Director of Public Prosecutions v Zarghami
[2019] VCC 1520
•18 September 2019
jun
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-18-01785
Indictment No: H13518683
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EMAD ZARGHAMI |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 3 to 11 September 2019 Verdict: 11 September. Plea: 16 September 2019 | |
DATE OF SENTENCE: | 18 September 2019 | |
CASE MAY BE CITED AS: | DPP v Zarghami | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1520 | |
REASONS FOR SENTENCE
Subject: Trafficking in cocaine; Possession of document containing information about trafficking; Commit indictable offence on bail.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Buckland | Office of Public Prosecutions |
| For the Accused | Mr N Papas (at Trial and Plea) Mr G Tsogas (at Sentence) | GT Legal Partners |
HIS HONOUR:
1 Emad Zarghami, on 11 September after a short trial, a jury found you guilty of one charge of trafficking in cocaine. That was Charge 2 on the indictment.
2 You had earlier pleaded guilty to the alternative charge of possession of that same cocaine as well as the possession of the document charge. Pursuant to section 253B of the Criminal Procedure Act 2009, I have set aside the guilty plea in relation to the possession of cocaine charge given that I am dealing with you for the trafficking in that same drug. The possession was laid as an alternative.
3 The jury acquitted you on the charge of dealing in the proceeds of crime. (Charge 1)
4 Finally you have pleaded guilty to a related summary matter of committing an indictable offence whilst on bail.
5 I remitted back to the Magistrates' Court the summary offence of refusing to comply with a direction. That was Charge 6. I have struck out summary offence Charge 7.
6 The summary of prosecution opening for trial, with the exception of the reported discussions with Police at the scene about the drugs and cash, faithfully sets out the evidence actually led at trial. The discussions were not led before the jury as they were not recorded or confirmed on tape and hence were not admissible.
7 On the afternoon of 26 December 2017, you were stopped by police after leaving the Crown Casino car park. You were asked to produce your licence. You did so, out of a wallet bursting with cash. You were then searched and a sizeable amount of cash (in the thousands) was found in your pocket along with, in that same pocket, an iPhone and a Blackberry device. A search of your car was conducted. 261 grams of relatively high purity cocaine was found in the boot of your car. Valuation evidence was led at trial. The cocaine was in a backpack in the boot. Also in that same backpack was over $100,000 in cash.
8 You made what was essentially a no comment interview when interviewed by the police. You told the police that you did not have the PIN for the Blackberry. You provided the code for the iPhone that you were carrying and a later examination of that phone uncovered a list of names and amounts. On your key ring was a USB stick which contained a copy of ‘Uncle Fester’s Secrets of Manufacture of Methamphetamine.’ Hence the section 71E charge laid under the Drugs, Poisons and Controlled Substances Act.
9 You gave evidence before the Jury of your success as a gambler. You said that the money alleged by the prosecution to be the proceeds of crime in fact came from your great success at gambling, with those legitimately obtained funds having then been invested in cryptocurrency transactions. You told the jury that you had recently, prior to the point of apprehension, cashed out of those trades and that the money in the backpack related to those legitimately obtained and then retrieved funds. As to the drugs, you told the jury that you had never in the past purchased more than an ounce of cocaine. You described how your dealer was in urgent need of money and was heading overseas and that you decided to help him and yourself out by buying $50,000 of cocaine for the discounted price of $40,000. You told the jury it was all for personal use and that it was kept in the car to avoid the risk of your parents searching your room, finding the cocaine and disposing of it.
10 Now it was never disputed by the prosecution that you had been dealing in cryptocurrency or that there was some evidence of your gambling in the past. Nor was it in any way disputed by you that you possessed the money and the cocaine in the backpack. Rather the issue at trial was how those funds had been obtained by you, whether the jury could be satisfied beyond reasonable doubt that they were proceeds of crime, and satisfied beyond reasonable doubt as to your possessing the cocaine for the purposes of sale, which was the way the trafficking was put against you. You have been acquitted on the proceeds of crime charge. Given the verdict on the trafficking charge, plainly the jury were not impressed by your evidence in relation to your reasons for possessing the drug. They were satisfied beyond reasonable doubt that you possessed the cocaine for sale. I am not surprised. Your evidence was most unsatisfactory.
11 The acquittal on the proceeds of crime charge demonstrates just how much trust we should place in the jury system. It demonstrates amply how a jury is actually capable of applying legal directions scrupulously and fairly and affording you as they did the separate consideration of each charge brought against you. The jury had been given a direction as to the proceeds of crime charge which I am pretty confident was unduly favourable to you. They were told that they had to be satisfied beyond reasonable doubt that the entirety of the money found in your possession was the proceeds of crime. They asked a question in that regard and I told them that was the position. I directed the jury in that respect owing to the way the Crown had gone to the jury in this case. That may well explain that verdict given the fact that there were three sums of money rolled into the one total on that charge.
12 As I mentioned a moment ago, the prosecution were not permitted to lead against you the off tape conversations where you had denied that the money was even yours, this in a setting where you gave evidence before the jury and told them that the money was yours and how it had been legitimately obtained by you. The fact is 464H of the Crimes Act compelled that ruling in that respect. Those conversations were not taped or confirmed on tape. Anyway that is by the by.
13 At the end of the day, I do not need to be concerned as to the source of the money. What I must do is give you the full benefit of the acquittal on the proceeds of crime charge.
14 However the existence of that money is an undisputed fact. So too other evidence touching upon the car you had purchased in May of 2017 for over $40,000 and other evidence touching upon your extravagant lifestyle, including extravagant spending at Crown Casino.
15 Your possession of over $100,000 cash makes it abundantly clear that your trafficking was not committed out of any financial need. That is so irrespective of where that money came from.
16 You possessed this sizeable quantity of cocaine for sale. It had nothing to do with any financial plight or indebtedness. Nor am I in any way satisfied that your personal use of drugs had any significant role to play at all in this trafficking.
17 For whatever reason you had very much lost your way after an encouraging time at school and then progression to university. The Uncle Fester's document on the USB stick founds the possession of the document charge and I don’t accept your account of that either.
18 You were a most unsatisfactory and unconvincing witness.
19 The maximum penalties are correctly set out in the agreed document.
20 You are still a young man and have no prior criminal history. There was the subsequently dealt with matter for earlier drug offending of which I will have more to say shortly. I was informed of that matter by your counsel.
In Mitigation
21
Your counsel, Mr Papas made submissions on the plea which was conducted on Monday of this week. He spoke of your massive fall from grace. He placed before me a report from Dr Hancock, a CISP report from the CISP case manager Morgan Miller, as well as a report from a treating psychologist
Mr Barreiro. He also placed before me a copy of your updated LEAP history.
22 He took me to your personal and family background which included the trials and tribulations of your movement from Iran to this country via Indonesia, refugee camps and hazardous boat journeys.
23 He made submissions as to the objective seriousness of the offending and the relevant sentencing purposes at play.
24 In mitigation, he relied upon:
· Your age, background and the absence of any previous criminal history;
· The efforts you had made on the CISP program and in the counselling with Mr Barreiro;
· The increase in your custodial burden owing to your personal circumstances as spoken of in the expert report:
· The fact that you had previously offered to plead guilty to the trafficking charge;
· He implicitly argued that you had decent or good prospects of rehabilitation.
25 Mr Papas conceded the inevitability of a prison sentence but argued that it would be open to combine such a disposition with a community corrections order.
Prosecution
26 Mr Buckland who appeared on behalf of the Director of Public Prosecutions made some brief submissions. He had also provided some written submissions marked as Exhibit A on the plea. The Director of Public Prosecution called for an immediate prison term.
Background
27
I will turn briefly to your background. Your personal background is set out in some detail in the report of Mr Barreiro. I accept the background that has been placed before me and there is little use in me restating it all now. You are 24 years of age born on 6 December 1994. You were one of two children.
You were born in Southern Iran. Your parents fled persecution in that country and the family arrived In Australia in 2001 when you were six or seven years of age. You spoke no English. The journey to Australia was a harsh one indeed as disclosed in that report with the miserable experiences of life in a refugee camp and two dangerous voyages. Undoubtedly those things were traumatic for all concerned. You were but a child and it must have been deeply disturbing for you. You then wound up at Woomera in the immigration and processing centre, also a traumatic setting for all of your family. It deeply scarred your mother in particular. Your father was left with some feelings of guilt for exposing his family to such trauma but no doubt he did so to advance your prospects and the prospects of the family and to avoid persecution. Eventually things looked up and you were processed. The family came out into the community, moving to Canberra and then to Melbourne.
28
Unlike so many who sit in the dock of this court, you have loving and supportive parents. You always have had. You are also obviously an intelligent man.
You overcame these obstacles that I have described and went on and achieved at school and then went on to Melbourne University where you did a commerce degree. You had a scholarship for the first in family to attend university.
I interpose your brother has also achieved academically and is currently at University.
29 For some reason, you lost your way. The report of Mr Barreiro comments on the treatment you had received in 2015 well before the commission date of the offences and then after the offence date in 2018, where he continued to treat you. I will come back to the report of Mr Barreiro shortly but plainly you were not travelling too well at either time. Undoubtedly drugs and drug use had assumed a significant role in your life. You were then living a very strange, wasteful and self-indulgent lifestyle as your counsel submitted.
30 You have been in custody now for a total of 27 days made up of 20 days spent on remand initially until being bailed in January 2018 and then seven days following my remand of you last week.
31
You have no prior criminal history but some relevant offences were committed in the month before the commission date of the matters I am dealing.
Those four drug offences were dealt with subsequently at Moorabbin Magistrates' Court.
Reports. (CISP, GP and Psychologist)
32
I have already spoken of the reports that were placed before me in this case.
I have read them all again since the plea was conducted and take them into account. The CISP report discloses the very decent efforts that you made in the currency of that bail, efforts which were taken into account in your favour when the charges were ultimately dealt with at Moorabbin Magistrates' Court in April 2018, as the LEAP extract endorsements make plain.
33 It is clear that you were not travelling too well back in 2015, 2017 and 2018. You had been referred by your GP Dr Hancock for treatment. Dr Hancock treated you for depression and anxiety originally in 2014 and then again in early 2018. He referred you off to Mr Barreiro who was a psychologist. Dr Hancock also oversaw your ongoing treatment and urine screens.
34 Mr Barreiro’s report, which is marked as Exhibit 3, is of real use to me unlike so many reports from consultant psychologists who generally have had but a fleeting connection to an accused. He was actually treating you and doing that prior to and after the commission date of the offences. It is a well-balanced and sensible report. It does not suffer from the style of advocacy so often seen in the reports from the usual stable of consultant forensic psychologists whose materials are placed before this court. He came into the picture owing to your GP treating you for depression and anxiety as well as grief flowing from the death of a friend by suicide. He saw you on six occasions from February to May 2015 and again on 10 occasions in 2018 ending in August of that year. So he is not making judgments based on a single attendance as so often is the position. He treated you. You were at that stage expressing concerns and regret about your choices and actions but of course it is not relied upon as demonstrating remorse for the crimes.
35
You have pleaded not guilty to the trafficking. Still it is clear that you were worried about the impact of your behaviour and life choices upon your parents. You had a complex diagnostic profile as far as he was concerned likely derived from a long period of exposure to traumatic events. He diagnosed you as suffering from an unspecified trauma and stressor related disorder.
Your symptoms did not meet the full criteria for Post-Traumatic Stress Disorder but probably would have if you had been seen for instance in Indonesia or at Woomera as a child. Again unlike many of the consultants that the court sees, Mr Barreiro does not hazard a guess. That is to his credit actually.
36
There were more recent disturbing events in your life including the breakdown of a relationship with a girlfriend and the suicide of a childhood friend.
He comments on the impact upon you of the death of another friend. You then worked long hours setting up the family restaurant in Camberwell. I was told that you were gambling and that was a setting where drug use was rife.
37 No one is suggesting that you did not know right from wrong. Clearly you did. Mr Papas was not suggesting that there is any direct link between any of the matters spoken of in the report and the choice to commit these crimes. There is no direct link. What you were not well equipped to do was to manage what had been happening in your life, hence the avoidant behaviour in gambling and drug use. You have developed significant deficits in self-regulation. You have not expressed any self-pity in discussions with the expert. You are keenly awake to the impacts of your choices upon your parents. Undoubtedly you regret what you have put them through. It seems to me reading the various materials, you made some clear gains in the course of counselling. That is clear from the report of Mr Barreiro and from the CISP report as well as the report of Dr Hancock.
38 Now this material is not relied upon as enlivening any of the principles from the case of Verdins v R. Rather it comments on your treatment needs, your strengths and weaknesses, what you have done to date and the matters in your personal make up. It is also relevant to your prospects of rehabilitation.
39 I am in fact prepared to find that given your personal background, and I have to have regard to your personal background because after all, I am sentencing you, that your custodial burden is increased. That is not by reason of the fifth or sixth limbs of Verdins being engaged. They are not. Your counsel, Mr Papas was explicit in disavowing any such argument. Rather, you have had disturbing experiences as a child in a custodial or quasi-custodial setting and it seems likely that they will re-emerge now as you are once again confined. That had occurred in the short space of time you had been remanded in late 2017 and may well play out again now, that much is plain from the expert report. So I take that into account in your favour.
40 I also recognise that you know how deeply your conduct has affected your family. You will be absent from them. You will have a sense that this will make their lives more difficult. No doubt it will. Your mother is not in good health. The business being conducted by the family is being sold. You will not be in a position to provide any assistance to your parents and that will play on your mind. I take that into account as also affecting your custodial burden. That is not a large matter at all.
Rehabilitation
41
As to your prospects of rehabilitation, I’m not sure Mr Papas used any particular adjective but he plainly was suggesting they were quite good. As serious as the offending was, you were, he said, still quite a young man. An intelligent one with family support and with very decent efforts at treatment in the interim period. You had been drug free and crime free for a significant period now.
All that is so. I must say I was to an extent disturbed by your stating earlier this week that your occupation was a professional gambler. That is still what you profess to be de despite all that has occurred in your life over the last few years. You are still seemingly intent upon taking a shortcut in your life. I do not really know why.
42
Your offending was no doubt driven by the desire to make some significant financial gain and to take a short cut. Just bowing to temptation as so many seem to in this domain. I am satisfied of that beyond reasonable doubt.
You told the jury you could not see any point working nine to five in light of your success as a gambler. I certainly accept that you fell into that position of not wanting to work nine to five. That is still your mindset and that is something of a worry actually.
43 You chose to commit this serious crime, I am speaking of the trafficking now, and there are really are no extenuating circumstances. There is no reduction in your culpability at all. You will have significant time in custody to reflect on your poor choices and this will surely serve to deter you to a degree. You are still a young man. I have by the way taken into account those principles dealing with the sentencing of young offenders from the cases such as Mills and Azzopardi. Those principles have to be sensibly adapted to one of your age committing a crime as serious as the trafficking. Still those principles have a role to play here. Rehabilitation is, in my mind, still an important consideration.
44 This offending occurred whilst you were on bail for other drug offences and that is a matter of aggravation. You have no prior history and nothing outstanding other than the remitted charge. You had the treatment spoken of in the CISP program report, and in Mr Barreiro’s and Dr Hancock’s reports. You ran a trial in relation to the trafficking matter. That despite having earlier offered to plead guilty to it.
45 Ultimately I am prepared to find that you have quite good prospects of rehabilitation.
Offer to plead guilty
46 You offered to plead guilty to the trafficking charge as well as the commit indictable offence on bail charge subject to the other charges not proceeding. That was in March 2018, before the committal hearing. The offer was rejected. The proceeds of crime charge really was the stumbling block as I perceive it. You did not by the way offer to plead to the possess document charge, the s.71E offence. Ultimately of course you pleaded guilty to that charge upon arraignment.
47 I don’t know what to make of your offer to plead guilty to the trafficking. True it is you were acquitted on the proceeds of crime charge and had your offer been accepted and had there been no desire to proceed on the s.71E charge, there would have been no need for a trial at all. So I cannot just ignore the fact that you offered to plead guilty. But what weight do I give to it, if any? The trafficking charge was on the indictment. It did not lie on the indictment as some alternative charge for instance like a recklessly cause serious injury below an intentionally causing serious injury charge where understandably upon rejection of a plea offer to such a lesser alternative, the offer may not be maintained before the jury.
48
Here the trafficking was a charge you were prepared to plead guilty to in March 2018. The prosecution rejected the offer. There was no impediment to you pleading to it either before the jury or in their absence and having a trial purely on the proceeds of crime charge. No one compelled you to run a committal or to plead not guilty upon arraignment earlier this month. What you were doing was chancing your arm. In fact attempts were made to exclude the evidence of the search altogether. That application prior to empanelment failed. The trial then got under way. You got into the witness box and gave a thoroughly
far-fetched account in relation to the drugs, the phone, the Blackberry and the reasons behind the possession. Your account of the possession of the blackberry for instance was just ridiculous. You said it was not yours and that you had no PIN number. Yet it was a communications device resting in your pocket with your other communication device, your phone, as well as an amount of cash. Your account of being given the device, the Blackberry, by your dealer who was heading overseas made no sense at all.
49
Your account as to possessing the drugs for personal use was of course rejected by the jury. That was hardly surprising. What then do I take from your earlier plea offer in light of the way this case has panned out before the jury?
I cannot look at your past offer as demonstrating any current remorse at all or acceptance of responsibility given the more recent events at trial and pre-trial. You have no remorse at all and have denied any responsibility in relation to trafficking. Your account to the jury stands in stark contrast to the fact of your being prepared to admit your guilt in March 2018. Your earlier offer to plead is of very little value here.
The Offences
50
As to the offences themselves, your counsel conceded that the trafficking was serious offending. Mr Papas was of course right to make that concession.
Yes you were young but you were not some foolish teenager. You were 23 years of age at the time. You were an intelligent man who had completed a commerce degree at a prestigious university. You threw it all away committing what you must have known to be a very serious crime indeed.
51
I have to consider a number of purposes of sentencing and they are not limited only to considering your prospects of rehabilitation. I do though pay regard to your prospects of rehabilitation. They are actually quite good, as I have said.
I can’t just ignore that finding. It to a degree informs the weight to give to specific deterrence and community protection.
52 I am required to punish you and to do that justly and proportionately. That is an important sentencing purpose here for the trafficking charge.
53 I must also denounce your conduct. Again that is plainly an important matter.
54 I must pay due weight to deterrence. There is the need for this court to seek to deter not only you, but also others from offending in the future. Those purposes often enough loom very large in a setting where the motivation for offending was monetary gain as it was here.
55 As to deterring you, I must give that principle of specific deterrence some weight in my sentencing task given the serious nature of the crime and your underlying motivation. You have not taken any responsibility for your offending. You must be deterred but you have no relevant history, you are still young enough and I have reached a quite positive finding as to your future prospects. Accordingly it seems to me that there can be at least some moderation of this purpose. It still must be given some weight.
56 I must obviously also give some weight to community protection. Again there can be some moderation given my relatively favourable findings as to your future prospects.
57 General deterrence is however undoubtedly a prominent sentencing purpose here. When I speak of general deterrence I am speaking of the need to deter others from doing as you did.
58
Illegal drugs have had a devastating impact upon our community. They cause untold misery to the many who fall under their grip. Not just misery to them but also to the families of those who use them. They destroy families and lives. They tear at the very fabric of our society. So many crimes that come before the courts have some link to drugs or drug use. Those who make the decision to traffick in drugs as you did really should expect little by way of leniency.
People who take that step are almost always taking a calculated risk as you undoubtedly were. You were a gambler in that sense, weighing up as you must have, the potential rewards as against the risks. You concluded that the risk was worth taking on and the only thing driving that was greed. You like so many others before you and no doubt so many more yet to come hope that the rewards on offer would justify that risk. People who traffick in drugs hope not to be caught. You hoped not to be caught and even when you were, you then hoped not to be convicted.
59 The courts must convey the message through the sentences imposed that the risk is huge and should not be taken on; that condign punishment awaits those who choose to engage in this evil industry. We, as judges in these courts, must strive to deter future likeminded offenders from committing these serious offences. The message must be crystal clear. Do not succumb to the temptation. Do not take the risk. The potential benefits may look attractive but they are well and truly nullified or neutralised by the ramifications of being apprehended, charged, convicted and sentenced to sizable terms of imprisonment.
60 The seriousness with which Parliament regards drug trafficking can be gleaned from the large maximum penalties in play in this area. I must take into account the maximum penalty.
61 I must pay regard to current sentencing practices though it is not a single controlling factor.
62 I have looked at the relevant portions of the Judicial College of Victoria sentencing manual, 33.13.4.1 & 3. Also the Sentencing Advisory Council snapshot for trafficking snapshot number 218 of August 2018 as well as the more up to date SacStat data. That more up to date data discloses that the most common sentence is between two and three years with a healthy band of sentences falling in the range of three or four years as well as a healthy band falling in the range of one to two years.
63 I am sentencing you now for your crimes and that is not a mathematical or statistical task. Statistics have many and inherent limitations. They tell me nothing at all about the offenders or the crimes covered by the data. Nothing is disclosed as to the amount of drug or the personal background of the offender or his or her motivation. They don’t even disclose if a person pleaded guilty or ran a trial. A very large proportion of the cases covered by the data would necessarily have arisen from guilty pleas. You ran a trial in relation to the trafficking charge which was your right but it follows that you have none of the sizeable benefits that accrue to a person who pleads guilty and who is judged to be remorseful. I can detect no remorse in relation to your offending.
64 I have mentioned looking at the Judicial College summaries and overviews of sentences. I have done that but other sentences imposed by other judges upon other offenders for other crimes do not operate as some form of precedent for me to follow or not. Again though, the lion’s share of those sentences followed on from a guilty plea.
65 What I have to do is exercise my sentencing discretion as a judge. That is, I have to pass appropriate sentences upon you for your crimes.
Offence gravity and role
66 I have to make a judgement as to the nature and the gravity of your offending. The weight of the drug is a fixed matter. The quantity of drugs must not be allowed to swamp other considerations but plainly it is always an important matter. The fact is you had over 80 times the trafficable quantity and over half the commercial quantity whether looking at pure weight or mixed weight in the relevant schedule. In the scheme of simpliciter trafficking charges, this was not a small quantity at all. Trafficking can be committed in relation to minute quantities of drugs. This was a sizeable quantity of high purity cocaine that plainly was worth a lot of money. I am not to concern myself with the harmfulness of given drugs. That is because it is a quantitative-based regime. Duration is what it is; on that day, on the 26 December 2017, you were trafficking this drug, as you were on that day in possession for sale. It is not mitigatory that you are in possession for sale on the day of arrest. The day of arrest has obviously interrupted your plans in relation to the drug. You stand to be sentenced for the trafficking on that date. That is very often the case when an arrest is made and a drug is seized. Sometimes there is a between dates allegation. Sometimes there is other information as to the duration of the trafficking. There isn’t here and I put aside as I must any suggestion of earlier trafficking. I stress you were acquitted on the proceeds of crime charge.
67 Financial gain undoubtedly was the driving force here. It almost always is. Sometimes though there are dire financial circumstances which lead in to the decision to offend. Though not excusing such conduct they can provide at least a context. It may sometimes reduce an offender’s moral culpability. Sometimes there is some form of pressure or duress falling short of the defence of duress which leads into the offending. Sometimes there might be, for instance, a pliable teenager being manipulated by his elders. There is nothing like that here. In your case it was pure greed, not need. I am satisfied of that beyond reasonable doubt. There was no financial need at all. The cryptocurrency trade evidence and the possession of over $100,000 makes that as plain as day.
68 A court always endeavours to understand the role of an accused but often enough the court is simply not able to identify the precise role. That is very common in drug prosecutions. Here there is no reason for me to think anything other than these were your drugs. I am satisfied of that beyond reasonable doubt. You were not some lowly functionary or bit player. I am satisfied of that beyond reasonable doubt.
69 On the day in question you and you alone possessed these drugs for sale. There is no evidence before me disclosing the involvement of any other person at all. I am prepared to accept that you used cocaine and that you may have used a very small portion of these drugs yourself but the fact remains you had 261 grams in that backpack. The jury rejected your account of why you had such a large quantity. Your obtaining of such a large quantity speaks of your intent and it really had nothing much to do with your own use.
70 There is certainly no reduction in your culpability here. You knew exactly what you were doing and your will was not broken down by any threat or the existence of some financial disaster in your life. You were making a quite deliberate choice. It was a terrible one. But that is what it was. It was a choice, one that you made and one that now you are paying for with the loss of your liberty.
71
As to the Uncle Fester's document that founds Charge 4 to which you pleaded guilty, it is the least of your problems and in that case you pleaded guilty which I do take into account in your favour. No trial was required for that matter.
You admitted your legal responsibility and must receive a lesser sentence owing to the fact of your guilty plea. It was a late plea and in the circumstances, I am not satisfied that you are actually truly remorseful at all. I have your account of why you accessed it which I do not accept on the balance of probabilities.
Still you get the appropriate discount for your plea. That is not affected by whether I find remorse or not. The s.71E charge of possessing that document containing instructions for the trafficking in a drug of dependence pales into insignificance when measured against the gravity of the trafficking offence. Here there is a single document. No chemicals or precursors or laboratory set up or anything of that description. So I don’t believe it is a particularly serious example of a s.71E offence.
72
I also have your guilty plea to the commit indictable offence on bail charge.
I take into account your guilty plea in mitigation of sentence. Again that charge is the least of your problems.
73 I take into account all of the submissions made by your counsel and by the prosecutor. I also take into account all of the written material tendered on the plea.
74 Prison is always a disposition of last resort. Mr Papas was conceding the inevitability of a prison sentence but argued that it would be open to structure a sentence such that your release could be onto a suitably conditioned community corrections order.
75 There are some crimes where the purposes of sentencing cannot be given adequate weight by the use of a community corrections order even one in combination with a prison term.
76 I have to pass appropriate sentences.
77
Confining a person is always a matter of last resort. Section 5(4C) of the Sentencing Act, to which I was taken, prohibits the imposition of a sentence of confinement unless the court concludes that the purposes of sentence cannot be achieved by a suitably conditioned community corrections order.
Plainly there must be confinement here. That much is conceded by Mr Papas but he argues that I have a year at my disposal
78 If a suitably conditioned community corrections order, in combination with a term of imprisonment could achieve all the purposes of sentencing in this case, I would proceed in such a way. My provisional view earlier in the week was that a combination disposition was not open here. I have reviewed all of the materials in the days since the plea and that is still my view.
79 Such an outcome is simply not open here as such a sentence would not in my view achieve the purposes of sentencing including the need to punish, to denounce and to deter you and others.
80It is not open to me to structure sentences such that a community corrections order is available. The trafficking charge to which you pleaded not guilty is just too serious.
81I will select individual sentences, make orders as to the extent of cumulation or concurrency, reach a total effective sentence in this way and then fix a non-parole period.
82 As to the non-parole period, I have to proceed on the footing that you will serve every day of the head sentence that I will soon pronounce. I am not able to take into account the possibility of release on parole, even though of course I am required by law in this case to fix a non-parole period. The Adult Parole Board will make that decision as to whether you can be released. It has nothing to do with me. It will be between you and them.
Totality
83 I take into account the principle of totality of sentence.
84 I must consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. Your overall criminality here was high enough. I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon you.
85 I believe that there can be a measure of concurrency in this case given the timing of the offending. It all occurred on that single day.
Ancillary orders
86 I will deal with the ancillary orders now.
Disposal
87 Application is made firstly for a disposal order in relation to the various items set out in the schedule to that application, pursuant to s.78(1) of the Confiscation Act. There is no opposition to the making of the order. I am satisfied that the pre-conditions for the making of the order are satisfied.
88 I order pursuant to those provisions the forfeiture to the State of the property referred to in the schedule and direct that it be held and dealt with in the manner contemplated by the order which I have now signed.
Forfeiture
89 There is a forfeiture order that is sought pursuant to s.33 of the Confiscations Act in relation to the Blackberry and the iPhone. Again, there is no opposition to the making of that order. Upon convicting you in relation to the trafficking offence, I order pursuant to s.33 of the Confiscations Act that the property be forfeited to the Minister.
464ZF
90 Finally, there is an application for a forensic procedure, that is for the taking of a scraping from your mouth pursuant to the provisions of s.464ZF(2) of the Crimes Act. Again, there is no opposition to the making of this order.
91 I order pursuant to those provisions that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with Subdivision 30A of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.
92 I am satisfied that the making of the order is justified owing to the seriousness of the offending, the fact that it is not opposed and that I judge it to be in the public interest.
93 Now, what I am authorising is the least invasive process, that is the scraping from your mouth. I have not authorised the taking of a blood sample. I always authorise the least invasive process. But I have to tell you that the people who will come to take the sample can use reasonable force to do so. They should not require any force. We are talking about a swab being run around the inside of your mouth. In the event that there was difficulty doing that, no doubt they would be back before me making application for a blood sample which to this point I have not authorised. But I have signed that order as well.
Sentence
94 Mr Zarghami, if you would stand up please.
95 On Charge 2, that is the charge of trafficking in a drug of dependence, namely cocaine, I convict and sentence you to three and a half years' imprisonment. That will be the base sentence.
96 On Charge 4, possession of the document, you are convicted and sentenced to two months' imprisonment.
Summary offence
97 On the related summary offence of committing an indictable offence on bail, I convict and sentence you to seven days' imprisonment.
Cumulation
98 The offending all occurred on the single day. I direct that one month of the sentence imposed on Charge 4 is to be served cumulatively upon the base sentence. The other prison term will be served concurrently upon the base and part concurrent sentence. I have had regard to the offending on bail as an aggravating feature of the trafficking and so do not regard it as appropriate to cumulate any portion of that sentence.
Total Effective Sentence
99 So what that produces is a total effective sentence of 43 months or three years and seven months' imprisonment.
Non-parole period
100 I fix a period of or 27 months or two years and three months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
101 You have already served 27 days by way of pre-sentence detention and that declaration is to be entered into the records of the court.
Section 6AAA
102
I have taken into account your guilty plea in relation to Charge 4 and the summary offence. If you had pleaded not guilty and been found guilty of the possession of document charge by a jury, I would have sentenced you to four months' imprisonment. I would have cumulated two months of that sentence.
I would also have imposed a longer sentence on the commit indictable offence on bail charge had there been a contested hearing on that charge. I would have sentenced you to one months’ imprisonment and cumulated two weeks of that sentence as well. I would have then fixed a longer non-parole period in those circumstances of two and a half years.
103 Are there any other matters I need to deal with from the prosecution perspective?
104 MS GIANNOPOULOS: Your Honour, there is just the summary charge which is still remaining to be remitted.
105 HIS HONOUR: Right, I have remitted that.
106 MS GIANNOPOULOS: Do we have a date for remission?
107
HIS HONOUR: We had a date and I think I signed an order on the last date.
It is 16 October for a 9.30 am mention.
108 MS GIANNOPOULOS: Thank you, Your Honour.
109 HIS HONOUR: Yes, all right. Any other matters?
110 VOICE (from the body of the court): Your Honour.
111 HIS HONOUR: Mr Tsogas, can you just tell me are there any custody management issues you want me to flag for the authorities or not?
112 MR TSOGAS: No, Your Honour.
113 HIS HONOUR: Yes, all right. You will go down to see your client downstairs?
114 MR TSOGAS: I will, Your Honour.
115 HIS HONOUR: Yes, all right. Thanks very much for that. All right, Mr Zarghami can be removed now.
116 MR TSOGAS: If the court pleases.
117 HIS HONOUR: Thank you.
118 MS GIANNOPOULOS: As Your Honour pleases.
(Prisoner removed.)
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