experiences enlivened the principles enunciated by the High Court in Bugmy v The Queen 'to a modest degree'. I do not accept that submission. I do not see evidence here of neglect, disadvantage, abuse or deprivation which would enliven those considerations.
66Nonetheless I take into account the impact of your father's own trauma on his relationship with you, coupled with your experiences in education. As Mr Armstrong stated, your experience of disturbed and conflictual attachment with your father and the associated feelings of inferiority and inadequacy were further disrupted by your chronic academic problems. That in turn led to your early experimentation with drug use.
Drug Use
67In the context of truanting and some minor misdemeanours at school, you report that you began experimenting with drug use. You first engaged in illicit drug taking at about 14 years old, in the form of cannabis. By Year 9 you were using most days, and then at least two to three grams daily by age 17. You experienced powerful withdrawal-like symptoms. You report that the mellowing effect of cannabis quelled your internal world which was defined by agitation, anger and resentment.
68You first experimented with cocaine at age 16. By age 18 you were using that drug regularly.
69In the context of drug use your relationship with your parents further deteriorated. You had a relationship with another drug user and in that context of your parents' disapproval, you moved out of home against their wishes when you were approximately 19.
70From the time you were 18 to 19 years old you were working as a carpenter/labourer full-time.
71You began binging on cocaine from Thursday to Sunday, using up to 7 grams. All of your income was poured into buying cocaine with your friends. You say that by age 19 you were 'chasing it' that is using cocaine regularly to avoid withdrawal.
72You intertwined that stimulant use with cannabis as a means to manage stimulant withdrawal which you describe as severe fatigue. That fatigue in turn began to affect your motivation to work. By 19 you began using cocaine at work and according to Mr Armstrong by that age you were most probably biologically addicted.
73No doubt in the context of your drug use and lifestyle, you were kicked out of home in around June 2019. For a time you stopped using cocaine but the cannabis use increased.
74In 2020, aged about 21, you began a carpentry apprenticeship. You report that your concentration was scattered and you were constantly in a state of agitation due to drug intoxication and withdrawal, resulting in various workplace incidents and accidents. Ultimately you suffered a serious workplace accident where you shot yourself in the leg with a 3-inch nail gun. In the month following you were prescribed Oxycontin for pain. You abused that medication, taking five times the prescribed amount. You then substituted OxyContin for Valium and report a serious opioid and continued cannabis addiction by the time you returned to work in July 2020.
75You continue to struggle with motivation to work and in around August 2020 you quit work. Without that structure your drug binges significantly worsened, and you became consumed with obtaining, using and recovering from taking illicit drugs. You began to abuse cannabis in the morning as well as increasing the amount you were using.
76You also reported relapsing to cocaine use after your work injury, and that when cocaine was unavailable you would substitute that drug with methylamphetamine at least twice a week. Those details were repeated by you in your recent community correction order assessment.
77In evidence at the change of plea hearing on 25 October 2022, you confirmed your account given as part of the Arrow Health assessment, that you were spending thousands of dollars per week to support your addiction.
78You also gave evidence on oath about the interplay of those substances, including the insomnia caused by the stimulant drugs, and the sedating counter-effect of cannabis and benzodiazepines.
Arrest and Remand
79You were remanded for this offending on 11 November 2020. You report experiencing withdrawal-like symptoms for 2 to 3 weeks including a daily pattern of sweating, insomnia and agitation alongside a loss of appetite. You were candid in your first assessment with Mr Armstrong in acknowledging ongoing cravings.
80According to Mr Armstrong, at the time of your arrest your narrative is consistent with the pattern of serious polysubstance abuse. You meet the DSM‑5 criterion for stimulant, opioid/anxiolytic and cannabis use disorders.
81Your various self-reports are also supported by the letters from those close to you. Your mother describes you prior to your arrest as:
‘‘a troubled kid he would never listen to me or his father. He used to sleep outside the house would come back home in the morning and would never tell us where he was.’
82She confirms you sustained a work injury in your role as a carpenter and could not work. She says:
‘The more Addai wasn’t working due to his injury the more I saw my son change for the worse. The sleeping outside turned into not coming home for days and the days he was at home Addai didn’t seem himself, he would either be really energised or have no energy and looked disconnected and unfazed (sic) and completely out of it.’
83She says she later learnt the reason for that behaviour was because of drug use and addiction.
84Your then girlfriend, now fiancé, similarly observed a deterioration in you particularly after your workplace injury. She says that incident had ‘a severe impact’ on your well-being in particular because you were unable to provide for yourself, your family and her. She says being from a Chaldean background there is a great cultural responsibility on males to act as a provider. She says you distanced yourself from social activities due to what she describes as the ‘deterioration of your mental health’. She says ‘on multiple occasions he expressed his sadness, his lack of enjoyment for life and his feelings of hopelessness to me.’
85The fiancé of your business partner also describes the time of your workplace injury sending you into ‘a spiral’ where you became a very closed and unhappy person.
86Mr Armstrong first assessed you at an in-person assessment on 1 March 2021 for the purpose of a Bail Application. At that time he described you as ‘young, immature and naïve’. Given those features he was reluctant to diagnose you with a personality disorder however stated ‘there are certainly traits of a borderline personality disorder.’ He outlined those to include unreconciled and unrecognised efforts to avoid real or imagined abandonment, including an attempt to join the military as a means of satisfying your father's expectations; marked identity disturbance specifically, unstable self-image or sense of self; and effective instability due to marked reactivity of mood, specifically irritability, agitation and anxiety.
87He stated that those disturbances are entwined with a chronic pattern of substance misuse, noting your substance use reflected a means to self-medicate undetected and unreconciled personality disturbances.
88Mr Armstrong undertook various formal tests. Of note, your profile revealed disorganised behaviour with poor judgement; a full-scale IQ placing you in the low average range; that you are academically significantly delayed including that it appears you did not thrive beyond a primary school level of Grade 5; and that you may have an undiagnosed learning disorder.
Bail
89You appeared before His Honour Justice Lasry in the Supreme Court in an application for Bail on 24 May and 2 June 2021.[7]
[7] Re Warda [2021] VSC 323.
90The report of Mr Armstrong was relied on and in particular his recommendations for treatment and his opinion that you were a good candidate for rehabilitation via inpatient residential treatment followed by out-patient treatment in the community.
91He noted that you had told him about the fact that your father ‘fell apart’ on your arrest. He opined that seeing your father in tears was a jolting experience for you. You were said to now fully comprehend the gravity of your situation, and while remand was seen as a significant motivator for you, the motivation of reconnecting with your father was a real driver.
92His Honour found exceptional circumstances existed in your case to warrant a grant of bail. Specifically, the combination of the agreed period of a likely three-year delay between charge and any trial, the substance abuse issues you faced along with your amenability to treatment, your young age, strong family supports, and your lack of a prior criminal record.
Arrow Health Rehabilitation Centre
93The focus of containment of your risk was that you would be bailed to the Arrow Health Rehabilitation Centre for inpatient rehabilitation.
94You were bailed on 7 June 2021 with a surety of $300,000 provided by your father. You were taken directly from custody to Arrow Health. Your bail included stringent conditions namely to reside at and follow all directions of Arrow Health along with a strict curfew, daily reporting to police, provision of drug screen results to the informant, a limitation on mobile phone ownership, and informant access to your mobile phone and internet usage. Movement from Arrow Health could only occur by Court Order.
Rehabilitation
95Arrow Health is a specialist drug and alcohol treatment facility in Woodend, Victoria. It provides 24-hour supervision to inpatients, with a maximum of 20 patients at a time. Any custodial patient who absconds is immediately reported. Activity and movement of residents is monitored by CCTV cameras. The facility has a relationship with Kyneton Police and any breach of a condition of the program or of bail would be immediately reported to police, the resident's solicitor (where involved) and the resident's family. Cost of the first month of the program is $14,000 and thereafter $12,000 per month. That cost was paid by your family.
96The Arrow Health program is based on abstinence. Thorough psychosocial and medical assessments are conducted in order to develop an individual treatment plan.
97Letters dated 28 August 2021 authorised by Alcohol and Drug Counsellor and Div1 registered mental health nurse Michelle Fenton and dated 6 July 2022 authored by Psychologist and Addiction researcher Dr Ariel Roxburgh, confirm that you engaged in your recovery and successfully completed three months of residential treatment in Woodend, and 6 further weeks of outpatient treatment, provided by Arrow Health.
98According to the report of Ms Fenton, whilst initially a passive participant, you quickly became proactive in engaging with the extremely rigorous and comprehensive program, which included daily group therapy and peer support, and weekly therapy with a clinical psychologist. The treatment program also included community work, physical exercise training, 12-Step Fellowship meetings, twice weekly random supervised urinalysis drug screening, alcohol breath tests, and study and educational groups.
99Various areas of growth and insight are apparent from the written reports. You engaged in a journalling process, improving your level of emotional intelligence. You became vigilant about your mother's deteriorating physical health and of your own volition applied for additional calls with her at the time of her surgery. Notably you also ensured you were granted an additional call on your father's birthday. You were described as having a strong sense of family with a large extended family in Melbourne.
100You were able to identify your triggers and developed strategies to cope with those behaviours. The structured routine enabled you to address insomnia. You are described as addressing guilt and shame around your past substance use and offending behaviour including the significant struggle of accepting your past behaviours and their consequences for you and your family.
101Towards the end of your stay in in-patient treatment, you mentored four residents and, in the words of Ms Fenton, provided vital peer support to those people withdrawing. You were made Senior Resident in your final month of the program.
102Outpatient treatment was recommended, with you and your parents attending a Continuing Care Plan meeting to ascertain your needs following discharge.
103Bail was varied on 7 September 2021 so that you could return to live with your family but mandated your participation in the 'Aftercare' program. The stringent bail conditions remained.
104You successfully completed the outpatient program. That required twice-weekly counselling sessions with Dr Roxburgh, peer support and meditation. You are said to have been ‘engaged, regularly shared his thoughts and feelings, and provided support for others in the program.’
105All of your drug screens throughout the Arrow Health programs returned negative results. You report that you have not used illicit drugs since your release. This means that you have been abstinent from drug use since your arrest in November 2020.
106You have no other matters pending.
Current Circumstances
107Mr Armstrong assessed you a second time in June 2022. At that point you were living at your family home and had secured full-time employment. Your relationships with family had 'significantly reconciled'. You reported that for the first time in your life, you and your father have a positive relationship. Your return to the family drug-free and dependable was said to be a primary factor in that reconciliation. You enjoyed a new trust from your family.
108Mr Armstrong also stated that –
‘a related, critically important shift’ occurred in your peer relationships. Positive peer associations are recognised within research as one of the most powerful predictors of recovery.’
109You had dissociated from drug using offender peer groups towards positive peer associations.
110It was that shift which led to recent business success. You and your long-time friend Mr Ronaldo Baho reconnected. Together you established a business, The Victorian Transport Group. Mr Baho has been present in Court throughout these proceedings. Your business makes deliveries from companies to customers, including your major contract with Harvey Norman. You work in an administrative capacity at your business, coordinating deliveries and accounts as well as doing deliveries yourself. You currently work up to 6 days per week.
111You described that work as being a corrective experience and positively identified yourself with your newfound employment stability. You proudly identified yourself as the primary breadwinner supporting your parents who were by that stage on pensions, as well as offering financial support to your siblings.
112According to Mr Armstrong, you were showing insight and understanding of your risks and were now acting in line with positive values and belief systems. Your mental health had stabilised and according to him the personality disturbance which he observed entwined with your drug use trajectory was already in sustained remission. He described your identity as stable; you are no longer triggered by relational problems and that you are able to discuss clear, concrete strategies around managing your mental health in the absence of substances including both alcohol and drugs. He said ‘The kind of anxiety, irritability and mood instability which characterised him in March 2021 was not apparent on assessment today.’
113Mr Armstrong, acknowledging that he could not corroborate your claims of being drug-free, noted the positives of your presentation and the fact your progress was corroborated by your sister in a phone interview. She was able to describe the changes since your arrest. Where she had previously observed you using drugs, she no longer observed that behaviour and stated that you ‘no longer stink of drugs.’
114He also stated –
‘Mr Warda was able to articulate genuine remorse. Specifically, now that he is drug free, and having witnessed the suffering of other drug users through his treatment experience, he can articulate how drug offending brings significant suffering in the community.’
115In my view that is a significant gain.
116For those reasons Mr Armstrong assessed you as being at a significantly reduced risk of relapse and drug-related offending.
117Mr Armstrong assessed you a third time on 10 August 2023. He sought collateral information again from your sister and you provided him with a reference written by Father Mina George, your local priest.
118He noted that you remained in sustained remission, that your mental health has shown a similar trajectory of stable recovery and improvement. He stated –
‘His presentation today was transformative in my view and telling of his recovery overall…. His carriage of himself is now consistent with the many positives aspects to his life.’
119He noted that you continue to run your own business with dreams of expansion.
120You were able to reflect on your life prior to your arrest and on the shame brought to your family name. You are proud to continue supporting your family financially. He noted that despite your limited education you have maintained a viable business. He reports that although you have a business partner, you do the majority of the work yourself with one other employee. You are responsible for organising the work timetable, trusted to take payment from customers, and to deliver and install furniture and bedding in private dwellings.
121You described your business as your pride and joy. You have an understanding that the structure of your business is a key factor of your ongoing stability and mental health, saying ‘it keeps me focused’.
122There was no evidence of mental health disturbance indicative of risk. Mr Armstrong opines that you continue to present with a high level of insight into your vulnerabilities and that alongside your determination to remain drug-free you are well aware that some triggers will remain long-term, and acknowledged the need for ongoing management of your mental health. You were able to articulate appropriate maintenance strategies to manage those.
123Your positive relationship with your parents, wider family and a positive peer group all remain stable. You have made a long-term commitment to your partner and are now engaged. You have good support from your business partner personally and professionally.
124Mr Armstrong states –
‘Of significance which speaks to the strength in Mr Warda’s recovery to date, is a central thread of maintenance investment in his rehabilitation. Every aspect of Mr Warda’s life speaks to an appreciation of his life versus his life since arrest.’
125In summary, he notes having assessed and reviewed thousands of individuals at various junctures of addiction and rehabilitation, achieving full rehabilitation is a mountain to climb. He talks about the process of recovery and in particular that that predictive strength of strong rehabilitation depends both on the time demonstrated as well as recognition of the complexities in mental health, peer group and ongoing self-maintenance remaining at the forefront of the recovering addicts mindset. While he confirms your rehabilitation is not complete, he says however 'he has consolidated the foundations of what would currently be described as very good rehabilitation prospects at this juncture in time'.
126In my view your prospects of rehabilitation are extremely positive.
127As at today, those gains continue in a steady trajectory.
128Many of those matters are confirmed in personal references. Your family and friends talk with one voice of what they describe as your 'transformation' following rehabilitation, and how hard you have worked to effect this change in your life. They say the person prior to your arrest is vastly different to the young man you are today. They talk of your hope for a positive future. It is clear that you are very much loved and supported by your family, many of whom have been present throughout these proceedings.
129I have also received a number of references from people who deal with you in your professional life, as well as your priest. Importantly the professional references are written in knowledge of your offending and are addressed to the Court.
130Like your friends and family, your colleagues and managers hold you in high regard, describing you as friendly, motivated and hardworking. One Manager notes that they have received many compliments about your services from clients.
131Your priest likewise echoes these sentiments. He, like a great number of your referees, highlights your remorse for your offending and your commitment to make amends for those past failures.
Remorse
132There are many accounts of your expressions of remorse throughout the tendered material.
133The most significant is in the form of a letter written by you. You say you want to begin by highlighting that you are extremely aware of the gravity of your previous actions and that you are ashamed of what you have done. You describe your offending as immoral and admit that your moral values were compromised at that time. You say:
'This is not me. I am a person who loves his family, I am hard-working, and I am trying everything I can to create a better life for myself. I deeply regret the actions that I committed and believe I have tried and shown a great desire to fix the underlying personal issues that led to the offence that took place.’
134Your Counsel described your period of remand as both a curse and a blessing. You yourself say ‘The experience kickstarted a drive in me to change my life.’ You talk of the significance of the Arrow Health Rehabilitation program and acknowledge how fortunate you were to be granted bail.
135You talk of the fact your business gave you a chance to make something of yourself and of your disappointment at having to stand down as a director given the criminal proceedings. You say that did not deter you and you have continued to work tirelessly for the success of that business.
136You confirm compliance with your bail conditions saying:
‘I have not taken my chance at freedom lightly. … I have used this experience to fuel the positive actions that have helped me turn my life around for the better. I don’t want to waste my life. I now look forward to every new day, I have hope for a great future.’
137A letter written to a sentencing Judge should be viewed carefully. It may be self‑serving and can be difficult to assess. Given the extent of the collateral information here, in my view yours is a genuine expression of your understanding of the seriousness of your offending, a testimony to your efforts to change and a reflection of true remorse.
Plea of Guilty
138Your expressions of remorse are reflected in your plea of guilty. There are all sorts of reasons people plead guilty. Not all pleas reflect remorse. Higher Courts have stated that a plea which does reflect genuine remorse should result in a discount in sentence. That is because an expression of genuine remorse has a relationship to your prospects of rehabilitation and to the need for specific deterrence. I will return to those matters.
139You have pleaded guilty to this offending and you receive the benefit of that plea. A plea of guilty has a utilitarian benefit in that it saves the time and cost of a trial. I take those matters into account.
140You offered to plead guilty to the current charge only months after your arrest, on 12 February 2021. That was prior to any bail application and prior to a committal mention. That offer was rejected. Your matter was tied up with the matters of your co-offenders and in that sense was complicated.
141A year after it was made, the Prosecution revisited your offer and it was ultimately accepted. You were arraigned on 28 February 2022.
142There was no dispute that I can therefore treat your plea of guilty as one entered at the earliest opportunity.
143In addition, your plea offered in February 2021 was made at the height of the COVID-19 pandemic and therefore you are entitled to the full weight of the discount outlined by the Court of Appeal in Worboyes v The Queen[8].
[8] Worboyes v The Queen [2021] VSCA 169.
Delay and Drug Court Application
144The matter has had a rather tortured path through this court, at times due to delays caused by the pandemic.
145In the face of those delays you wished to avail yourself of the services provided by the Drug Court. You were ineligible due to the fact you had already entered a plea of guilty. You therefore made application to change your plea for that purpose.
146That application was heard by His Honour Judge Maidment on 25 September 2022. You gave evidence on oath about your drug addiction, your efforts to rehabilitation to date and your desire to undertake the further program offered through the Drug Court. His Honour granted your application. Sadly, the demands on the Drug Court are such that you were ultimately not accepted to that program. In short – demand for places was too high, and you had done too well.
147That demand for places for drug treatment neatly highlights one of the difficulties in sentencing you. There are many people in the community and in custody who suffer the scourge of drug addiction. Many cannot find or afford treatment. Many are unsupported and are entrenched in the cycle of addiction and offending. It is those facts which place general deterrence and denunciation at the forefront when it comes to sentencing drug traffickers.
148I have not lost sight of those matters. I have not lost sight of the demands of s5(2H) and the expectation that ordinarily a term of imprisonment is the only appropriate outcome.
Submissions at to Disposition
149There is no question that imprisonment should be the result of trafficking in a commercial quantity of a drug of dependence. It is a serious offence with serious implications for the community. The amount of drugs trafficked here is 4 times the threshold amount.
150You have served a period of 209 days, almost 7 months, on remand for this offending. The issue for me to determine is the appropriate disposition in all the circumstances of your case.
151Your Counsel Mr Gwynn submits that the time you have already served is sufficient to meet the sentencing task. In the alternative, that the term served in combination with a Community Correction Order is open to me. He submits returning you to custody would be counterproductive and unnecessary.
152Mr Pickering on behalf of the Prosecution, while conceding that your youth, lack of prior criminal history, delay and efforts towards rehabilitation are significant, submits that a term of imprisonment with a head sentence and non-parole period is the only appropriate disposition. He disputes that the test in s5(2H)(e) is met.
Current Sentencing Practices
153I have given consideration to current sentencing practices for offending such as this. As always, there are similarities and differences in both the offender and the offending, in particular the role you played is vastly different to most cases of commercial quantity trafficking.
154Ultimately, I must impose a just sentence in all the circumstances, and that is what I have endeavoured to do.
Sentencing Act s 5(2H)(e) Test
155In that regard, given the mitigating features here, I have given consideration to the fact it would be possible for me to impose a straight sentence of imprisonment on you reflecting the period of pre-sentence detention. The test in s5(2H)(e) would not need to be met. However, in my view the time you have already served is not enough.
156The question then becomes whether I should return you to imprisonment, or whether there are substantial and compelling circumstances which are exceptional and rare and which justify imposing a different disposition.
157To make that determination I return to the legislative test.
158In your case there are some powerful matters which have weighed heavily in the sentencing synthesis. While some are more commonplace, there are several which in my view are substantial and compelling of themselves. In combination, in my view, they satisfy the test.
Role
159The first is my assessment of your role in the offending. My conclusion in that regard takes this to the lowest level of seriousness of trafficking in a commercial quantity of a drug of dependence.
160The offence of trafficking in a commercial quantity of a drug of dependence is squarely aimed at a category of offenders who are engaged in drug trafficking at a substantial level, likely for substantial profit – whether as a one-off or whether in an ongoing way. As quoted by the Court of Appeal in Pidoto v R[9], when reducing the quantity to which that offence would apply, the then Attorney-General referred a number of times to the 'truly commercial nature' of the offence and the motivation of economic profit. That is, the offence of trafficking in a commercial quantity is intended to apply to ‘ …the sorts of drug traffickers who ply their trade in expectation of enormous profits.’ The offence applied to quantities and monetary values which ensured ‘that trafficking ventures which are truly commercial in nature attract the higher maximum penalty …’ and to ‘drug ventures which are blatantly commercial in nature’.
[9] Pidoto v R (2006) 14 VR 269.
161There is no doubt your co-offenders were involved in a truly commercial enterprise in expectation of significant profit. However, that does not describe you or your role in this offence nor the type of reward you were likely to receive.
162While lesser players who are critical to the success of such an enterprise must be caught by the provision, your role here is markedly different to what is usually involved. In my view that is a powerful factor in mitigation. Of itself it is compelling.
Youth
163The second is your age. You are a youthful offender, being just 6 weeks past your 22nd birthday at the time of this offending. The principles relevant to youthful offenders have been applied to offenders up to the age of 25 at the time of offending.[10]
[10] Frecker v The Queen [2021] VSCA 331.
164Despite the usual punishment for an offence like this, the consideration in the circumstances of a youthful offender are radically different. The principles stemming from the Court of Appeal decisions of Azzopardi[11] and Mills[12] are well understood.
[11] Azzopardi v The Queen [2011] VSCA 372, paragraphs 34 to 40.
[12] R v Mills [1998] 4 VR 235.
165Those principles recognise three major factors of sentencing a young offender. First, a lack of maturity, insight and judgment may mean a younger offender may not fully appreciate the nature, seriousness and consequences of their offending. In that sense their culpability is lessened.
166Second, courts recognise the potential for younger offenders to be redeemed and rehabilitated and that potential exists because young offenders are typically still in a state of mental and emotional development and may be open to influences designed to positively change their behaviour. It is for that potential that it has been stated that the rehabilitation of young offenders is one of the greatest objectives of the criminal law.
167And third, in sentencing young offenders, courts are cognisant that the effects of incarceration in an adult prison on a younger offender will more likely impair rather than improve their prospects of successful rehabilitation.
168The expert opinion of Mr Armstrong is that returning you to the custodial environment would likely expose you to more hardened and sophisticated offenders, and may bring about a deterioration in your mental state and related drug recovery.
169Further, he refers to the fact of your own business and says you are ‘the driving force that runs the business on a daily basis.’ That fact is corroborated by the reference from Mr Baho. Specifically, Mr Armstrong says:
‘My clinical view is that Mr Warda’s participation in the business is a central aspect to his successful ongoing rehabilitation. He defines his identity now as a legitimate business owner. [He] gains purpose to his life by engaging in this business on a day-to-day basis. [His] sense of self as it pertains to his identity and self-esteem is also defined by his business. If this structure were interrupted by imprisonment, my view is that it would impact negatively on Mr Warda’s overall rehabilitation prospects.’
170I take those considerations into account and in particular the focus on rehabilitating and reclaiming you.
171Your age, and the considerations that attracts, of itself is a powerful mitigating feature.
Delay
172Third I take into account delay. Delay is relevant in two ways. First an offender experiences the anxiety of having unresolved serious offences hanging over them for a period of time. Second it is relevant where an offender can demonstrate efforts towards rehabilitation in the intervening period. Both of those considerations apply here.
173It is now almost three years since the time of your offending. You have been in a state of uncertainty since then and have effected your own rehabilitation in that period.
Pre-Sentence Detention and Inpatient Rehabilitation
174Fourth, I take into account that you spent 209 days in custody, your first and only time incarcerated.
175I also take into account in a general sense that you have spent time in residential rehabilitation. Consistent with the Court of Appeal's decision in R v Akoka[13] you are entitled to credit for both the rehabilitative aspects of that engagement and the punitive aspect. Your residence at the Arrow Health Rehabilitation Centre was a condition of your bail which compelled you to live within that facility and within its rules. The rules were stringent and quasi-custodial.
[13] R v Akoka [2017] VSCA 214.
176You spent 3 months at that inpatient facility.
177You have also abided by strict bail conditions when participating in the outpatient program and in an ongoing way while living in the community.
COVID-19
178Fifth, I take into account the fact that your period of time on remand commencing as it did in November 2020 and running until June 2021 was at the height of the COVID-19 pandemic. That period represented the most difficult time for prisoners in the modern era. Higher Courts have recognised that difficulty and stated that palpable discounts in sentence should apply.[14] That too is a compelling factor here.
[14] Surtees v The King [2023] VSCA 42, [10].
Rehabilitation efforts
179Sixth, I take into account your demonstrated, and successful, efforts toward your rehabilitation. Through no fault of your own, in fact as a result of your excellent progress, you were ineligible for further formal treatment through Drug Court. That is an unusual feature here.
180In my view, your proven abstinence from drug addiction, and your commitment to rehabilitation and contributing to the community, mean the need for specific deterrence and community protection, while not eliminated, have little work to do.
181In addition to your own efforts, I take into account the protective factors of your significant family support, including your fiancée, and the extended network of prosocial people around you.
182Those facts are substantial and compelling features of your plea. They are worthy of significant weight.
Remorse and Plea of Guilty
183Seventh, I take into account your genuine remorse and insight, reflected in your plea of guilty.
Employment
184Eighth, I take into account that as a 22-year-old you started your own business. Since that time you have successfully operated that venture. You are a contributing member to the community, and the feedback about your trustworthiness and your business skills is very positive. Again, that is a powerful factor in your favour.
Conclusion – Substantial and Compelling Circumstances
185In my view, your role, youth, time in custody during the COVID-19 pandemic, efforts towards rehabilitation and the starting of your own business are matters which of themselves are substantial and compelling. In combination with your lack of criminal history, your plea of guilty, your remorse and the delay including lack of availability of drug court treatment, form a combination of circumstances which are substantial and compelling.
Conclusion – Exceptional and Rare
186In addition, a number of those features are exceptional, rare, that is out of the ordinary, special. They include the role you played, your younger age which is an uncommon feature in commercial quantity drug trafficking, your commitment to rehabilitation and the insight and remorse that has led to, and the start and successful pursuit of your own business. Together those features along with time in custody during COVID, the delay and your plea of guilty reflecting genuine remorse are exceptional and rare and to my mind justify a disposition which does not see you return to custody.
Community Correction Order
187I also take into account what the Court of Appeal has said about the operation of a community corrections order. In the case of Borg v The Queen[15] the Court reaffirmed its earlier statements on the topic saying:
“it remains clear from Boulton[16] that ‘a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.’
[15] Borg v The Queen [2020] VSCA 191.
[16] Boulton v The Queen (2014) 46 VR 308.
188A CCO is not a get out of gaol free card. It is an order which requires an ongoing restriction and engagement. I have received an assessment report attesting to your suitability. The assessor commends you on your progress so far and the steps you have taken towards rehabilitation and opines that you will continue to rehabilitate all aspects of your life through a CCO.
Mercy
189Lastly, I note that:
“There must always be a place for leniency … when the judge forms a view … that leniency at a particular stage of an offender’s life might lead to reform.”[17]
[17] R v Osenkowski (1982) 5 A Crim R 394.
190In my view there is a place for a degree of mercy here. To return you to custody would risk losing what you have gained. The community's best interests are served in you continuing on the path you are now on.
191In all the circumstances, the appropriate sentence in my view is as follows. If you could stand Mr Warda.
Sentence
192On Charge 1 of trafficking in a commercial quantity of a drug of dependence you are convicted and sentenced to 209 days' imprisonment in addition to a Community Correction Order of 489 days duration. I have chosen that period because it will take you to the end of 2024, just over 4 years since your offence was committed.
193I do not intend to impose unpaid community work. The overtly punitive aspect of a CCO, usually reflected by unpaid community work, has already been met here by the term of imprisonment, in my view.
194The conditions of the community corrections order are as follows in addition to the core conditions.
i.that you be under supervision;
ii.that you submit for testing and treatment for drug and alcohol addiction, including urine testing as directed; Although this was not recommended by the assessor given your abstinence, I include that condition in case those circumstances change in order to give Corrections Victoria a power to direct you for testing and treatment;
iii.that you submit to assessment and treatment for your mental health; and
iv.that you return for Judicial Monitoring in 6 months so that I am informed of your progress. That date will be 31 January 2024. I intend to bring you back one time only, assuming that all is continuing to go well.
195Mr Warda, you are required to agree to comply with those conditions and that order before I can impose it.
196Do you agree to undertake the Community Correction Order that I have outlined?
197OFFENDER: Yes, Your Honour.
198I am required to explain to you the consequences of any breach of that community corrections order. So if you reoffend in any way which is punishable by imprisonment you would be in breach of that order. Equally if you do not comply with the conditions of the order and the directions of Corrections Victoria you would be in breach of that Order. In either case you would be brought back to me and I may be required to then re-sentence you on the original offending, namely the trafficking offence. Do you understand that?
199OFFENDER: Yes, Your Honour.
200HER HONOUR: All right. In a moment the community corrections order will be printed out and provided to you for your signature. Your signature is your promise that you will undertake that community correction order.
Pre Sentence Detention
201I declare that you have already spent 209 days in custody and that that term should be reckoned as having been served under this sentence.
Summary Charge 2
202In relation to Summary Charge 3, that is the possession of property reasonably suspected of being proceeds of crime, you are convicted and fined $540.
Section 6AAA
203But for your plea of guilty, so if you had not pleaded guilty, the sentence I would have imposed would have been one of 4 years' imprisonment with a non-parole period of 2 years 3 months imprisonment.
Ancillary Orders
204The Prosecution has filed a draft forfeiture order and a draft disposal order. Those are not opposed by you. I propose to make those orders in the terms sought. Have a seat there, Mr Warda. Are there any issues to raise counsel, before I have Mr Warda sign the community corrections order?
205MR PICKERING: No, Your Honour.
206MR GWYNN: No, thank you, Your Honour. Can Mr Georgiou accompany Your Honour's associate?
207HER HONOUR: Yes, absolutely.
208MR GWYNN: Thank you, Your Honour.
209HER HONOUR: Thank you very much.
210Thanks very much counsel for your assistance.
211Mr Warda, you will no doubt have a conversation with Mr Gwynn and Mr Georgiou about your commitments for the community corrections order and you need to sign in within a couple of days, and also they'll explain to you what happens before 31 January; I get a report that will tell me how you are going. As I said to you, assuming all is going as well as it is now, I only intend to bring you back that one time just to monitor your progress. So I hope that the report I read is a positive one and I will see you on 31 January. All right, thanks very much.
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