DPP v Osman
[2020] VCC 638
•19 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00709
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMAD OSMAN |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 & 15 February 2019 | |
DATE OF SENTENCE: | 19 May 2020 | |
CASE MAY BE CITED AS: | DPP v Osman | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 638 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Trafficking in a drug of dependence in not less than a large commercial quantity – Trafficking in a drug of dependence – Mid-level trafficking – Early pleas of guilty – Significant role in a highly sophisticated criminal enterprise – Motivated by personal financial gain – Very high moral culpability – Suffered from conflict occurred in Afghanistan – Migrated to Australia from Afghanistan – Suffered from symptoms of trauma – Problematic gambling habit – Highly problematic prospects of rehabilitation – No prior criminal history – Demonstrated true contrition and remorse – Very lengthy delay – Parity – Total effective sentence of 19 years’ imprisonment with a 13 years’ non-parole period
Legislation Cited: Sentencing Act 1991 s 3(1), s 5(4)
Cases Cited:Djordjic v The Queen [2018] VSCA 227 – DPP v Fatho and Ors [2019] VSCA 311 – DPP v Gregory (2017) 268 A Crim R 1 – DPP v Fernando (2017) 268 A Crim R 26 – DPP v KMD (2015) 254 A Crim R 244 – Adams v The Queen (2008) 234 CLR 143 – R v Muanchukingkan (1990) 52 A Crim R 354 – Arico v The Queen [2018] VSCA 135 – Nguyen v The Queen [2019] VSCA 184 – R v Le Cerf (1975) 13 SASR 237 – DPP (Cth) v De La Rosa (2010) 79 NSW LR 1 – See R v Olbrich (1999) 199 CLR 270 – Tran v The Queen (2014) 240 A Crim R 574 – R v Nguyen (2010) 205 A Crim R 106 – Tsang v Director of Public Prosecutions (Cth) (2011) 35 VR 240 – R v Verdins (2007) 16 VR 269 – Atholwood v The Queen (1999) 109 A Crim 465 – Cameron v The Queen (2002) 209 CLR 339 – Rodriguez v DPP (Cth) (2013) 40 VR 436 – Markovic v The Queen (2010) 30 VR 589 – DPP v Dalgliesh(a Pseudonym) (2017) 262 CLR 482 – Giretti v The Queen (1986) 24 A Crim R 112 – DPP v Harris (a Pseudonym) [2019] VCC 1546 – DPP v Margus [2020] VCC 342 – DPP v Wahab [2018] VCC 1892
Sentence: Total effective sentence of 19 years’ imprisonment with a 13 years’ non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Pillai | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr R van de Wiel QC | Valos Black & Associates |
HIS HONOUR:
1 Mohammad Osman, you have pleaded guilty to an indictment containing two charges of trafficking in a drug of dependence (Charges 1 and 2) and two charges of trafficking in a drug of dependence in not less than the large commercial quantity (Charges 3 & 4).
2 The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment and the maximum penalty for trafficking in a drug of dependence in not less than a large commercial quantity is life imprisonment.
The Facts
3 For the purposes of sentencing you, I accept in general terms the facts as set out in the amended summary of prosecution opening dated 13 February 2019.[1] There is a dispute regarding the precise nature of your role in committing these offences. I make findings on this issue later in these sentencing remarks. But so far as the factual matrix underpinning your offending is concerned, your senior counsel accepted I could act on the material contained in the amended summary of prosecution opening.
[1] Exhibit P1.
4 The Joint Organised Crime Task Force, consisting of members of Victoria Police, the Australian Federal Police, the Australian Crime Commission and Australian Customs and Border Protection Service, conducted an investigation into the syndicated trafficking of large commercial quantities of heroin, code-named ‘Operation Monsoon’.[2]
[2] The real name of the operation has been changed to protect the identity of one of the offenders whose personal safety may be at risk.
5 The charges arise out of your involvement in four sales of heroin by the syndicate to Victoria Police covert operatives in Campbellfield and Thomastown over a nearly seven-week period between 30 October 2014 and 15 December 2014 as follows:
Charge 1 – trafficking simpliciter, 499.5 grams heroin and mixed substance on 30 October 2014 at Campbellfield;
Charge 2 – trafficking simpliciter, 498.5 grams heroin and mixed substance on 19 November 2014 at Campbellfield;
Charge 3 – trafficking large commercial quantity, 1000.4 grams heroin and mixed substance on 9 December 2014 at Thomastown; and
Charge 4 – trafficking large commercial quantity, 1001.6 grams heroin and mixed substance on 15 December 2014 at Campbellfield.
6 Your heroin trafficking was conducted pursuant to an agreement, arrangement or understanding with several other offenders including: Rami Margus, who acted as a drug and cash courier; Baset Wahab, who operated a motor mechanics business called ‘Baset Autotech’ and who performed the role of storeman and packer for the syndicate;[3] Anthony Harris,[4] who was essentially the transport supervisor; Ahmed Al-Hamza, who was an ‘odd jobs man’; and, the prosecution alleges, Ali Aydin, who was the first point of contact with prospective purchasers and generally facilitated the drug deals with a number of police covert operatives. You had a pre-existing relationship with Wahab and Harris. Wahab called you ‘uncle’ and you referred to him as ‘Baset son’. Harris had a pre-existing relationship with Al-Hamza.
[3] Searches under warrant conducted on Wahab’s home and Baset Autotech on 17 December 2014 located nine vacuum-sealed bags containing a combined total of 9.016 kilograms at Wahab’s home and one vacuum-sealed bag containing 995.5 grams of heroin at Baset Autotech’s premises. Subsequent chemical analysis revealed all mixtures contained heroin at 60% purity. Moreover, this heroin was found to have a similar chemical profile and a ‘chemical link’ with the heroin the subject of the present transactions. Osman is not charged in relation to the possession for sale of any of this heroin.
[4] A pseudonym used to protect this person’s identity whose personal safety may be at risk.
7 Investigators obtained telecommunication interception warrants for multiple mobile telecommunication devices, including encrypted Blackberry devices. You were identified as using three mobile devices, two with fictitious subscriber details. You and Harris used encrypted covert telecommunication devices to communicate and you used codewords during telephone conversations to minimise the risk of detection. Investigators also utilised physical surveillance, surveillance devices and police covert operatives.
8 Your involvement in the transaction giving rise to Charge 1 appears to have commenced around 8.30 pm on 27 October 2014 when you exchanged a series of coded text messages with Aydin.[5] On 28 October 2014, Aydin met with a police covert operative code-named ‘Tony’ regarding a proposed sale of heroin to Tony. Later that evening, Aydin met with you at a BP service station to discuss the proposed transaction. Acting under your instructions, Aydin cancelled the proposed drug transaction which had been arranged to occur that night.
[5] So far as Aydin’s alleged involvement in these four transactions is concerned, what follows are allegations and not proved facts. (See Saleh Alfarsi (a pseudonym) v The Queen [2020] VSCA 119 [12]–[13] (Maxwell P, T Forrest and Weinberg JJA).
9 On 30 October 2014 between 3.24 pm and 4.52 pm, Aydin and Tony met, and Tony placed an order for heroin with Aydin. Five minutes after the conclusion of this meeting, Aydin sent a text message to you arranging to meet you in 30-minutes time. This meeting never took place; however, you and Aydin exchanged a series of coded text messages from 5.04 pm until 6.30 pm.
10 The drug transaction the subject of Charge 1 involved Aydin and Margus who supplied approximately 499.5 grams of heroin mixed to police covert operatives Tony and ‘Daz’ in exchange for $110,000 in cash. This occurred in the vicinity of the Al Diwan restaurant in Mahoney’s Road, Campbellfield (‘the restaurant’) between 6.18 pm and 7.44 pm. During this period, you and Aydin exchanged several text messages in which Aydin told you to ‘Wait at home’ and Margus would come to you.
11 About 22 minutes after the completion of the drug transaction, you and Aydin arranged to meet at the restaurant. The meeting occurred at 8.22 pm. During this meeting, which lasted about 20 minutes, you and Aydin discussed the drug transaction. Shortly after this meeting, you attempted to call Harris, but he did not answer. The next day you arranged to meet Harris at the restaurant.
12 Your involvement in the transaction on 19 November 2014 (Charge 2) appears to have commenced early on 7 November when you contacted Harris and arranged to meet him at his apartment. This followed an approach made by Tony to Aydin the day before to purchase 500 grams of heroin. This transaction was delayed several days because of concerns raised by Aydin regarding the possibility Tony might be a police ‘plant’.
13 Once the drug transaction was confirmed for 19 November 2014, you contacted Harris at 5.35 pm that day to arrange for Margus to act as the courier to transport the heroin and the proceeds of the sale to and from the location where the exchange was to occur.
14 At about 8.43 pm that night, a drug transaction occurred in which Margus delivered 498.5 grams of heroin mixed to police covert operatives Tony and ‘Daz’ in exchange for $110,000 in cash. This also occurred in the vicinity of the restaurant. Shortly thereafter, Aydin met you in Memorial Avenue, Epping and handed you the $110,000.
15 Your involvement in the transaction on 9 December 2014 (Charge 3) appears to have commenced at 9.37 pm on 2 December 2014 when you received a text message from Aydin asking you to check a covert mobile phone, which was not being intercepted by police. This process was repeated at 6.29 pm on 3 December 2014 and 2.45 pm on 9 December 2014.
16 On 9 December 2014 at 4.05 pm you and Aydin met in the Epping Plaza shopping centre car park and you spoke together for about 30 minutes. Aydin had earlier met with a police covert operative code-named ‘Vili’ and agreed to supply him with one kilogram of heroin (mixed) for $220,000. You then attended at Baset Autotech and left after 5 minutes. At about 6.06 pm, after unsuccessfully attempting to contact Harris, you rang Wahab and asked him to bring one kilogram of heroin to you.
17 Meanwhile, Aydin was receiving the $220,000 cash from Vili in a carpark in Highlands Road, Thomastown. Aydin told Vili his ‘Boss’ would now be bringing the heroin to a nearby exchange location because ‘his driver’ had been involved in a car accident in Geelong. You dispute you are the person Aydin refers to as his ‘Boss’. I will make findings regarding this issue later.
18 At 7.00 pm, you and Wahab met in the Lalor Plaza shopping centre car park where you collected the heroin. After receiving a text message from the ‘Boss’, Aydin drove with Vili to Central Avenue, Thomastown, where he met you and received a red ‘Nike’ shoebox containing 1000.4 grams of heroin (mixed). Later, Aydin passed this shoebox and its contents to a police covert operative code-named ‘Daz’.
19 At about 7.16 pm, you met with Aydin in the Woolworth’s carpark in Thomastown where Aydin handed over the $220,000 to you. You later drove to the Chadstone shopping centre car park, where you met with a person named ‘Danesh’ and handed him an unknown proportion of the proceeds of the sale of heroin. The prosecution alleges, and I accept, Danesh operated a money exchange retail business in Dandenong and he was responsible for remitting money derived from the syndicate’s drug transactions.
20 So far as your involvement in the drug transaction giving rise to Charge 4 is concerned, at about 2.41 pm on 15 December 2014, Vili placed an order with Aydin for one kilogram of heroin (mixed) for $220,000. Aydin then messaged you to check your unintercepted covert mobile phone and he then called you to arrange a meeting. About 40 minutes later, you met with Aydin in Shankland Reserve in Roxburgh Park. The prosecution alleges, and I accept, this meeting was called to arrange the details of the proposed drug transaction which was to occur that evening.
21 You then made a very short visit to Baset Autotech and later contacted Harris to arrange for a courier for the drug transaction. At 6.00 pm, you met with Harris at the restaurant. Following this meeting, Harris called Al-Hamza and arranged for him to assist in the drug transaction.
22 At about 7.20 pm, you returned to the restaurant and met with Aydin who had been in contact with police covert operative Vili to organise the drug transaction for 8.00 pm that day. A short time later, Harris and Al-Hamza arrived with the heroin in a black plastic bag. Al-Hamza placed the bag containing the heroin in Aydin’s car.
23 A short time later, Aydin drove away from the restaurant with the heroin and met with police covert operatives Vili and Daz in a carpark in Highlands Road, Thomastown. Aydin told Vili the ‘Boss’ was having problems with his driver. I am satisfied this was a reference to you having difficulties with Margus.
24 Following receipt of $220,000 in cash, Aydin retrieved the plastic bag containing 1001.6 grams of heroin (mixed) and placed it on the front passenger seat of the vehicle driven by police covert operative Daz.
25 Following the drug transaction, Aydin drove directly to the restaurant and met with you. You had a 13-minute conversation before you and Aydin drove your respective vehicles in convoy around the corner and stopped in Kwinana Court, where Aydin handed the $220,000 cash to you. You returned to the restaurant and parked outside in the service lane. You called Harris, who arrived about 10 minutes later and took possession of the bag containing the $220,000 cash and drove away.
26 The next day at about 4.10 pm you handed at least part of the proceeds of this drug transaction to Danesh at or near Chadstone shopping centre.
27 You were arrested at your home in Redrock Road, Wollert on 17 December 2014 and you have been in custody on remand since that date. Your home and motor vehicle were searched. Banknotes totalling $13,800 and $1,200, both being part of the money exchanged for heroin on 19 November 2014 (Charge 2), were found in your walk-in wardrobe and wallet respectively. Police also located nine Nokia mobile phones and a Blackberry mobile phone, four of which were used by you during the operation. I note there is no charge of possessing proceeds of crime before me and you will not be punished in respect of your possession of the cash and mobile phones. Notably, no drug trafficking paraphernalia nor any firearms or ammunition were found at your premises.
28 You participated in a record of interview in relation to these charges in which you denied any involvement in drug trafficking. You generally denied all specific allegations put to you.
29 Subsequent chemical analysis established the heroin mixtures the subject of Charges 1, 3 and 4 was 60% pure diacetylmorphine, while the heroin mixture the subject of Charge 2 was 50% pure diacetylmorphine.
Your Role in the Offending Conduct
30 I am not satisfied beyond reasonable doubt you were in control of the sale of heroin for the syndicate or ‘at the top of the syndicate’. Nor am I satisfied you were above Aydin in the hierarchy of the syndicate. In my view, Aydin’s description of you as the ‘Boss’ is equivocal. However, I am satisfied you had a much greater role than Harris, Wahab and Margus. You were not a ‘runner’ as your senior counsel described you, nor were you merely a drug courier.
31 For the purposes of sentencing you, I am satisfied you and Aydin were effectively middle managers. If Aydin can be likened to the sales manager, your role was akin to that of the production manager. Your senior counsel accepted this is ‘middle-level’ trafficking.
32 You played a significant role in the sale of heroin by the syndicate, coordinating those involved in transporting the heroin to the location of the drug deals and the disposal of the cash received. On three occasions you personally received or dealt with the money derived from the heroin sales. Additionally, in the transaction giving rise to Charge 3, you personally delivered approximately one kilogram of heroin to a police covert operative.
33 Moreover, you were the only person who dealt with Danesh, the money exchanger. I accept it can be inferred by the timing of your interactions with Danesh, following receipt of money from the sale of heroin, the conversations you had with him were in relation to dealing with at least some of the proceeds of the heroin sales.
Offence Seriousness
34 The most serious charges before me, two charges of trafficking in a large commercial quantity of a drug of dependence, are very serious criminal offences as indicated by the maximum penalty of life imprisonment, which is the highest maximum penalty in the criminal calendar. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have committed in Charges 3 and 4.[6] Moreover, you also fall to be sentenced on two charges of trafficking in a drug of dependence, which are also relatively serious criminal offences, as indicated by the maximum penalty of 15 years’ imprisonment.
[6] Djordjic v The Queen [2018] VSCA 227 [68].
35 As the Court of Appeal has recently reiterated, the sentencing regime for drug trafficking offences is quantity-based and, while the quantity trafficked is not determinative of my assessment of the objective gravity of these offences, it will always be of importance.[7] All things being equal, the greater the quantity trafficked, the more serious the trafficking offence.[8] Other important indicators of offence seriousness are your role, the duration of your offending and your motivation for involvement in it.[9]
[7] DPP v Gregory (2017) 268 A Crim R 1, 7–8 [23]–[24] (Maxwell P, Redlich and Beach JJA) (‘Gregory’).
[8] DPP v Fatho and Ors [2019] VSCA 311 [70] (Maxwell P, Priest and Beach JJA). See also Gregory, ibid; DPP v Fernando (2017) 268 A Crim R 26, 38–40 [50]–[55] (Redlich JA); DPP v KMD (2015) 254 A Crim R 244, 254 [36], 257 [50]–[52], 260 [64] (Maxwell P, Weinberg and Beach JJA); Adams v The Queen (2008) 234 CLR 143.
[9] Gregory 8 [24].
36 It is to be observed, the amount trafficked by you in committing Charges 3 and 4 was at the lowest end of the threshold quantity for that offence at the relevant time, being only 0.4 of a gram and 1.6 grams respectively over a ‘large commercial quantity’. The weights of drugs you trafficked in committing Charges 3 and 4, falling as they do towards the lower end of the scale for large commercial quantity, is a relevant factor in assessing the objective gravity of your offending conduct in relation to each of those offences.[10]
[10] Gregory 7 [23]; Djordjic v The Queen [2108] VSCA 227 [69].
37 Turning to the trafficking simpliciter charges, Charges 1 and 2 involved 499.5 grams and 498.5 grams of heroin respectively, which are both only very slightly under the commercial quantity threshold at the relevant time of 500 grams. This means, so far as the quantity trafficked by you is concerned, these are very serious examples of the offence.
38 So far as subjective factors affecting offence gravity are concerned, your role was in the middle of the hierarchy for offences of this type, being akin to a ‘production manager’ or a willing and efficient lieutenant. Whilst one must not lose sight of the fact you are being dealt with for four separate and discrete offences,[11] nonetheless the overall offending period was over six weeks. Your motivation for committing these offences was personal financial gain and you were found in possession of $15,000, being part of the proceeds from just one of these transactions.
[11] As opposed to a Giretti charge. See Giretti v The Queen (1986) 24 A Crim R 112.
39 Whilst the legislation is quantity-based and not harm-based, it is nonetheless relevant to observe grave harm is inflicted on the community by offences involving the trafficking of heroin by modern methods. The harmful effects of heroin and the seriousness of these offences have been emphasised numerous times in recent decisions in the Victorian Court of Appeal.[12]
[12] See eg Gregory ibid; Fernando v The Queen (2017) 268 A Crim R 26, 41 [61]; Arico v The Queen [2018] VSCA 135 [338]–[339].
40 In Gregory (a Pseudonym) v The Queen (‘Gregory’), the Victorian Court of Appeal recently held current sentencing practice for commercial quantity trafficking is inadequate and needs to be uplifted.[13] The Court opined: ‘sentences well into double figures would have been expected for CQ trafficking offences where … the quantity involved approached the LCQ threshold’.[14] Moreover, in Nguyen v The Queen (‘Nguyen’) the Court said, ‘there is a need for sentences for trafficking a large commercial (and a commercial) quantity of drugs to increase substantially’.[15]
[13] Gregory 24–25, [100]–[103].
[14] Ibid 24 [98].
[15] Nguyen v The Queen [2019] VSCA 184 [49]. See also Gregory 25 [102].
41 You played a significant role in a highly sophisticated criminal enterprise. You were an integral part in an extensive and successful business of trafficking in heroin. People performing the role you did must expect substantial sentences, because without them the trade in narcotics would collapse.[16] Whatever descriptor is used to characterise your role must not obscure my assessment of what you actually did.[17]
[16] R v Muanchukingkan (1990) 52 A Crim R 354, 356 (Wood J). See also R v Le Cerf (1975) 13 SASR 237, 239 (Wells CJ); DPP (Cth) v De La Rosa (2010) 79 NSW LR 1, 62 [256] (McClellan CJ at CL).
[17] See R v Olbrich (1999) 199 CLR 270, 279 [19] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
42 By performing your role in the syndicate, you were knowingly part of the conduit between the importer of heroin and the final buyer on the street. Your role can be characterised as being that of a willing participant at the wholesale level, albeit I am unable to find you were the prime instigator or organiser of the business. Nonetheless, the business required people to perform the role you willingly undertook. In this sense you played a critical part in the success of the operation overall.
43 It appears personal financial gain was your sole motivation for committing these offences. Moreover, there is evidence of significant enrichment arising out of the present offences. Nonetheless, I accept there is no evidence you were living a grandiose lifestyle.
44 Overall, I assess your moral culpability in relation to this offending as being very high.
Personal Circumstances
45 You were born and raised in Afghanistan. You are now aged 54 years and you were 48 and 49 years old at the time of committing these offences.
46 Your first language is Pashtun, but you also speak Urdu and Persian to some extent. You learnt to speak English whilst in Pakistan during the early 1990s and your verbal proficiency in English is good.
47 You are the third child in a sibship of nine. Your father was an officer in the Afghani army and your grandfather was a local governor. Your family were active in local politics, which resulted in their fortunes considerably changing during your homeland’s fluid political situation.
48 You describe your childhood in positive terms. Your family lived in comfortable circumstances and you always had plenty of food to eat. You did not suffer any significant childhood illness or injuries or any form of mistreatment.
49 The Soviet Army invaded Afghanistan when you were about 10 years old. Your paternal grandfather was killed shortly after the invasion and your maternal grandfather was also executed. Your father was imprisoned by the Russians and as the eldest son you became the primary provider and breadwinner for the family.
50 When aged about 14 years, you fled to the border areas between Afghanistan and Pakistan with several of your sisters and members of your extended family. Your father was expected to join you there; however, he was arrested by the Soviet authorities. He was not able to join you and your family for four and half years.
51 Your family remained in the border regions for some time. During this period your family sold carpets and engaged in other trading ventures when possible. Your family’s circumstances improved when the Mujahidin took power in Afghanistan. However, after Kabul fell to the Taliban, you and your family were again forced to flee. Your father died of a heart attack and an uncle was killed by the Taliban in about 2004.
52 Throughout this period, you were exposed to the ongoing stressors of the conflict occurring in your country. In addition to the effect on your own family members, you witnessed the death and serious injury of many of your compatriots. You lived in a state of constant vigilance and you were often fearful for your own life and those of other family members.
53 Most of your schooling occurred in Afghanistan, but you completed the equivalent of Year 11 in Pakistan after fleeing your homeland. After finishing school, you attended a local tertiary institution, where you studied political science for two years. However, you were unable to complete your studies because of restrictions on immigrants. You have also completed some training in information technology.
54 You occupied a range of positions while living in Afghanistan and Pakistan. These included an administrative role with a local airline and working in an import-export business which sold carpets. Prior to the Taliban coming to power, you worked for the Afghani government, although you are unclear regarding the exact nature of your employment. Since arriving in Australia, you have engaged in very little paid employment.
55 You married your wife, Zarlasht Azizi, in 2001 and together you migrated to Australia in 2004. You settled in Melbourne where you have mostly resided since. You are an Australian citizen.
56 The marriage was arranged by your respective parents who are first cousins. You have two children of the marriage, Nargis, who is 15 years old, and Abdullah, aged nine, who are both studying from home in the present COVID-19 lockdown.
57 You describe your marriage in glowing terms. You told Mr Patrick Newton, a clinical and forensic psychologist engaged by your legal representatives, you were more than happy, and your wife is ‘a very good lady’ who looks after you and your children in an exemplary fashion. You said your wife and other family members visit you regularly in custody and this has helped you cope with the rigours of incarceration. You are confident your marriage is secure.
58 You have visited Afghanistan several times since migrating to Australia to attend family weddings and other like events.
59 In 2010, you were kidnapped by insurgents in Pakistan and held captive for 32 days whilst your captors attempted to extort a ransom from others.[18] For most of your time in captivity you were shackled and confined in a very small room. At times you were allowed out of confinement, but only to participate in daily prayers. When no ransom was forthcoming your captors discussed killing you. You escaped during one of the daily prayer sessions and you attribute your salvation to divine intervention.
[18] See newspaper article clipping (Exhibit O11).
60 You experienced consistent symptoms of trauma in the period following your kidnapping and captivity. You told Mr Newton these symptoms continue to trouble you to this day.
61 Since 2012, you have been your mother’s primary carer and you have been in receipt of a carer’s payment on this account.
62 Your senior counsel submitted on your behalf, your mother’s ill health and your wife having to cope without your support with two children, have imposed considerable emotional pressures upon you. While your brother does provide some support for your family, this does not alleviate your concern because his professional duties as an Afghan interpreter for the Commonwealth Department of Immigration and Ethnic Affairs frequently require his absence for weeks at a time.
63 Since being in custody on remand for these offences, you were employed in horticultural activities at the MRC and as a billet delivering breakfasts and lunches to various other units. You are currently not employed. You have also engaged in Islamic studies, not directed to violent jihad, but, as your senior counsel put it, ‘in true pursuit of [your] religion’. You received regular visits from your family until such visits were suspended on 21 March 2020 as a result of the COVID-19 crisis. You now talk to them on the telephone and via Skype as much as you can — two or three times per week.
64 You are presently medicated for depression, high cholesterol and gastric reflux. You regularly attend the prison medical centre including to collect you medications.
65 I received a psychological report from Mr Newton.[19] He assessed you on 17 January 2019 during an extended consultation conducted via video-link to the Metropolitan Remand Centre.
[19] Exhibit 02.
66 You reported you do not drink alcohol or use illicit drugs. You did not commit the present offences in order to support an addiction to illicit drugs or alcohol.
67 You have a history of problem gambling dating back to your time in Pakistan. Your gambling has markedly increased since 2011. Apparently, at this time you received the proceeds from the sale of overseas properties you inherited. You began attending the casino several times a week. You experienced some initial wins, whereby small wagers resulted in large returns. This led you into thinking you could make substantial sums through gambling and soon you were compulsively engaged in this activity. You would typically lose $3,000 or $4,000 at a time and you would never walk away if you had money left to gamble. You quickly exhausted your own funds and then you began to borrow from family members to gamble. In this way you soon accrued significant debts.
68 You told Mr Newton your gambling continued in this manner until you were arrested for the present offending, approximately 4½ years ago. Mr Newton opined, at this time in your life you would have met the criteria for a gambling disorder under the DSM-5. You have not participated in counselling or any other treatment to address your gambling. During your interview with Mr Newton, you did not express a desire for such treatment. On the contrary, you expressed open scepticism about the benefit of treatment in your case.
69 Mr Newton observed you lack insight into your problem gambling, and he considered your ‘limited insight to be such that it is likely to place [you] at elevated risk of relapse to problem gambling in the time following [your] ultimate release from custody’. He concluded you have ‘little if any understanding of the principles underpinning successful relapse-prevention or behaviour modification’.
70 This opinion, which I accept, does not auger well for your prospects of rehabilitation, which I assess as being highly problematic. Any relapse into problem gambling, would likely lead you to committing further crimes to feed your habit. In this context, I note Mr Newton’s observation he ‘remain[s] relatively guarded about Mr Osman’s prognosis’. Accordingly, I find you are a moderate risk of reoffending.
71 Mr Newton opined you suffer from reactive anxiety related to your arrest and prosecution for the present offending. This is exacerbated by an understandable concern for your wife’s future wellbeing and you regret you will not be present during your children’s formative years.
72 Moreover, your childhood exposure to social dislocation, magnified by the deaths of your father and other close family members, together with the traumatic effects of your hostage experience, have led to intense feelings of anxiety and hopelessness. This has been exacerbated by the circumstances of your incarceration, particularly in the wake of the MRC prison riot on 30 June and 1 July 2015, where initially you were only allowed 30 minutes to one hour out of cell time.[20] It is not suggested you participated in the riot.
[20] See Debra Coombs to Molly Lynch email dated 12 September 2017 (exhibit O12).
73 Despite exhibiting some symptoms, Mr Newton did not diagnose you as suffering post-traumatic stress disorder at the time of interview. He opined any past disorder was in partial remission.
74 You reported to Mr Newton ongoing depressive symptoms which include lowered energy, rumination on pessimistic themes, and a range of physical symptoms such as altered appetite and persistent lethargy. However, while accepting your symptoms cause you clear distress, Mr Newton did not diagnose you as suffering from any major depressive illness. Rather, he opined the most likely diagnosis in your case was an adjustment disorder with mixed anxiety and depressed mood.
75 So far as your cognitive function is concerned, Mr Newton observed your thoughts were logical and there was no indication of any ‘formal thought disorder’, psychosis or any other problems with your ‘reality testing’. Your ‘capacity for moral judgment is not impaired’ and Mr Newton found no indication you have ever been incapable of understanding the wrongfulness of your actions or their likely consequences. Moreover, there was no indication you suffer any form of intellectual impairment or mental retardation.
76 Unsurprisingly, given the contents of Mr Newton’s report, your senior counsel accepted no Verdins principles[21] are engaged in your case. Nonetheless, I take your level of anxiety and depressed mood into account as part of your personal circumstances.
[21] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
Mitigating Circumstances
77 You have no prior criminal history or subsequent offences. You also have no criminal matters outstanding or pending. Accordingly, you fall to be sentenced as a person of otherwise good character, who is facing their first custodial sentence. However, as the prosecutor correctly submitted, relying on the judgment of Nettle JA in Dao v The Queen; Tran v The Queen:[22]
[P]ast good character is of lesser weight in sentencing for large scale drug trafficking offences. General deterrence is at the forefront of sentencing considerations, and that applies to persons of past good character as much as to inveterate criminals.[23]
[22] (2014) 240 A Crim R 574.
[23] Ibid 580 [9] (Priest JA agreeing), See also R v Nguyen (2010) 205 A Crim R 106 [72](j); Tsang v Director of Public Prosecutions (Cth) (2011) 35 VR 240 [162].
78 I have had regard to several character references tendered on your behalf, including those provided by your wife, mother and a younger brother.[24] You come from a highly respected Afghan family and were yourself held in high esteem within the Melbourne Afghan Muslim community. You are described as ‘a caring, respectful and polite person and a loving husband and father’. You have made numerous contributions to the Afghan community and several members of that community attest to your present offending being out of character for you. It is clear you have significant family and community support.
[24]Exhibits O4 to O9 (inclusive).
79 You pleaded guilty at a late stage in the proceedings on 9 November 2018. Nonetheless, I accept your pleas were entered at the earliest forensically reasonably opportunity given the prosecution’s change in position regarding not proceeding on a between dates Giretti charge, its acceptance your role in the syndicate was not as high as was previously asserted, and its acceptance you were not in control of the syndicate’s drug supplies.[25] You are entitled to have these early pleas of guilty taken into account in your favour.
[25] See Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).
80 Your pleas have significant utilitarian benefit considering the likely length and complexity of any trial and the large number of witnesses who would have needed to be called. Your pleas also indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice.
81 Moreover, in your case I accept you demonstrate true contrition and remorse for your offending conduct. This is evident from the testimonials tendered on your behalf.
82 Another very significant mitigating circumstance is the effect of delay in your case. There will always be some delay in prosecuting highly complex drug cases, but here there has been considerable systemic delay occasioned by the progress of these proceedings through the courts, interlocutory appeals by co-accused, a co-accused’s trial, my personal circumstances and the effects of the COVID-19 pandemic. The law recognises ‘delay is more likely to be a major mitigatory factor where the prosecution or the justice system is responsible for the delay’.[26]
[26] Judicial College of Victoria, Victorian Sentencing Manual, online, page 142 [7.5.3.2].
83 As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[27]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[28]
[27] (2013) 40 VR 436.
[28] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
84 So far as your rehabilitation during the period of delay is concerned, this is difficult to assess as you have been in custody on remand since your arrest. You appear to have been gainfully employed as a billet until quite recently. At one stage you were accepted as a peer educator or mentor, but you were unable to commence this role because you were moved to another unit. You have committed three prison offences and several more minor infractions of the rules for which you have been disciplined by payment of a $50 fine and the removal of privileges. Since your initial reception into custody, you have undergone 23 urine drug screens which have all been negative.
85 As I earlier said, your prospects of rehabilitation are highly problematic and will largely depend on you not recommencing your gambling addiction upon your release form custody.
86 So far as delay akin to punishment is concerned, you have had these matters hanging over you since you were arrested on 17 December 2014, a period of about 5½ years. Since the plea hearing, some fifteen months ago, you have had the very real prospect of a very significant sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you and your family significant stress and anxiety.
87 Your 79-year-old mother suffers from significant medical conditions, including depression, hypertension and severe osteoarthritis which causes severe pain.[29] She needs surgery to her knee but refuses to have this without you being present to help her. She has been medicated for depression since your arrest. Because of her condition and the COVID-19 pandemic she cannot visit you in gaol. The COVID-19 pandemic has increased the level of your concern particularly for your mother.
[29] See letter from Dr Adeel Tariq dated 6 December 2016 (Exhibit O10).
88 Your senior counsel relied on your mother’s health conditions and your inability to care for her in support of a submission these circumstances will add to the burden of custody in your case. He expressly disavowed any suggestion her medical conditions constituted exceptional circumstances under Markovic v The Queen.[30]
[30] (2010) 30 VR 589
89 Your wife regularly suffers debilitating panic attacks since your arrest, and your young son is not coping well at school.[31] One of your sisters died of cancer some months ago and you were unable to attend her funeral.
[31] See letter from Ms Paula Forrester, School Counsellor, East Preston Islamic College dated 12 February 2019 (Exhibit O3).
90 I accept these circumstances have imposed considerable emotional pressure on you and concern for your family’s welfare and your inability to financially and emotionally support them will weigh heavily on you and increase the burden of custody in your case. Moreover, through no fault of yours, you have suffered a degree of custodial hardship as a result of lockdowns occasioned by the MRC prison riots and the COVID-19 pandemic. Nonetheless, you currently have ‘half day’ run outs each day as per current processes in place due to COVID-19.
Application of Sentencing Principles
91 I have had regard to current sentencing practices in relation to the charge of trafficking in a large commercial quantity of a drug of dependence and trafficking in a drug of dependence simpliciter in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym)[32] and the Victorian Court of Appeal decisions in Gregory and Nguyen. The Crown also referred me to Fernando v The Queen[33] concerning current sentencing practices in relation to these offences.
[32] DPP v Dalgliesh(a Pseudonym) (2017) 262 CLR 482.
[33] Fernando v The Queen [2017] VSCA 208.
92 It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct which can constitute these offences, and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from these and other comparable cases, I have sought to do so in your case.
93 So far as parity is concerned, I have had regard to the sentence imposed on Mohammed Wahab by another judge of this Court.[34] He received a sentence of 11 years’ imprisonment with a non-parole period of six years, which was imposed for his storage of approximately 20.3 kilograms of heroin and MDMA, which is over 6 times the combined amount of heroin you are charged with. Moreover, he faced a Giretti count[35] covering the period 9 to 17 December 2014, rather than the four single transaction charges you face in relation to this operation.
[34][2018] VCC 1892 (Judge Wilmoth).
[35] Giretti v The Queen (1986) 24 A Crim R 112.
94 His role and personal circumstances were somewhat different from yours. He was significantly lower down the hierarchy of the syndicate than I find you were, being a ‘storeman and packer’ of the drugs. Moreover, he had taken ‘remarkable steps’ towards his rehabilitation during the lengthy delay in finalising his case. He had ‘taken every possible opportunity to use [his] time well’ and he was found to have ‘excellent prospects’ of rehabilitation. He was educated and had conducted a successful business as an auto mechanic. Nonetheless, despite these distinguishing features, to the extent Wahab’s sentence is of assistance to me, I have had regard to it.
95 I have also had regard to the sentences I passed on your co-offenders in this operation, Anthony Harris[36] and Rami Margus.[37] So far as Harris is concerned, on a charge of trafficking simpliciter in a drug of dependence, equivalent to your Charge 2, he was convicted and sentenced to 4 years’ imprisonment. On a charge of trafficking in a drug of dependence in not less than a large commercial quantity, equivalent to your Charge 4, he was convicted and sentenced to 11 years’ imprisonment. He received a total effective sentence of 12 years’ imprisonment with a minimum non-parole period of 8 years.
[36] DPP v Harris (a Pseudonym) [2019] VCC 1546.
[37] [2020] VCC 342.
96 Harris pleaded not guilty and was convicted by a jury at trial. His role was significantly lower in the hierarchy than yours, being a ‘transport supervisor’ and courier who acted at your direction. His personal circumstances were also markedly different from yours. While he had a serious enough prior criminal history, he faced the prospect of deportation to Iraq and he had spent time in immigration detention, which could not be declared as PSD. He also had provided considerable assistance to police in relation to another investigation, for which he received a significant sentencing discount, and there was an element of custodial hardship taken into account in his case.
97 So far as Margus is concerned, he pleaded guilty to seven charges on two unrelated indictments which included the equivalent of your Charges 1, 2 and 4. On his Charges 1 and 2 (equivalent to your Charges 1 and 2) he received sentences of 2 years’ and 6 months’ imprisonment. On his Charge 4 (equivalent to your Charge 4) he received a sentence of 7 years’ imprisonment. His role in the syndicate was that of a drug packager and courier, who acted at the direction of Harris.
98 Margus had a relatively extensive prior criminal history, mostly for dishonesty related offences and driving offences. He received significant leniency under the principles espoused in Bugmy on account of his disadvantaged socio-economic background, and his having suffered physical and emotional trauma during childhood. Moreover, his severe intellectual disability meant Muldrock and Verdins principles applied in his case to lessen the weight I would otherwise have given to general deterrence and denunciation. This consideration also operated to significantly reduce his moral culpability for the offending conduct.
99 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
100 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, so far as is possible, you are rehabilitated and reintegrated into society.
101 General deterrence, denunciation and just punishment are very important sentencing considerations, particularly for the offences charged in Charges 3 and 4 on the Indictment. These offences are prevalent in the community and, as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.
102 Clearly, just punishment, general deterrence and denunciation must be given primacy in my instinctive synthesis, and I am of the view in your case specific deterrence and protection of the community need be given some weight. Moreover, I can only adopt a cautious approach to your prospects of rehabilitation, which I find to be highly problematic given your lack of insight and the very real risk you will return to satiating your gambling addiction upon your release from custody.
103 Trafficking in a large commercial quantity of a drug of dependence is a Category 1 offence for the purposes of s 5(2G) of the Sentencing Act 1991 (‘the Act’).[38] Accordingly, I must impose a sentence of imprisonment to be immediately served on Charges 3 and 4. In any event, I consider sentences of imprisonment to be immediately served are the only sentences on all charges on the indictment appropriate to achieve the purposes for which the sentences are imposed.[39]
[38] See Sentencing Act 1991, s. 3(1) category 1 offence paragraph (j).
[39] See Sentencing Act 1991, s. 5(4).
104 You fall to be sentenced as a serious offender on Charge 4. Accordingly, I must regard protection of the community from you as the principle sentencing purpose for which the sentence is imposed on that charge. The Crown did not submit I should impose a disproportionate sentence in order to achieve that purpose. Moreover, unless I otherwise direct, the sentence I impose on Charge 4 must be served cumulatively on all other sentences I impose on you in this case. In your case I will otherwise direct.
105 Given the overlapping nature of the present charges, I must be careful to give effect to the totality principle, particularly in making the orders for cumulation and concurrency. I must also avoid imposing a crushing sentence on you.
Stand up Mr Osman
On the charge of trafficking in a drug of dependence (Charge 1) you will be convicted and sentenced to imprisonment for 4 years.
On the charge of trafficking in a drug of dependence (Charge 2) you will be convicted and sentenced to imprisonment for 4 years.
On the charge of trafficking in a drug of dependence in not less than a large commercial quantity (Charge 3) you will be convicted and sentenced to imprisonment for 11 years.
On the charge of trafficking in a drug of dependence in not less than a large commercial quantity (Charge 4) you will be convicted and sentenced to imprisonment for 11 years.
I order 18 months of the sentence imposed on Charge 1, 18 months of the sentence imposed on Charge 2 and 5 years of the sentence imposed on Charge 4 be served cumulatively with the sentence imposed on Charge 3 and on each other. This makes a total effective sentence of 19 years’ imprisonment.
I order you serve a minimum of 13 years’ imprisonment before becoming eligible for parole.
I declare 1980 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
On Charge 4 I direct the fact you have been sentenced as a serious drug offender on that charge be entered in the records of the Court.
Pursuant to s 6AAA of the Sentencing Act 1991 I state the sentence I would have imposed on you but for your pleas of guilty would have been a total effective sentence of 23 years’ imprisonment with a minimum of 17 years before becoming eligible for parole.
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