DPP v Sazimanoski
[2018] VCC 973
•17 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02232
Indictment No. H12167907
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NEJAT SAZIMANOSKI |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 March 2018 | |
DATE OF SENTENCE: | 17 April 2018 | |
CASE MAY BE CITED AS: | DPP v Sazimanoski | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 973 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Trafficking in a drug of dependence in a commercial quantity – negligently dealing with proceeds of crime – possess unregistered category E handgun – possess prohibited weapon without exemption or approval
Legislation Cited: Crimes Act 1958; Criminal Procedure Act 2009; Control of Weapons Act 1990; Drugs, Poisons and Controlled Substances Act 1981; Firearms Act 1996
Cases Cited:Bell v Feehan [1985] VR 841; Berichon v R (2013) 40 VR 490; Hili v The Queen (2010) 242 CLR 520; Lipp v R [2013] VSCA 384; Markovic v The Queen (2010) 30 VR 589; Nguyen v The Queen (2016) 311 FLR 289; R v Osenkowski (1982) 30 SASR 212
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr D Hallowes SC with Mr A V Chernok | Doogue + George |
1 Nejat Sazimanoski, you have pleaded guilty to an indictment containing five charges ─ one charge of trafficking in a drug of dependence in a commercial quantity[1], two charges of negligently dealing with proceeds of crime[2], and two charges of possess unregistered category E handgun[3]. In addition, you have agreed to have me deal with a related summary offence, which has been transferred to this Court pursuant to s145 of the Criminal Procedure Act 2009, that being a charge of possessing a prohibited weapon, namely two Tasers, without an exemption under s8B or an approval under s8C of the Control of Weapons Act 1990.[4]
[1]Contrary to s71AA of the Drugs, Poisons and Controlled Substances Act 1981 (“the Act”)
[2]Contrary to s194(4) of the Crimes Act 1958
[3]Contrary to s7B(2) of the Firearms Act 1996
[4]Contrary to s5AA of the Control of Weapons Act 1990
2 The maximum penalty for trafficking in a drug of dependence in not less than a commercial quantity is 25 years’ imprisonment.[5] The maximum penalty for negligently dealing with the proceeds of crime is 5 years’ imprisonment.[6] The maximum penalty for possessing an unregistered category E handgun for a first offence is 14 years’ imprisonment[7] or 1,800 penalty units.[8] Finally, the maximum penalty for the related summary offence of possessing a prohibited weapon is 240 penalty units or 2 years’ imprisonment.[9]
[5]Pursuant to s71AA of the Act
[6]Pursuant to s194(4) of the Crimes Act 1958
[7]Pursuant to s7B(2) of the Firearms Act 1996. Charge 5 is not a subsequent offence for the purposes of engaging the higher maximum penalty — see Bell v Feehan [1985] VR 841, 843 (Gobbo J)
[8]A the relevant time a penalty unit was equivalent to $158.57
[9]Pursuant to s5AA of the Control of Weapons Act 1990
The facts
3 The Director of Public Prosecutions filed an Amended Summary of Prosecution Opening dated 1 March 2018[10] which, I am told by your senior counsel, I can treat as a statement of agreed facts.
[10]Exhibit P1
4 At the time of committing the offences, you resided at 31 Louise Street, Lalor, with your mother, your wife, Gezime Sazimanoska, and your five children. Your daughter, Semije Sazimanoska, is the registered owner of a property at 14 Woodson Drive, Wollert, where the offending is alleged to have taken place. At the time of the offences, you were not in employment but were receiving a disability support pension.
5 In March 2017, police commenced ‘Operation Tropics’, which targeted your cannabis trafficking activities. The operation was concerned with your trafficking, your customers and your suppliers.
6 For the purposes of the operation, police used a number of telephone intercepts, tracking devices and physical surveillance. Police established that you used five mobile telephone services between October 2016 and the date of your arrest on 1 August 2017. Two of these telephone services were registered in false names.
7 Police ascertained from their investigations, supported by admissions that you made subsequently in your record of interview, that:
(a)You were supplied with cannabis by co-offenders Ha Huu Nguyen, Phong Van Tran, Tuan Le and other unknown persons.
(b)You on-sold the drugs to co-offenders for distribution, including two known customers in Bendigo.
(c)You made the following transactions as evidenced by telephone intercept material. On 20 and 21 May 2017, you arranged the supply of 40 pounds of cannabis that was delivered on 21 May by Nguyen and Tran. On 5 July 2017, you supplied 7 pounds of cannabis to co‑offender, Shane Robinson. On 6 July 2017, you made an arrangement to delay a delivery of 30 pounds of cannabis being provided by Nguyen due to the arrest by police of Robinson. On 10 July 2017, you arranged for the delivery from Nguyen of 40 pounds of cannabis, which was to take place on 11 July 2017. On 11 July 2017, you arranged for an additional 20 pounds of cannabis to be delivered to you from Le. On 24 July 2017, you discussed with co-offender, Stuart Wicks, the setting up of a ‘crop house’ at 57 Bernard Drive, Melton South, including discussing the electrical work required, which was presumably a reference to an electrical bypass.
(d)You admitted that you received deliveries of cannabis from Nguyen and Le every two to three weeks.
(e)You admitted that you bought and sold cannabis by the pound and made $300 profit on each pound of cannabis.
8 Annexed to the Amended Summary of Prosecution Opening as Annexure A, is a detailed chronology of your drug-related activities, commencing on 1 May 2017 and concluding on the day of your arrest.
9 It is difficult to establish an accurate amount of cannabis which you trafficked throughout that period, however I was told that I should act on the basis that it was an amount somewhat above a commercial quantity, but obviously not as great as a large commercial quantity. This approach was supported by your counsel.
10 It is clear from the material contained in Annexure A that you were involved virtually on a daily basis throughout the period in the trafficking of significant quantities of cannabis and received significant sums of money for your involvement in that nefarious trade. It is also clear that there was a degree of organisation and sustained effort on your part in order to conduct this business of trafficking in a commercial quantity of cannabis. You used coded language when discussing your activities with your suppliers and others involved in the network of distribution of which you were a middle man.
11 On 1 August 2017, you purchased 30 pounds of cannabis from Tran and Nguyen. This transaction was monitored by police who intercepted the vehicle driven by Tran and Nguyen in East Wollert. At the time of interception, police located $60,000 in cash, which had been the payment by you for the cannabis supplied by Tran and Nguyen. Accordingly, it is clear that in this instance you paid $2,000 per pound for the cannabis you were receiving from your suppliers.
12 You were arrested on that day at the Wollert property and a search of that property was conducted pursuant to a warrant issued under the Drugs, Poisons and Controlled Substances Act 1981. You also participated in a video recorded interview in which you showed police the location of the 30 pounds of cannabis that you had just purchased from Tran and Nguyen. You also showed police the location of $160,050 cash which was concealed under the stove in the kitchen of the property (charge 2 part), a semi-automatic handgun under the sink in the laundry (charge 4), and two Tasers (related summary offence 6). In the second bedroom of the premises, police located two large vacuum-sealed bags containing cannabis with a combined weight of 7.6 kilograms, and a plastic bag containing 188 grams of cannabis. In the vehicle driven by you, police found a further $4,625 cash in the glove box (charge 2 part).
13 While the search of the Wollert property was being conducted, your daughter, Semije, observed via CCTV that you had been arrested at the Wollert property. She then attempted to dispose of a bag from the Lalor property by taking it to a relative’s home at 28 Wattle Street, Thomastown. This bag was subsequently retrieved by police and found to contain another handgun, which gives rise to Charge 5 on the indictment.
14 A search by police of the Lalor property located $8,306.55 cash (charge 3) together with numerous vacuum sealer bags and two vacuum sealing machines.
15 Following your arrest, you were taken to the City West Police Station and participated in a video recorded record of interview, in which you made full admissions to the trafficking of cannabis, and were otherwise very cooperative with police. Among other things, you made the following statements:
(a)You receive a disability support pension while your wife receives a carer payment.
(b)The handgun and the cash had been hidden by you at the Wollert property for approximately four weeks.
(c)You had been dealing with Nguyen and Tran for one and a half to two years. Regarding this, I note that that is a period considerably longer than the charged period and you will be sentenced only in respect of your conduct committed during the charged period; that is, 13 April 2017 to 1 August 2017.
(d)You bought and sold cannabis in pounds by weight.
(e)You would receive deliveries from Nguyen and Tran every two to three weeks at Lalor.
(f)You would then on-sell to your customers as part of your cannabis trafficking business.
(g)While selling the cannabis, you would use code words such as ‘tins of paint’ for pounds of cannabis, while cash would be referred to as ‘papers’.
(h)You would normally buy cannabis for $2,000 per pound and sell it for $2,300 to $2,400 per pound, thus making a profit of $300 to $400 per pound.
(i)You kept the guns, you said, for your protection, having bought them approximately six months prior to your arrest for $2,500 to $3,000 each.
(j)You had been trafficking ‘on and off, over 10 years’. Once again, I note that this brings your conduct outside the charged period and I will disregard that admission for the purposes of sentencing you. However, it does indicate the degree of cooperation you were offering to police at this stage and is relevant therefore to the mitigating factors which I will take into account.
(k)You also sold European cultivated cannabis known as ‘euros’ from a supplier in Adelaide, which you considered was better quality than the cannabis you were receiving from Nguyen and Tran. My previous comment regarding the relevance of this admission equally applies.
(l)You were earning about $25,000 a month from trafficking cannabis.
Nature and gravity of the offence
16 Trafficking in a commercial quantity of a drug of dependence is a serious criminal offence as indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have committed in charge 1.
17 Whilst the legislation is quantity-based and not harm-based, it is nonetheless relevant to observe that grave harm is inflicted on the community by offences involving the trafficking of cannabis by modern methods.[11] The harmful effects of cannabis and the seriousness of the offence have been emphasised numerous times in decisions in the Victorian Court of Appeal.[12]
[11]Nguyen v The Queen (2016) 311 FLR 289, 331 [142] (Redlich JA, Tate and Whelan JJA agreeing) (‘Nguyen’)
[12]See Nguyen 326 [123]
18 You played the primary role in a highly sophisticated criminal enterprise. You were conducting an extensive and successful business of trafficking in cannabis. Annexure A to the Crown Opening demonstrates the extent of your involvement in this nefarious trade. You purchased quantities as great as 18 kgs at a time and exchanged as much as $88,000 in one transaction for cannabis.
19 You were acting as a conduit between the grower of the cannabis and the final buyer on the street. Thus, you were somewhere in the middle between the grower and the end user. It would not be inappropriate to characterise your role as that of a wholesaler supplying to other businesses which then would ultimately supply to street level dealers. You ran an extensive and efficient business. It was your desire to keep your customers happy. You sought to source good quality cannabis and you bargained for prices so that you could maximise your profit.
20 During the period charged, which is approximately 3½ months, you trafficked in the order of 250 pounds or 113 kilograms. This represents 4½ times the commercial quantity threshold of 25 kilograms. You were purchasing from a number of persons higher up the distribution chain than yourself, in particular Nguyen and Tran, and you were purchasing in reasonably large quantities. On the day of your arrest, you had completed a transaction involving $60,000 worth of cannabis. This $60,000 does not form part of the proceeds of crime charge, as it was found in the possession of Nguyen and Tran and forfeited in proceedings brought against them.
21 You were the sole principal offender in relation to all these charges. You were the proprietor of the criminal enterprise and derived all of the profits from the business. Accordingly, you fall well within the mid-range of seriousness of offences of this kind. It follows that the warning given by the Victorian Court of Appeal in Nguyen v The Queen[13] that in future sentencing courts should, by increments, increase the sentences for offences against s.72A of the Drugs, Poisons and Controlled Substances Act in the mid-range of seriousness, applies to you, albeit yours is an offence against s71AA of the Act. For the purposes of the application of the principles espoused in Nguyen, I consider it is artificial to draw any distinction between a mid-range commercial cultivator and offending committed by a mid-range commercial trafficker, who provides at least part of the conduit between the cultivator and the ultimate end user.
[13]Nguyen 296 [4 iv], (Redlich JA), 358–9 [245], 365–6 [272] (Whelan JA)
22 Accordingly I sentence you on the basis that this is mid-range offending and that the principles laid down by the Court of Appeal in Nguyen v R[14] apply in sentencing you.
[14](2016) 311 FLR 289
23 Financial gain was your sole motivation. Evidence of financial reward received or anticipated by an offender is relevant to an assessment of the objective gravity of the offence before the Court.[15] Whilst I accept that your initial motive was to provide for your wife and five children in circumstances where you were on a disability support pension, your wife was on a carers benefit and you were struggling financially, as your senior counsel accepted on the plea, need soon turned to greed and you established a significant business generating a significant amount of money.
[15]Ibid 329 [136]
24 In your record of interview, you admitted that you were making $300 to $400 profit per pound of cannabis sold. As you became further involved in the cannabis trafficking world, your lifestyle increased and you commenced gambling. You also purchased luxury motor vehicles and, whilst I accept that you were not living the life of the rich and famous, you were nonetheless breaking the law in order to support an outward appearance of success.
25 Accordingly, I assess your moral culpability in relation to this offending as being high.
26 In your record of interview, you said that you were deriving $25,000 per month from your business, which would equal a total during the charged period of approximately $87,500. Clearly, the $172,981 represented by charges 2 and 3 constitutes considerable criminality over and above that represented by charge 1; particularly allowing for the fact that $60,000 of the profit from your business was spent in purchasing the 30 pounds of cannabis from Nguyen and Tran on 1 August 2017, which forms part of charge 1. Accordingly, most of the $172,981 represents additional criminal activity on your part and there is therefore a justifiable basis for ordering a significant degree of cumulation between the sentence I will impose on charges 2 and 3 and the sentence I will impose on charge 1.
27 So far as charges 4 and 5 are concerned, these offences are very concerning given that the weapons were possessed for a criminal purpose and were associated with your ongoing criminal activity as a drug trafficker. This is an aggravating circumstance.[16] However, I do accept that the weapons were possessed for a defensive rather than an offensive purpose, which somewhat reduces the sentence I might otherwise impose. Summary charge 6 is also concerning for similar reasons. The possession of Tasers by a person conducting a business of drug trafficking likewise demonstrates their possession is to be considered in the context of ongoing criminal activity.
[16]See Berichon v R (2013) 40 VR 490, 496 [26] (Redlich JA); Lipp v R [2013] VSCA 384 [10] – [11] (Redlich JA and Lasry AJA)
Personal circumstances
28 You are now aged 44 years.[17] You reside with your mother, wife and five children, and are presently on a disability support pension because you suffer from advanced chronic renal failure and hepatitis B.
[17]Date of birth is 24 January 1974
29 You have three prior findings of guilt arising out of a hearing in the Heidelberg Magistrates’ Court on 15 September 2003, where you were, without conviction, granted a 12 month bond to be of good behaviour and pay $100 into the Court Fund in respect of three offences which appear to be against the Commonwealth Classification (Publications, Films and Computer Games) Act 1995. These findings of guilt are entirely irrelevant for the purposes of imposing sentence on you in this proceeding.
30 Your personal circumstances were summarised by your senior counsel and are set out in a psychological report prepared by Dr Mathew Barth dated 5 March 2018.[18]
[18]Exhibit D3
31 You are the youngest of five children born to Macedonian immigrant parents. You were born and raised in New South Wales and described your upbringing in very positive terms. You maintain a very close relationship with your family, and they remain a key source of support in your life.
32 Your father died in 1995 from bowel cancer when you were aged 21 years. You were very distressed by your father’s death and, according to Dr Barth, you continue to ‘experience significant feelings of loss’ in relation to your father’s death. As noted earlier, your mother continues to reside with you, your wife and children. You also maintain a close relationship with your siblings, and while they are shocked and disappointed by your offending, they remain supportive of you.
33 A number of members of your family were present in court supporting you including your mother and eldest daughter and another daughter.
34 You attended primary school in New South Wales, and when the family moved to Melbourne, you attended Thornbury High School, leaving school at the beginning of Year 10. You describe yourself as being an average student. Upon leaving school, you worked in the produce section of Safeway, before taking responsibility for the full-time care of your father, who was suffering declining health. In this context, your family returned to Macedonia and a short time before your father’s death they came back to live in Australia, where your father sadly died.
35 You have been employed in a number of different occupations since returning to Australia and have had continual employment until your physical problems, which I will outline shortly, resulted in your having difficulty sustaining employment, at which point you were placed on the disability support pension. This inability to work contributed to significant financial problems for you and your family.
36 You have been married to your wife, Gezime, for approximately 23 years, and have five children. You continually felt guilty about your family’s finances and your inability to properly provide for them. You own the house in Lalor, which you purchased with your mother’s assistance. You have expressed considerable anxiety about the possibility of your family having to vacate this home as a result of your offending. There is currently a restraining order affecting the property, but the likely outcome of any proceedings to confiscate the property is unknown at this time.
37 So far as your alcohol and drug abuse history is concerned, you are a moderate social drinker, largely due to the difficulties you have with your kidneys. You first tried cannabis about four years ago, but have only used it between four to five times a year. You are not addicted or dependent on cannabis and you deny ever using any other illicit substances.
38 You commenced gambling approximately six years ago. You gamble approximately two or three times a week by playing ‘the pokies’. Your habit had increased from initially $100–$200 per night to $500–$1,000 per night at the height of your offending. This habit intensified your already existing financial problems, with the result that you have had difficulty paying the mortgage on your home when it fell due.
39 You admitted that your gambling remained problematic until your arrest, but you have not been diagnosed with any mental condition relating to gambling and this was not relied upon by your counsel in mitigation of penalty. However, I note that Dr Barth did opine that your gambling problems were sufficiently severe to warrant a diagnosis of ‘gambling disorder’ at the ‘mild to moderate’ level ‘in early remission’. Dr Barth opined that your gambling ‘remains a prominent criminogenic factor which requires containment in your case’. I take this to mean that, without this disorder being properly addressed, there is a real risk of your committing further offences to support your gambling.
40 So far as your mental health is concerned, you are currently experiencing feelings of guilt regarding the impact of your offending on your family, and you have been ruminating about your future prospects leading to anxiety-related and depressive symptoms. Dr Barth reported that this anxiety ‘contributes to persistent tension, difficulties relaxing, sleep disturbance and other physical manifestations of anxiety’. Dr Barth also opined that your ‘persistent feelings of shame … have undermined [your] emotional well-being’.
41 Dr Barth also observed that your concerns about your physical health also continue to significantly impact on your emotional well-being. You are pessimistic regarding the prospects of having a meaningful recovery and you are ‘beset with a sense of despair’. Dr Barth concluded that you meet the diagnostic criteria for ‘adjustment disorder with mixed anxiety and depressed mood’. This is reactive to your medical condition and your concerns regarding your current situation as a result of being arrested and charged in relation to the current offending.
42 Dr Barth opined that you are not intellectually impaired and that there are no deficits in your ability to appreciate the wrongfulness of your behaviour. He estimated that you fall at the lower end of the normal range of intelligence.
43 Mr Hallowes of Senior Counsel, who appeared on your behalf at the plea hearing, did not rely upon any Verdins principles as being engaged in your case, so far as your mental health is concerned. However, I will take into account Dr Barth’s opinion that your mental health will also make the burden of imprisonment greater on you than might otherwise be the case. In this regard I note Dr Barth’s comment that you are pessimistic with regards to your prospects of meaningful recovery from your kidney condition and are accordingly beset with a sense of despair.
44 I also note Dr Barth’s diagnosis of adjustment disorder with mixed anxiety and depressed mood and his comment that there is a risk of this developing into a more serious mood disturbance in the immediate period after sentencing, although he does add the rider, without psychological treatment and continued psychotropic medication. In this regard, I have no reason to believe that such treatment and medication will not be available to you as part of the general health plan put in place whilst you are in custody.
45 I also note that it is implicit in much of Dr Barth’s report that your current anxiety disorder is to some extent reactive and may very well improve once the curial process has concluded.
Motive
46 So far as the motive for committing these crimes is concerned, Dr Barth opined that, in the context of a person who was suffering a ‘deep sense of inadequacy in his personal life’, you ‘artificially (and illegally) enhanced your sense of self-worth by projecting an image of “success” by providing significant long-term financial stability for your family and yourself’. This led to you being ‘seduced’ by the lifestyle afforded to you by your illegally obtained financial gains, leading you to display ‘significant acting out behaviours (i.e. gambling and buying cars) which ultimately only exacerbated your financial problems’.
47 Dr Barth concluded that the dysfunctional features of your adjustment disorder are not sufficiently severe to meet the DSM-V criteria for a personality disorder. Clearly, your motive for committing these offences was to support your lifestyle and to provide for your wife, mother and five children in circumstances where you were not otherwise able to do so lawfully. This does not constitute a mitigating factor, but it does provide some explanation as to how you came to commit such serious offences at your stage of life. I accept that whilst to some extent your lifestyle was grandiose in the sense of purchasing luxury motor vehicles, you were not living the lifestyle of the rich and famous.
48 So far as the burden of custody is concerned, Dr Barth opined that:
Given his emotional and physical fragility, the complex interactive nature of his problems, and considering the difficulties that he is likely to experience accessing specialist medical and allied-health treatment in a custodial context, I would respectfully suggest that the rigours of a custodial penalty would weigh upon Mr Sazimanoski in a particularly onerous fashion. He is more likely to experience distress over and above the usual hardship that would be experienced by an individual in custody.
I accept that this is a relevant sentencing consideration in your case and I will give significant weight to custodial hardship in tailoring appropriate sentences in respect of the charges before me, in making the orders for cumulation and in fixing the non-parole period I will impose on you.
Prior Good Character
49 I received in evidence three character references:[19] one from your daughter, Semije Sazimanoska; one from your niece, Selma Sazimanoska; and one from another niece, Ajsc Tarevski. I accept that you are a person of prior good character and have been a loving husband and father to your children and that you are a person who has always been willing to give help and assistance within the family and your friendship group. I also accept that you have strong family support and I will take these matters into account in your favour.
[19]Exhibit D2
Early pleas of guilty and remorse
50 You entered pleas of guilty at the earliest opportunity. This is a significant mitigating factor in your case. Your pleas of guilty have objective utilitarian benefit as well as a subjective quality, in the sense that they indicate an acceptance of responsibility for your offending conduct and your willingness to facilitate the course of justice. Accordingly, you will receive a significant discount from the sentences that I would otherwise have imposed in respect of these offences.
51 I also find in your case that your pleas of guilty are indicative of true contrition and remorse. This was evident at an early stage when you were fully cooperative with police in your record of interview and made admissions to conduct which the police might otherwise not have been aware of, including conduct which falls outside the charged period for which, as I have earlier noted, you will not be sentenced. Nonetheless, it does indicate your willingness to unburden yourself to police and disclose the full extent of your significant criminal conduct over a lengthy period of time. Moreover, you told Dr Barth:
Now, I think what the hell was I doing. What I did was very bad. I got very greedy. If my Dad was alive to see this he would kick my arse.
52 Dr Barth also opined that you are ‘burdened by a sense of guilt for [your] behaviour’. Dr Barth said that you accept responsibility for your offending and you experience ‘a self-punitive inner dialogue’ and ‘persistent feelings of shame which have undermined [your] emotional well-being’.
Physical health
53 You have a complex medical history. You have suffered with severe kidney disease for most of your life, commencing when you were a child, at which point in time you were diagnosed at the Sydney Children’s Hospital as suffering degenerative kidney disease. This condition caused you to be hospitalised on numerous occasions resulting in absence from school, difficulty in participating in sporting activities and a general lack of enjoyment of the life that a child not suffering from such a condition would enjoy.
54 Your kidney disease has worsened in recent times. According to Dr Barth this has in part been as a result of your poor compliance with medical intervention. You now have a diagnosis of advanced chronic renal failure and you currently require dialysis three times a week owing to the poor functioning of your kidneys.
55 Dr Barth observed that your condition has continued to decline since being on remand from August 2017. You are currently resident in St John’s Medical Unit at Port Phillip Prison and have to attend St Vincent’s Hospital in the early hours of the morning on the three days that you undergo dialysis. This results in you being at the hospital for the whole day, three days a week, which adds to your physical fatigue and sense of social isolation. Apparently there have also been some complications regarding the insertion of the catheter for the delivery of your dialysis which has caused you further distress.
56 According to medical reports provided to Dr Barth from Dr Zoltan Vilagosh and Dr Jonathan Snider, you also suffer with Hepatitis B, hypertension, morbid obesity and you have in the past experienced periods of gout leading to a diagnosis of peripheral neuropathy in your feet. You are currently medicated for a number of conditions and this, according to Dr Barth, significantly impacts on your daily functioning.
57 Your senior counsel summarised your present symptoms as including lack of energy, pain and discomfort, various parts of your body are ‘puffed up’ and become numb. You also struggle with the cold.
58 It is clear that you are a very unwell man and the burden of custodial hardship that you will suffer over and above that of a prisoner of normal health is a significant consideration in sentencing you and, as I said previously, I will give significant weight to that factor in tailoring the sentences I ultimately impose.
59 I also received in evidence the extensive hospital records from St Vincent’s Hospital, Melbourne.[20] They contain among other things a consent for ‘end stage kidney disease treatment’. My attention was particularly directed to a report of Dr Jonathan Snider of 11 August 2015 confirming a diagnosis of ‘advanced chronic kidney disease’ and hepatitis B. There was a further report from Dr Snider dated 21 July 2017. At that time, Dr Snider opined that your kidney disease was ‘close to end stage’ and that you have long-standing dysesthesia involving both feet owing to peripheral neuropathy.
[20]Exhibit D4
60 My attention was also directed to a report from the Metropolitan Assessment Prison medical officer, Dr Mosa, of 11 August 2017 which would have been reasonably contemporaneous with your being remanded around that time. He noted that you were to undergo haemodialysis which was to commence soon after shunt surgery. You were described as being morbidly obese, your weight on that occasion being 139.7 kilograms. My attention was further directed to a note from a registered nurse at the Metropolitan Assessment Prison of 7 August 2017 relating to a plan to address your various medical conditions whilst in the prison hospital.
61 Also tendered on the plea[21] was a large number of documents relating to your health kept by the prison authorities at the Metropolitan Assessment Prison. These were largely repetitive of the material contained in the St Vincent’s Hospital documents but I have had regard to them as confirmatory of the other matters that were brought to my attention regarding your current health status.
[21]Exhibit D5
62 I have also had regard to the report of Dr Anna Bendall of St Vincent’s Hospital dated 21 August 2017, the report of Dr Jocelyn Shan of St Vincent’s Hospital dated 24 August 2017 and a St Vincent’s Hospital document headed ‘Nephrology eOutpatient’ dated 6 February 2018 written by Dr Veena Roberts.[22] I note you weighed 135 kg on 6 February 2018.[23]
[22]All three documents form Exhibit 6
[23]Exhibit 6
63 Your senior counsel relied on your ill health both in regard to imprisonment being a greater burden upon you and also that imprisonment will aggravate your condition. There was insufficient evidence for me to make a finding in your favour that imprisonment will aggravate your condition. The material before me demonstrates that you are properly treated whilst in prison in terms of being taken to attend dialysis and that you are properly medicated and otherwise monitored and that there are proactive plans in place that are intended to reduce your health risks, particularly by addressing dietary matters related to your morbid obesity.[24] It seems to me that in the controlled environment of a prison with proper health care and other supports, your condition can be properly monitored and treated and there is nothing to suggest that it will deteriorate any differently from its normal course compared with its progress in the event that you were at large in the community.
[24]Reference the note I referred to earlier from the nurse
64 Nonetheless, as I said earlier, it is clear on any view that you are a very unwell man. It is not possible to glean any real understanding of your likely life expectancy. However, on any view it is going to be less than a person of your age who is in good health. Accordingly, significant matters I must take into account as a result of your state of health are the added burden this will have on you in custody and the need for me to avoid imposing a crushing sentence, in the sense that any sentence I do impose in all probability will represent a larger proportion of your likely life than in the case of a person of your age who is in normal good health. This means that the sentences I ultimately impose for these offences will be less than they would otherwise have been were you not in this parlous condition.
65 I accept all of the factors put in mitigation on your behalf regarding your prospects of rehabilitation, except I would put those prospects as being very good, rather than ‘excellent’ as was suggested by your counsel. So far as your prospects of rehabilitation are concerned, I accept that being arrested and charged in respect of these crimes has been a salutary lesson for you, that you are genuinely remorseful and that you have good family supports and that all other aspects of your background suggest that you have learnt your lesson and are unlikely to reoffend in the future.
66 So far as the custodial hardship factor is concerned, senior counsel on your behalf submitted that this was also a matter of great consequence owing to the lack of access to facilities and entitlements available to other prisoners, such as out of cell time, making the way you serve your sentence particularly onerous when compared to a prisoner of normal health. As I previously said, I accept that the burden of custody will be great in your case and I will moderate the sentences I would otherwise impose to give effect to the additional hardships you will suffer as a result of your health conditions.
67 Whilst you are not in protective custody, I do accept that the way you will serve your sentence by reason of your medical condition in particular is such that it will be particularly burdensome.
68 I further accept that you were particularly cooperative with police during the search showing them the location of cannabis, cash and the weapons the possession with which you have been charged.
Application of sentencing principles
69 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.
70 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
71 General deterrence is an important sentencing consideration for the offence charged in charge 1.[25] The offence is prevalent in the community and, as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.[26]
[25]Nguyen 330 [149] – [140]
[26]Nguyen 331 [141]
72 Whilst just punishment, general deterrence and denunciation must be given primary consideration in the instinctive synthesis, I am of the view that, in your case, specific deterrence and protection of the community are not required to be given much weight at all. In my opinion, you have received a salutary lesson from the detection of your crimes and the consequent criminal proceedings. I accept the likelihood is that you have learned your lesson and are unlikely to reoffend in the future. Moreover, your current medical condition, which is likely to continue for the rest of your life, will also ensure that you are unlikely to reoffend in the future.
73 As I said earlier, I accept that you have very good prospects for rehabilitation. You have strong family support, insight into your offending conduct, are a low risk of reoffending, and are genuinely remorseful and you have provided substantial cooperation to police.
74 In their written outline, your counsel sought to invoke ‘mercy on compassionate grounds in order to avoid excessive suffering’ by you. During oral submissions, senior counsel on your behalf accepted that whilst mercy must always remain relevant in sentencing, you do not fall into that exceptional category where it becomes a sentencing consideration in and of itself. Your senior counsel sought to invoke what in some cases has been characterised as a ‘residual discretion of mercy’ in sentencing you. He referred me in particular to Markovic v The Queen[27] and R v Osenkowski.[28] In Markovic a bench of five justices of the Victorian Court of Appeal was convened to determine the limits of this concept in the context of a case involving third party hardship. The Court affirmed that:
[27](2010) 30 VR 589
[28](1982) 30 SASR 212, 212–3 (King CJ)
There must always be a place in sentencing for the exercise of mercy “where a judge’s sympathies are reasonably excited by the circumstances of the case”. This is a proposition of long standing and high authority, repeatedly affirmed in this court.[29]
But the Court also affirmed the need for consistency in sentencing and held that the ‘exceptional circumstances test’, which was developed in cases involving third party hardship, was necessary to ensure so far as possible that there would be consistency in sentencing.[30]
[29](2010) 30 VR 589, 590 [1] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA)
[30]Ibid 595 [19].
75 In Hili v The Queen[31] the High Court opined that consistency in sentencing is to be achieved by ‘consistency in the application of relevant legal principles’.[32] The ultimate object of any sentencing exercise must be to impose a just sentence in all the circumstances. If this can be achieved by the consistent application of established sentencing principles, then the circumstances of the case will not be sufficiently ‘exceptional’ to justify resort being had to a residual discretion of mercy.
[31](2010) 242 CLR 520
[32]Ibid 535 [48]–[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)
76 I am of the opinion that the circumstance of your suffering end stage kidney failure can be appropriately addressed by the application of established sentencing principles to your case without the need to resort to an amorphous residual discretion of mercy.[33] Ultimately, senior counsel who appeared on your behalf accepted this was so.
[33]Which I accept does exist in an appropriate and exceptional case
77 The fact you suffer end stage kidney failure is particularly relevant to the burden of imprisonment on you, the effect separation from your family support will have on you given your condition, and the need for me to avoid imposing a sentence that destroys any reasonable expectation of your having a useful life after release from custody.
78 Nonetheless yours are serious crimes, particularly that involving charge 1, and your culpability is high. Consequently, as the Court of Appeal has observed on numerous occasions, immediate imprisonment should ordinarily be regarded as virtually unavoidable in cases of this type.[34] Accordingly, I am of the view that a sentence of imprisonment involving a non-parole period is the only appropriate sentence which can give appropriate weight to the purposes for which this sentence is imposed.
[34]Nguyen 330 [140]
79 I am of the view that, even allowing for the rare circumstances in which you fall to be sentenced by reason of your end stage kidney failure, those purposes cannot be achieved by a sentence that does not involve your immediate confinement. Your senior counsel accepted this was so.
80 Nonetheless, there is a basis for extending a considerable amount of leniency to you by reason of your medical condition. The effect that will have on the service of your sentence of imprisonment and the fact that, whilst your life expectancy cannot be assessed with any degree of accuracy, nonetheless, it is reasonable to assume that any sentence I impose on your will form a larger proportion of your remaining life than would be the case for a person of your age who is not suffering end stage kidney failure. Consequently, I must avoid imposing a crushing sentence on you.
81 I have given anxious consideration to current sentencing practices for the offence comprised by charge 1 on the indictment, since the Court of Appeal decision was handed down in Nguyen, as revealed by decisions of the Court of Appeal and decisions of judges of this Court. However, given the peculiar circumstances of your case, current sentencing practice is of little assistance. Clearly, your personal circumstances will result in comparatively lenient sentences being imposed on you.
82 Mr Sazimanoski, these are serious offences, particularly charge 1 which is a particularly serious offence, and your involvement in it involved serious criminality and high moral culpability. Moreover, the possession of proceeds of crime in Charge 2 amounted to $164,675 in cash which is a considerable sum of money. Clearly, there is the risk of some double punishment and for that reason, the sentence will be moderated as will the orders for cumulation to avoid doubly punishing you in respect of Charges 1 and 2 and for that matter, Charge 3. However, the possession of the two category E handguns is also serious and particularly concerning given that the handguns were possessed by you in the context of your drug trafficking business, albeit I accept that they were held by you for defensive purposes. Nonetheless, these Charges 4 and 5 are serious offences and will require a significant sentence of imprisonment to be imposed.
83 Clearly, therefore, in light of the overall offending conduct and the particular offences you face, general deterrence and denunciation must loom large in your case. However, they must be moderated by reason of the personal circumstances applicable to you to which I have previously referred. I accept that your prospects of rehabilitation are very good and I also accept that specific deterrence and protection of the community are not particularly significant sentencing considerations in your case.
84 This is not a simple sentencing exercise involving as it does the balancing of a number of complex and competing considerations. Nonetheless, I consider that nothing short of a significant sentence of imprisonment overall is appropriate in your case, but that will be moderated and I will also impose a non-parole period which is significantly less than I would have imposed but for the factors personal to you.
Stand up, Mr Sazimanoski.
Balancing as best I can all relevant sentencing considerations including all the mitigating circumstances which have been put by your counsel on your behalf and giving full weight to your personal circumstances and the need to give effect to the totality principle, I sentence you as follows:
On charge 1, trafficking in a drug of dependence in not less than a commercial quantity, you are convicted and sentenced to 4 years’ imprisonment.
On charges 2 and 3, I consider it is appropriate to impose an aggregate sentence on those two charges because they are founded on the same facts and/or are part of a series of offences of the same character. You will be sentenced to an aggregate sentence of 1 year’s imprisonment.
On charges 4 and 5, for similar reasons, I consider it is appropriate to impose an aggregate sentence of imprisonment. On those charges, you will be convicted and sentenced to 18 months’ imprisonment.
On the related summary charge 6, possessing a controlled weapon, you will be convicted and sentenced to 2 months’ imprisonment.
I order that 6 months of the aggregate sentence I have imposed on charges 2 and 3 and 9 months of the aggregate sentence I have imposed on charges 4 and 5 be served cumulatively on the sentence I have imposed on charge 1 and on each other. The sentence I have imposed on summary charge 6 will be served wholly concurrently with the other sentences I have imposed in this case.
That makes a total effective sentence of 5 years and 3 months’ imprisonment and I order that you serve a period of 2½ years’ imprisonment before becoming eligible for parole.
I certify that the period of pre‑sentence detention to be reckoned as a period already served under this sentence is 259 days, not including this day, and I direct that that declaration be entered in the records of the Court.
In accordance with s6AAA of the Sentencing Act 1991, I state that the total effective sentence and non-parole period that I would have imposed on you but for your pleas of guilty, is 7 years and 4 months’ imprisonment with a non-parole period of 3½ years.
Remove the prisoner.
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