DPP v Hassan
[2015] VCC 1383
•25 September 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01665
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AHMET HASSAN |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 22 September 2015 | |
DATE OF SENTENCE: | 25 September 2015 | |
CASE MAY BE CITED AS: | DPP v Hassan | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1383 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – sentence following pleas of guilty to trafficking a commercial quantity of 1,4-butanediol (14.8kg) and a traffickable quantity of methylamphetamine (44g) and to possession of an unregistered handgun – TES 4 years’ imprisonment with minimum of 2 years and 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Cordy | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr J Kelly | Valos Black Solicitors |
HIS HONOUR:
1 Ahmet Hassan, you have pleaded guilty to trafficking 1,4-butanediol in a commercial quantity, for which the maximum penalty is 25 years' imprisonment (charge 1);[1] to trafficking methylamphetamine, for which the maximum is 15 years' imprisonment (charge 2);[2] and to possessing an unregistered hand gun, the maximum being seven years' imprisonment (charge 3).[3]
[1]Contrary to s.71AA of the Drugs Poisons and Controlled Substances Act (DPCS Act) 1981.
[2]Contrary to s.71AC of the DPCS Act.
[3]Contrary to s.7B of the Firearms Act 1996.
2 I must now sentence you on behalf of the community.
Circumstances of offending
3 The circumstances of your offending are set out in an agreed prosecution opening which was read out at the plea hearing. A summary will suffice.
4 On 19 November 2013, you were 24 and lived at Keysborough with your parents and other family members. On that day police executed a search warrant at nearby 198 Bloomfield Road, Keysborough, where your brother-in-law, Ali Duyar, was living with your sister and their three young children. You were present in the driveway with Duyar hooking up a trailer to his vehicle. Police found you in possession of a mobile phone and $350 cash. They confiscated a bum bag which was slung over your shoulder. It contained an unregistered, loaded and operable .32 calibre Browning 1910 semi-automatic pistol, with an attached magazine containing seven cartridges (charge 3). You were arrested. In a field interview with police you said that you knew it was a .32 calibre with seven rounds. You claimed you had the weapon for your own protection, but then added, “Well, it’s not really protection, it’s just something if you get big trouble …” You explained that you needed to be “a bit cautious at the moment” as you had noted cars following you and “stuff like that” when you were walking. You said you had had the weapon for the past six months and that you were carrying it on this day because you had walked to Duyar’s premises.
5 Police then searched the garage at the premises. You explained to police that your last job had been putting up racking and that you and Duyar were starting up a business of installing a bi-fold stacking door system, which components were found in the garage. You said you were a frequent visitor to the premises.
6 In the garage, police discovered an Esky and two plastic buckets containing a total of 14.8kg of liquid 1,4‑butanediol in various bottles. One of the buckets was being cooled by ice when discovered and the bottles in the Esky were in water, consistent with melted ice. No evidence of purity was provided. The substance 1,4‑butanediol is an illicit drug if possessed for other than a lawful industrial purpose and not for human consumption. It is a relatively new drug of dependence, introduced into the Drugs Poisons and Controlled Substances Act 1981 with operative effect from December 2012.[4] A commercial quantity of the drug in a mixture is 2 kg.[5] You admitted you possessed the drug for sale, hence you were trafficking a little over 7 times the commercial quantity of the drug (charge 1). You told the police that this drug was yours, and that you had purchased it as 1,4-butanediol, believing it had similar effects to another drug, GHB. You claimed you did not know how much you could sell it for, which was a wholly improbable response given that you possessed the drug for sale.
[4]The drug, also known as 1,4-BD, was introduced in the Drugs, Poisons and Controlled Substances Amendment Act 2012 (No.57 of 2012) which was assented to on 16 October 2012, with the relevant provision coming into operation on 13/12/2012, see; Government Gazette No.S429, 11 December 2012.
[5]Column 2A, Part 3 of Schedule 11 of the DPCS Act. A trafficable quantity is 50 grams of the drug in a mixture and a “small quantity” is 10 grams.
7 An uncontested statement from a drug expert indicated that 1,4-butanediol is an industrial solvent used for a variety of legitimate purposes including the manufacture of plastics, as a cleaning agent or adhesive and it has other chemical applications.[6] The drug is generally found as a colourless, viscous and almost odourless liquid. According to Australian Government Department of Health documentation,[7] if used as an illicit drug of dependence, it is taken either orally (apparently in liquid or capsule form) or by intravenous administration and is “rapidly and efficiently metabolised in the liver to form GHB (gamma-hydroxybutyric acid)”. The substance is sold on the illicit market as either 1,4-butanediol or as GHB. Prosecuting counsel indicated, and you did not dispute, that GHB, which is also known as “liquid ecstasy”, is an illicit drug found in the “dance scene” in Victoria.[8]
[6]See statement of Det. Leading S/C Tony Gumley dated 12 June 2015 (ex C).
[7]Australian Government Department of Health Fact Sheet CAS no.110-63-4.
[8]GHB, referred to as 4-hydroxybutanoic acid, is listed as a drug of dependence in Part 1 of Schedule 11 of the DPCS Act. A commercial quantity is 2kgs pure (column 2) and a trafficable quantity is 50g pure (column 3); see also: s.71 DPCS Act for definitions.
8
On the legitimate market, 1,4-butanediol, is generally sold in quantities ranging from 50 ml to very large commercial quantities. On the internet, retail prices range from $29 for 50 ml to $420 for 4,000 ml. On the illicit drug market, the drug is sold in a variety of quantities and, as with other illicit drugs, buying in a large quantity generally means a lower unit price.
It costs $5 to $10 to purchase 1-1.5ml of the drug (if sold as GHB), whereas 1 litre sells for $1,000. For practical purposes, I litre equals 1 kg. Accordingly, the wholesale value of 14.8kg of 1,4-butanediol, purchased as a single deal, is $14,800. The same amount equates to 14,800 street deals of 1ml each which, at $5 to $10 per deal, would cost $39,200 to $49,000.
9 Police also found in the garage a box containing three vacuum-sealed bags and two clip-seal plastic bags which, in total, contained 44.1 grams of methylamphetamine at an approximate purity of 80 per cent, or 35.2 grams pure. A traffickable quantity of methylamphetamine in a mixture is 3 grams, whereas a commercial quantity in a mixture is 500 grams or 100 grams pure.[9] You admitted this drug was yours then said it was “ours”, presumably referring to Duyar. You said that you, not Duyar, were “trafficking”, that is, “selling” the drug. You admitted that a ledger found by police was in your hand writing and that it recorded previous sales of this drug. Your fingerprint was later found by police on this document.[10] You are not to be punished for this selling activity, but you agree this was admissible evidence that you were possessing the discovered methylamphetamine for sale. Hence, you were possessing for sale a little over 14 times the traffickable quantity of the drug (charge 2).
[9]See Columns 3, 2A and 2 of Part 3 of Schedule 11, DPCS Act. A small quantity is .75 grams.
[10]Another person’s fingerprint was also found on the ledger.
10 Of course, methylamphetamine is a well-known, insidious drug substance, otherwise known at such a high level of purity as “ice”. The expert evaluation was that on the illicit market .1g of methylamphetamine at greater than 70% purity is sold for $80 to $100, whereas 28g (1 ounce) sells for $8,000 to $10,000. The value of the seized drug, if sold in a single deal of 44g at the price for 28g is $12,560 to $15,700. At the other end of the scale, this amount of the drug would convert to 440 street deals, which if sold in .1g lots at $80 to $100 per gram, would be valued at $35,200 to $44,000.
11 Hence, the total value of the two lots of drugs was $27,360 to $30,500, if sold in single lots, or $74,400 to $93,000, if sold as 15,240 street deals. The parties treated these figures as applicable at the relevant time of offending.
12 Police also found a small amount of methylamphetamine in Duyar’s car and a further five handguns and ammunition hidden in the garage. You are not to be punished concerning these matters but they are relevant to subsequent proceedings concerning you.
Police and court process
13 At the completion of the raid you were taken to a police station. You admitted that the field interview had taken place but, otherwise, exercised your right to make no further comment in a record of interview. You were charged with the present three matters and also for possessing the drugs in the car and the additional five weapons. You have been held in custody since that time, having elected not to make any application for bail. There is now 675 days pre-sentence detention up to, but not including, today.
14 On 17 September 2014, you conducted a contested committal essentially concerning charge 1. However, you pleaded guilty to possessing the 1,4-butanediol; to trafficking methylamphetamine; and to possessing the handgun in your bum-bag and the other five weapons found in the garage. Again, no bail application as made by you. You and Duyar were sent for trial, however, on 6 June 2015, Duyar was shot and killed in an incident which was said to be unrelated to these charges. Two persons have been charged with his murder.
15 On 13 July 2015, you filed a defence response in which you denied possessing any drugs, you sought leave to change your pleas of guilty to the weapons charges, you applied for severance at trial of the weapons charges and challenged the admissibility of your field interview. Your trial was due to commence last Monday, but you negotiated a plea settlement with the prosecution and pleaded to the current three charges.
Background and personal circumstances
16 I will turn now to your background and personal circumstances. You are now 26. Your family are of Turkish origin. You were born in Dandenong, the youngest of five children. You were supported in court by your parents, two sisters (one was married to Duyar) and a brother.
17 Your parents and family have been hardworking and law-abiding. None have been in trouble with police. You have lived at home with your parents all your life and there is a strong family interaction and socialisation. You left secondary school during Year 9 and immediately took up an apprenticeship as a bricklayer. Unfortunately, after 12 months you suffered an injury, and although you returned to the bricklayer trade, you did not complete your apprenticeship. You have always been in full time work, mainly working as a labourer. Your last job was fitting doors and you were about to start the proposed business with Duyar.
18 Unfortunately, in November 2011 you were convicted of dishonesty offences and placed on a community-based order for 12 months. That order required you to, among other matters, be under supervision, to undergo assessment and treatment for alcohol and drug addiction and to engage in programs to reduce re-offending and complete a lifestyle program. However you failed to comply with some of the reporting requirements and in September 2012, you were convicted and fined for breaching the order. You have no other criminal record.
19
Evidence was given on the plea by your mother, your sister and brother and
Mr Duyar’s sister. Speaking compendiously, they gave powerful evidence of your strong family bonds and loyalty and of your subscription to the fundamental principles of hard work, loyalty, respect, integrity and law-abiding conduct, all of which have been instilled into the family by your parents. You were described as a good, young man who has worked very hard and productively after leaving school. They said you feel a deep sense of shame and embarrassment for the effect which your offending has had upon your family. You have demonstrated remorse for and insight into your offending. Full-time work is available for you as a cabinetmaker with your brother-in-law’s company once you are released from prison. The witnesses explained that you had a very close relationship with Duyar, who was 10 years older than you. You looked up to him like a brother and loved him. It was said that he led and you always “followed” him. You were devastated by his death, which has had a profound effect upon your thinking about the danger of drugs and weapons. I accept all of that evidence. None of your family suggested you were addicted to drugs at the time of offending.
20 Whilst in custody at MRC you have been working successfully as a billet organising sporting activity. I was told you were a promising young soccer player. Your family has frequently visited and supported you, but from 1 July this year, as a result of the prison riots, you have been in lockdown for 23 hours per day and your family visits have effectively ceased. Counsel did not rely on the present onerous circumstances to obtain a discount because, it was conceded, there would be sentence credits granted to uninvolved prisoners such as yourself. But your present onerous conditions are relevant because you have lost significant family support whilst in prison.
Mitigating circumstances
21 The mitigating circumstances are as follows. You are the product of a law-abiding supportive family environment and have generally subscribed (but for this and limited past offending) to the fundamental family principles which I have outlined. There is no suggestion that you were addicted to drugs at the time of offending. You commenced an apprenticeship which was cut short by injury. You have always been engaged in full-time and productive employment. You are a relatively young man and have a limited criminal history and no convictions connected to drugs or weapons.
22 Although your pleas were entered at a very late time, at the door of the Court, they merit a substantial discount in penalty by reason of their utilitarian benefit in that significant community time, cost and expense has been avoided. You have served the ends of justice for that reason. I am also satisfied that your pleas are associated with genuine remorse for and insight into the seriousness of your offending. I accept the submission that the fact that you initially pleaded guilty to possessing the five other weapons and the methylamphetamine in the car was a further indicia of your remorse; however, that attitude obviously changed when you withdrew those concessions in your defence response.
23 It is difficult for me to reach specific conclusions as to the role, if any, played by Duyar in your offences. I cannot ignore that you possessed the drugs at his premises. Obviously, he was complicit in you doing that. Nevertheless, you acknowledged that you were solely responsible for possessing both drugs for sale and, of course, you were in possession of the weapon. Hence, for these offences, I could not conclude you were his “follower”.
24 You did make significant admissions to police as to the trafficking offences, which was crucial evidence against you. Special credit should be given to an offender who confesses guilt in this way.
25 Whilst at MRC you have undergone six clean urine screens, which is confirmatory of the absence of any drug use whilst on remand.
26 In assessing the objective gravity of your offending, I also take into account in your favour that trafficking in 1,4-butanediol was unlikely to return the massive profit which can be gained from trafficking in other drugs like methylamphetamine, cocaine or heroin. That principle was acknowledged in Maxwell’s case.[11] However, I note that the expected reward for selling the drug in question in that case, GBL[12] - described as “small or non-existent”, or “a low financial return” - could not be attributed to the potential profit for trafficking 14,800 street deals which the amount of 1,4-butanediol you had would have produced.[13] Indeed, in Maxwell, the Court of Appeal recognised that a profit of approximately $48,000 was properly described as a “very significant financial gain and properly recognised as a key factor for the purposes of sentencing in drug importation cases”.[14] You had a potential maximum profit of $49,000, depending on how much you purchased the drug for, which is not revealed.
[11]DPP v Maxwell [2013] VSCA 50, (Maxwell), [21], per the Court (Maxwell P, Weinberg and Priest JJA).
[12]GBL (gamma butyrolactone) is a border-controlled drug pursuant to the Criminal Code Act 1995 (Cth) s314.4(1) and a drug of dependence under the DPCS Act. 3 litres of GBL was imported for an internet cost of $6,600 to $9,000, with a street value of between $10,440 and $17,400. Apparently the GBL was going to be used to make GHB (see footnote 8 above) which was to be sold. 1 kg of pure GBL is a commercial quantity for the purposes of the Commonwealth regime and 2 kg of the drug in a mixture is a commercial quantity under state legislation (see Column 2A, Part 3 of Schedule 11, DPCS Act).
[13]See [8] above.
[14]The Court cited De La Rosa (2010) 79 NSWLR 1, 64-5 [267.4]; and Nguyen (2011) 31 VR 673, 683 [35].
27 You have now served about 1 year 10 months in custody, the last 3 months in very difficult and confined circumstances. This is your first time in prison and I accept that this experience has had a significant deterrent effect upon you and that you have developed positive insight and awareness into the hopelessness of dealing with illegal drugs and weapons. I am satisfied that in all the circumstances, including your continuing family support and your relatively young age, that you have good, perhaps very good, prospects for rehabilitation.
Other sentencing considerations
28 There are, of course, other important sentencing considerations. The first is that I must have a regard to the maximum penalties provided for your offending, particularly that of 25 years’ imprisonment for trafficking in a commercial quantity, which demonstrates the seriousness of that offence and community concern about it. Not surprisingly, you concede that your offending is serious.
29 Although the mitigating circumstances and your rehabilitation are important considerations, the principle of general deterrence is of great significance, as others who may be minded to act as you have need to understand that significant terms of imprisonment will be imposed for this type of serious offending. So, too, are the principles of just punishment and community protection important. Denunciation is equally important.
30 You were not a drug addict seeking to service your addictive habit, you were motivated by greed, acting with your eyes wide open. You fully intended to introduce drugs into the community, which is a social evil that has the capacity to threaten our fundamental way of life and bring great misery to many people. Whilst that did not happen, which of itself is a relevant factor, that was your intention and it was no act of yours that resulted in this not happening.[15]
[15]Zandi v The Queen [2015] VSCA 24, [18] per the Court (Priest and Beach JJA).
31 The two drug trafficking charges are put, and you are to be sentenced, on the basis that you possessed each drug for sale and that you were trafficking only on the day of your apprehension. There is no evidence you were involved in any act of sale or that you had any specific agreement to sell either of the drugs seized. However, I note that nothing was explained and no evidence was led on the plea hearing as to the source of the drugs, how much you paid for them or whether they were provided to you on credit or how you proposed to sell them, to whom and for what price. Indeed, there was no evidence before me of the expected profit you anticipated. Nor was any explanation provided as to where you got the weapon from or how much it cost you (if anything) or why it was unregistered. You did not seek to resolve any of these crucial matters at the hearing, indeed, you specifically declined to give evidence on the plea when I raised that prospect with your counsel.
32 It was submitted that in the absence of evidence to determine how the 1,4-butanediol was to be sold by you, it was not open to the Court to use the higher projected revenues for that drug based on the expert’s valuation statement, as a basis for determining the likely return to have been generated by trafficking in that drug. As it was put, satisfaction beyond reasonable doubt is required of any aggravating features (which is true) and if you are to be sentenced on these higher figures, the most conservative projections only should be used. I reject this submission, for acting on the range of valuation provided is not to reach a conclusion as to an aggravating feature but rather to have regard to a proper uncontested valuation of the drug and the potential profit available to you.
33 I acknowledge that you were entitled to say nothing more on the plea hearing, and to rely on the fact that there is no evidence of aggravating factors, which is the case here, but, as observed by Nettle JA in Dao v The Queen,[16] albeit a case involving much greater amounts of drugs than you had, if an offender makes that choice:
“….and there is insufficient evidence to sustain an inference on the balance of probabilities that the offender was at a low level of any relevant business hierarchy, or had limited knowledge of what he or she was involved in, or had no expectation of financial reward or was, for some other reason less culpable than would otherwise necessarily be implied by being found in possession of a vast quantity of illicit drugs and cash in the early hours of the morning in a public park, the judge must assume that there is nothing which can be said in mitigation about those factors.”
[16][2014] VSCA 93, [17], Redlich and Priest JJA agreed with Nettle JA.
34 I apply those observations to your case and conclude, there is nothing which can be said in mitigation about your possession for sale of both drugs in charges 1 and 2, other than the matters I have already commented upon.
35 It has been repeatedly acknowledged by the courts, that the quantity of a drug being trafficked is a very significant indication of the seriousness of an offence. As observed by Maxwell P, in Pham “Other things being equal, it [quantity] is the measure of seriousness.” [17] You had a little over 7 times the commercial quantity of 1,4-butanediol and a little over 14 times the traffickable quantity of methylamphetamine. These are significant figures beyond the relevant thresholds. For those reasons alone, such offending is serious.
[17]Pham v The Queen [2014] VSCA 204, [31].Accord: Le v The Queen [2015] VSCA 183, [40], per the Court (Redlich and Beach JJA), citing Dao v The Queen at [14]; and Maxwell, [20].
36 I must also consider current sentencing practice. The most recent figures for trafficking in a commercial quantity of drugs concern 144 persons sentenced for that offence between 2008/09 to 2012/13.[18] The terms of imprisonment imposed ranged from approximately four months to approximately seven years after adjustment for appeals, while the median length of imprisonment was three and a half years. I note that those figures precede the new sentencing regime resulting from the Court of Appeal’s guideline judgment in Boulton.[19] I have considered generally sentence figures for non- commercial drug trafficking. Of course, such statistics can only provide general assistance and ultimately, every case, including yours, must turn on its own facts and circumstances.
[18]Sentencing Advisory Council, Sentencing Snapshot No 162, August 2014, Trafficking in a Commercial Quantity of Drugs.
[19]Boulton v R [2014] VSCA 342.
37 Counsel referred me to a number of recent cases where offenders were sentenced for trafficking, 1,4-butanediol in the County Court.[20] Having considered those cases, I did not conclude that they stand as true comparators, so I do not propose to discuss them. Indeed, defence counsel conceded that the sentencing remarks of other judges of this Court are of limited assistance, as none of the cases appear closely analogous to the present, and only one appears to have been determined since the Boulton principles were enunciated and Maxwell’s case does not appear to have been discussed in any of them.
[20]Director of Public Prosecutions v Rheinberger, Judge Tinney, 21 July 2014; Director of Public Prosecutions v Hayes, Judge Pullen, 30 January 2015; and Director of Public Prosecutions v Dattoli, Judge Murphy, 21 August 2015.
38 Turning to the offence of possessing an unregistered weapon, there can be no doubt of the necessity for strict gun control in Australia, including that only fit and proper persons should possess, use and store weapons and ammunition. One of the obvious purposes for such control is to stop criminals obtaining access to weapons and ammunition and thereby to ensure public safety and peace.[21] This is one of the main purposes of the Firearms Act 1996.[22] Self-defence is not a justification for carrying an unregistered weapon. In any event, you admitted to having it to deal with “big trouble” as you put it, which throws up chilling scenarios.
[21]DPP v Fleiner [2010] VSCA 143, [29].
[22]Section 1(a).
39 The offence you committed was first created in 2003.[23] In introducing this and a number of other new firearms offences and significantly increased penalties, the Minister referred to community concern in the aftermath of several widely publicised shooting incidents. He continued:
“... The possession, carriage and use of unregistered firearms is a very serious matter because it flies in the face of firearms laws by subverting the licensing and registration system which is the cornerstone of the national agreement. Unregistered firearms, and particularly unregistered handguns, are the firearms of choice of firearms traffickers. It is because the trade and use of unregistered firearms is so serious that the Bill significantly increases the maximum penalties for possession, carriage and use of unregistered firearms in the Act.” [24]
[23]Section 8 of the Firearms (Trafficking and Handgun Control) Act 2003.
[24]Hansard, Legislative Assembly, Second Reading speech, 27 February 2003. This passage was cited by Williams AJA, with whom Callaway and Batt JJA agreed, in DPP v Faure [2005] VSCA 91, [7]–[8], see also: [24], a case involving a prohibited person possessing an unregistered pistol. See also: R v Smith [2006] VSCA 23, [10]. Of course, the offender was not a prohibited person
40 These observations emphasise the seriousness of charge 3, even though you are not to be sentenced as a prohibited person in possession of the weapon. Again, general deterrence is of paramount importance concerning this offence.
41 Your counsel submitted that, notwithstanding the seriousness of your offending, and the appropriateness of you being sentenced to an immediate term of imprisonment, you should be effectively sentenced to time served, about one year and ten months, or at least no more than one day short of two years and then released upon a Community Correction Order, in reliance upon the recent guideline judgment of the Court of Appeal in Boulton v The Queen.[25]
[25][2014] VSCA 342.
42 Emphasis was placed on the Court’s acknowledgment of the punitive elements and character of a CCO, which it describes as “a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way”.[26] The Court made clear that it may be appropriate to impose a CCO, with or without a term of imprisonment, for relatively serious offences, even when such cases would have previously attracted a medium term of imprisonment. Particularly, the Court made clear that this sentencing option offers a court something which no term of imprisonment can offer; namely, a sentence which demands that the offender take personal responsibility for self-management and self-control, including the pursuit of appropriate treatment and rehabilitation, which, of course, enables an offender to work in the community if appropriate and to maintain a continuity of personal and family relationships, whilst refraining from undesirable influences.[27] The Court also noted that the combination sentence option of combining a CCO with a sentence of imprisonment adds to the flexibility of the CCO regime.[28] Counsel particularly noted that the period of one day less than two years did not have to include PSD.[29]
[26][113].
[27][114].
[28][141].
[29]See s.44(1) Sentencing Act 1991.
43 Significantly, the Court in Boulton made clear that “the advent of the CCO calls for a re‑consideration of traditional conceptions of imprisonment as the only appropriate punishment for serious offences”, and it concluded that a CCO can serve all the purposes of punishment, “even in quite serious cases”.[30] Indeed, the Court said that “even in cases of objectively grave criminal conduct, the court may conclude that some or all of the punitive deterrent and denunciatory purposes of sentencing can be sufficiently achieved by a short term of imprisonment of up to two years if coupled with a CCO of lengthy duration, with conditions tailored to the offender’s circumstances and the causes of the offending, directed at rehabilitative purposes.”[31]
[30][5]–[6].
[31]Appendix 1, Clause 27.
44 The prosecution submitted that immediate custody was the only option but that the appropriateness of the defence submission as to sentence and release on a CCO was a matter for the Court. Certainly, the Crown emphasised the importance of general deterrence and denunciation, noting that specific deterrence was not of great moment. The Crown conceded that you had good prospects of rehabilitation. It said that because the possession of the weapon was connected with the trafficking offences, as was clearly the case, there ought to be some appropriate cumulation on the weapon charge, however, the possession of the weapon is not of itself an aggravating feature. I agree. It was submitted that there should be significant concurrency between charges 1 and 2 because both drugs were possessed at the same time for sale. Again, I agree.
45 Of course, a court must not impose a jail penalty other than as a last resort and in circumstances where no other disposition would meet the needs of the circumstances of the case. Having given the matter careful consideration, particularly in light of the Boulton principles, I do not agree that a sentence less than two years’ imprisonment is appropriate in all the circumstances of the case. The objective gravity of your offending is too serious for that approach.
46 Of course, I must pass sentences which are proportionate to your offending and I must avoid passing a crushing sentence upon you. The principle of totality should apply, particularly as to charges 1 and 2. I do agree there should be some cumulation of sentence on charge 3, because this was an additional offence committed in connection with the trafficking offending. It was not suggested to be otherwise. I consider that you should be appropriately supervised and supported whilst on parole following your release from prison.
47 On behalf of the community, I strongly denounce your offending conduct.
Sentence
48 Mr Hassan, please stand up. On each charge you are convicted. On charge 1, you are sentenced to three-and-a-half (3½) years’ imprisonment. On charge 2, you are sentenced to twelve (12) months’ imprisonment. On charge 3, you are sentenced to twelve (12) months’ imprisonment.
49 The sentence on charge 1 is the base sentence. Six (6) months of the sentence on charge 3 is to be served cumulatively upon the sentence on charge 1.
50 The total effective sentence is four (4) years’ imprisonment. I fix a period of two (2) years and nine (9) months’ imprisonment to be served before which you shall not be eligible for release upon parole.
51 I declare that the period of 675 days pre-sentence detention be reckoned as already served on that sentence, and that such declaration be entered in the records of the Court.
52 But for your pleas of guilty, I would have imposed a total effective sentence of five years’ imprisonment with a minimum of three-and-a-half years.
53 I will make the disposal and forfeiture orders sought by the prosecution, which are not opposed by you. Just sit down for the moment please. I hand to the prosecution those signed orders. I ask counsel, are there any mechanical issues arising from the sentence?
54 COUNSEL: No, your Honour.
55 HIS HONOUR: Mr Hassan, you need to go with the prison officers now. Thank you. Please remove the offender.
56 [Offender removed].
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