DPP v Yuksek
[2022] VCC 683
•19 May 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-21-01805
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SENER YUKSEK |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 March and 7 April 2022 | |
DATE OF SENTENCE: | 19 May 2022 | |
CASE MAY BE CITED AS: | DPP v Yuksek | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 683 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M. Rochford Q.C. with Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Mr T. Kassimatis Q.C. with Ms C. Marcs | Stephen Andrianakis & Associates |
HIS HONOUR:
Introduction
1 Sener Yuksek, you have pleaded guilty to an indictment containing a single charge of trafficking in a drug of dependence in a quantity that is not less than a large commercial quantity, for which the maximum penalty is life imprisonment. It is a rolled up charge as it encompasses a large commercial quantity of two drugs not one, namely MDMA and Methylamphetamine.[1]
[1] Charge 1 on indictment K10556269.
2 The applicable statutory threshold quantity for each of those drugs varies.[2] When, as in this case, there is a mixture of substance and drug of dependence, the following threshold quantities apply for a large commercial quantity. For the drug methylamphetamine, it is 750 grams. For the drug MDMA, it is 1 kg. For the purposes of the charge you have pleaded guilty to, the quantity of the mixture containing the drug methylamphetamine is 24 kg, while the quantity of the mixture containing the drug MDMA is 169.9 kg.
[2] As to which, see Column 1B in Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981.
3 The offence of trafficking in a large commercial quantity of a drug of dependence is a standard sentence offence for which the standard sentence is 16 years’ imprisonment.
4 At the time that you committed this offence on 1 March 2019, you were 35 years of age and only 3 days shy of turning 36. You were living on a semi-rural property located at Fraser's Rise, together with your wife and two children. You are now aged 39, having been born in March 1983.
5 The circumstances in which you committed this offence are set out in the detailed typed revised summary of prosecution opening for plea dated
28 February 2022.[3] It is alleged that you were part of a drug trafficking syndicate and within the operations of that syndicate you performed a very specific, limited but important role. As I have already noted, you are charged with a single date offending on the basis that on 1 March 2019, you allowed the syndicate to store a large quantity of methylamphetamine and also MDMA on your property in Fraser’s Rise. In essence, you facilitated the syndicates’ operation by providing a safehouse or storage facility for those drugs.
[3] A copy of which was tendered as exhibit A on the plea.
6 I have been astute to remain focussed on the nature and limits of your offending so as to avoid sentencing you on some wider or different basis than the one on which the prosecution have indicted you. It is important to state this because the prosecution opening is a wide ranging analysis of the nature and extent of the syndicate’s operations and makes references to events, circumstances and even some people that you had nothing to do with. No objection was taken by your counsel to the tendering of that document on the plea, but on the understanding that it was for the purpose of providing some context to your offending in the sense that it demonstrated that you were a willing participant in what was a large scale drug trafficking enterprise. I have been mindful to view that opening in its proper perspective when considering your own offending and the appropriate penalty for it.
7 I also note that the basis and explanation for your offending were discussed, to some extent, between counsel and myself during the course of the plea hearing.
8 And, each of the parties have provided written submissions with respect to this offending and the sentencing approach that the court should take.
9 I have had regard to the prosecution opening and those discussions and submissions when determining the appropriate sentence in this case. I will not recite in full the content of the prosecution opening now. It is sufficient, for present purposes, to provide the following briefer outline.
Circumstances of the offending
10 In 2018 and 2019, Victoria Police in conjunction with a number of other investigative agencies were investigating the syndicate operations of a large scale drug venture that was suspected to have been involved in the importation, manufacture and distribution of large quantities of drugs. At one point, you were identified as a part of the syndicate’s operations.
11 The syndicate members and their perceived roles were as follows.
12 Aiden Khodher (‘Khodher’) was believed to be the head of the syndicate and directed the actions of the other syndicate members Anthony Natale (‘Natale’) and Vincent Fitzpatrick (‘Fitzpatrick’). They were used by him to launder significant amounts of cash, deliver illicit drugs and receive money in exchange for drugs. Khodher also directed the purchase and storage of chemicals required for the drug manufacturing process.
13 Natale worked for Khodher delivering cash and drugs, received cash for the sale of drugs and performed other tasks as requested by Khodher including attending and purchasing items for use in drug preparation and mixing and preparing drugs for sale. On one occasion, he travelled to Western Australia in order to purchase a vehicle for Khodher and to receive large amounts of cash.
14 Fitzpatrick assisted Khodher with the importation of ingredients to be used in the manufacture of drugs, with storing these deliveries, and later, with the disposal of imported ingredients when they believed they were in danger of being discovered by police. Fitzpatrick received large amounts of cash for the assistance he provided.
15 As for you, Mr Yuksek, it is put that you assisted the syndicate by allowing your property to be used as a storage facility to store large commercial quantities of the illicit drugs methylamphetamine and MDMA.
16 Whilst Natale is alleged to have attended your property on a regular basis so as to prepare the drugs, it is not alleged that you assisted him or the syndicate by being involved in that activity yourself, whether by way of manufacture, preparation or packaging for sale of any of those drugs.
17 Part of the investigation of the syndicate involved the interception of telephone communications, the installation and monitoring of surveillance devices and physical surveillance.
18 As a result, the investigators became aware that Natale met with Khodher on a regular basis, usually at the rear of a Bar located in Ascot Vale. On 2 October 2018, Natale met with a police covert operative and provided him with a ‘token’, a common practice employed by money laundering networks for the purposes of identifying each other. He then handed the covert operative a bag containing bundles of cash totalling $200,000. Then, on 17 October, Natale handed a bag to a person called Nguyen en route to attending the Ascot Vale bar. Khodher later contacted Nguyen before meeting with Natale on 19 October. On 23 October, Natale met with Khodher at two separate locations and delivered three shopping bags to a Keysborough address. Police intercepted a vehicle that left that address a short time later. Nguyen was in the vehicle and found in possession of $999,950 in cash in two bags of similar appearance to those handed over by Natale, as well as a mobile phone that had been contacted by both Khodher and Natale. The remaining shopping bag was located in a separate vehicle that was intercepted by police after it had been driven away from the same Keysborough address later that day, by a man named Hung Mai. That bag contained $463,000 in cash as well as ATM receipts and Post it notes indicative of money laundering.
19 In late October 2018, Fitzpatrick ordered items online from a Chinese website at the direction of Khodher for the purposes of drug manufacture and trafficking. At around the same time, he took delivery of a vacuum food sealer from the same website. In early November 2018, he took delivery of 65.9 kg of plastic bags from China.
20 On 3 December 2018, Khodher was seen to attend a carpark at the rear of the Ascot Vale bar and meet with a man named Garg and then hand over a shopping bag that police later seized from that man which contained $300,000.
21 On the same date, Khodher met with a man named Wiggett who then travelled to Queensland where he was intercepted by police a few days later and found to be in possession of a bag containing 21kg of amphetamine.
22 On 24 December, Fitzpatrick sent Khodher a coded text about the importation of Cellulose Sodium, a substance used as a cutting agent for illicit drugs.
23 On 2 January 2019, Natale was seen to travel to your home in Fraser’s Rise.
24 On the following day, Fitzpatrick spoke to Khodher twice on the phone and complained about difficulties he was having paying for Cellulose Sodium via Western Union and Money Gram. In subsequent conversations, he told Khodher that he would contact the supplier and then meet with Khodher to discuss the situation.
25 On 6 January, Fitzpatrick took delivery of two packages from China containing a total of 40kg of Cellulose Sodium.
26 On 9 January, Khodher and Natale met with two members of a Western Australian drug syndicate at the Ascot Vale bar. At Khodher’s direction, Natale then obtained 5 kg of MDMA which he then handed to one of the other men.
27 On 10 January, Natale attended your address in Fraser’s Rise on two occasions, in between which he attended the Ascot Vale bar. On the second visit to your home, Natale stayed for approximately 40 minutes. He then met Khodher who was overheard telling him ‘Just leave one here’. Natale then called you to advise of his need to visit you again. He duly did so and remained at your property for about 10 minutes. Following that visit, he again attended at the Ascot Vale bar before then meeting you at a hotel in Caroline Springs.
28 On 11 January, Fitzpatrick rented a storage unit in Brunswick East.
29 On the same day, Natale met with Khodher before travelling to a different address where he met an unknown male with whom drugs and the sum of $24,850 were exchanged.
30 On the following day, Khodher spoke with Natale and cautioned him to be more careful and not to drive around with ‘that shit’ because he risked police catching him with a kilo of drugs and then 600 plastic bags. Khodher then instructed Natale to clean up the plastic bags on the ground before leaving. The prosecution allege that the plastic bags to which Khodher referred are the same bags that had been earlier purchased by Fitzpatrick.
31 On 16 January, Natale was seen to drive out of your garage and travel to the Ascot Vale bar before then meeting you at the hotel in Caroline Springs. After that meeting, Natale re-attended the Ascot Vale bar.
32 On 19 January, 90 kg of Cellulose Sodium was delivered to Fitzpatrick from China. In the days following, he communicated with Khodher about that matter.
33 The two of them then attended at a Bunnings store on 4 February and purchased drill attachments, plastic containers and a multipurpose mixer. Later that day, they were heard discussing buying and selling drugs involving significant weights and amounts of money.
34 On 10 February, the same two men discussed Natale, at Khodher’s direction, depositing money into his (i.e. Natale’s) accounts without attracting suspicion. Again, the sums discussed were significant. Ultimately, Natale made 16 deposits, all of $5,000 or less with the total amount deposited being $60,000.
35 Following those deposits, Natale met with Khodher who instructed him to travel to Perth to collect a vehicle and more cash. Natale travelled to Perth on
11 February, where he carried out those instructions over the next three days.
36 At a meeting between Natale and Khodher on 16 February, the two men discussed modifying the vehicle that had recently been purchased, the fact that a lot of people pay them with cash and the possibility of purchasing a money counting machine. After that meeting, Natale travelled to your property in Fraser’s Rise.
37 On 20 February, Fitzpatrick took delivery of a further 40 kg of Cellulose Sodium from China.
38 On 21 February, Khodher and Natale discussed a delivery of methylamphetamine in a half kilo block of ‘green tea’.
39 On the same day, Khodher contacted a man named Kholi and discussed a money laundering transaction which police believed involved $250,000, after which the two men met and Khodher is believed to have provided Kholi with a backpack.
40 On 22 February, Fitzpatrick took delivery of 40 kg of Cellulose Sodium. Further deliveries of 80 kg and 40 kg were received on 24 and 26 February, respectively.
41 On 26 February, Khodher and Natale discussed the purchase of buckets from Bunnings before Natale then travelled to your property, Mr Yuksek.
42 On 27 February, Fitzpatrick took another delivery of 40 kg of Cellulose Sodium. On that same day, Natale purchased a number of large buckets from Bunnings of a similar type to those he had earlier purchased on 4 February. Later that day, he drove to your address in Fraser’s Rise.
43 Natale returned to your property on the following day, 28 February, and spent the next 3 hours there. Police could hear the sound of an electric drill which they believed was being used with an electric mixer to mix large amounts of drugs as part of their preparation for later distribution.
44 Mr Yuksek, the police investigation revealed that Natale visited your address at least 23 times in the two month or so period between 2 January and
28 February 2019. On 18 of those visits, Natale met Khodher either before or after attending at your address.
45 On 1 March 2019, Fitzpatrick received delivery of a further 40 kg of Cellulose Sodium.
46 On the same date, police searched your property at Fraser’s Rise. As that search was occurring, Natale was seen to drive past the property and witness what was occurring. Almost immediately, he was detected making several phone calls in which he appeared to be panicking about the situation.
47 The search conducted by police at your property in Fraser’s Rise located the following items, Mr Yuksek:
· $3,500 in cash in the master bedroom;
· 12 twenty litre buckets and a 35 litre bucket, all of which contained MDMA, in a cupboard in bedroom 3;
· 2 cooler bags containing white powder, blue tablets and brown powder containing MDMA, in the same cupboard;
· 24 vacuum sealed bricks containing methylamphetamine concealed in Chinese tea packing, most being located on shelving in the garage with the remainder being located in the cupboard in bedroom 3;
· A vacuum sealing machine and a set of kitchen scales on shelving in the garage;
· 3 rolls of heat sealing vacuum seal bags, cling wrap, packaging material and a set of digital scales on a workbench in the garage;
· 3 twenty litre buckets containing residue of drugs near the rear garage door;
· 3 mobile phones, two of which belonged to you and the other to your wife; and
· 2 SIM cards in the master bedroom.
48 The MDMA located was in both raw and pill form. Those substances and the methylamphetamine were seized by police and later subjected to forensic analysis and testing, the results of which revealed the following:
· 159.2 kg of MDMA in the white buckets;
· 10.7 kg of MDMA in the cooler bags in both powder and tablet form;
· 24 kg of methylamphetamine in the vacuum sealed packages.
49 Thus, the total amount of MDMA found at your Fraser’s Rise property was 169.9 kg. The total number of MDMA tablets/pills located was 7011.
50 The total amount of methylamphetamine found at your property was 24 kg.
51 You therefore fall to be sentenced in respect of those drugs in those amounts. Your role and level of culpability are to be assessed in the context that you willingly allowed your property to be used to store those drugs on the date that they were discovered by the police, namely on 1 March 2019. The ambit of the financial reward that you were offered is unclear, as is the precise amount that you had been paid as at the date on which the police discovered the drugs at your property.
52 I note that in respect of the drug methylamphetamine, the threshold for a commercial quantity as a mixed substance is 250 grams and for a large commercial quantity it is 750 grams.
53 In the case of the drug MDMA, the threshold amounts for a mixed substance are higher, 500 grams for a commercial quantity and 1 kilogram for a large commercial quantity.
54 As such, your criminality as alleged in the rolled up charge of trafficking in a large commercial quantity encompasses you facilitating the storage of a quantity of methylamphetamine that equates to 32 times the threshold amount for a large commercial quantity applicable to that drug and a quantity of MDMA that equates to almost 170 times the threshold amount for a large commercial quantity of that drug. Of course, there is no higher category than a large commercial quantity for either drug and so the quantity range encompassed by a large commercial quantity is therefore infinite.
55 When the contents of the mobile phone belonging to your wife were analysed, police discovered that you had contacted your wife on three occasions to warn her not to go into the garage (on 27 January and again on 12 and 26 February 2019), and on one occasion to advise her to take the kids out for a while as you were expecting a visitor (on 22 February).
56 In the early afternoon of the day of the search, you and your wife were taken to the West Melbourne police station for interview. During your record of interview, you exercised your legal right to answer ‘No Comment’ to the questions and allegations put to you by the police.
57 Apparently, Mr Khodher arranged for a lawyer to attend at that police station to assist your wife.
Subsequent police investigation of other syndicate members
58 For the sake of completeness, I note that between 3 and 15 March 2019, Fitzpatrick took delivery of a further 160 kg of Cellulose Sodium, only some of which was in transit at the time of the police search of your property on
1 March.
59 In total, Fitzpatrick took delivery of 660 kg of Cellulose Sodium in the 9 week or so period between 6 January and 15 March 2019. It is put by the prosecution that the purpose of that substance was to assist in the manufacture of ecstasy pills (MDMA) at your property prior to that drug being distributed by Khodher.
60 Of course, it is not alleged that you played any role in the manufacture, preparation or distribution of any of the MDMA or methylamphetamine.
61 On 23 May 2019, Natale called an unknown male and expressed his concern about the police search and seizure at your property, during which he stated that he could not understand how it could happen as only four people knew about it. In a further call made on 17 June 2019, Natale told an unknown male that he had attended your house the night before the police search and ‘wiped everything down’.
62 On 16 September 2019, Khodher and Natale were heard discussing the police search at your property and how it would lead back to them. They agreed that Fitzpatrick needed to get rid of the 400 kg of Cellulose Sodium which they referred to as ‘mixing shit’. Ultimately, Fitzpatrick and Khodher were involved in carrying out that plan by transporting the Cellulose Sodium in Khodher’s vehicle and dumping it in the Maribyrnong River.
63 On 26 July 2020, Khodher was arrested by the Australian Federal Police in Queensland in relation to attempting to import 550 kg of cocaine into Australia from Papua New Guinea
64 On the same date, police arrested Natale at his home in possession of $6050 in cash and a zip lock bag containing cocaine. His DNA and fingerprints were detected on a number of items found by police at your property, including on 11 of the 20 litre buckets, the digital scales, heat seal bags and the vacuum sealer machine.
65 Fitzpatrick was also arrested at his home on that date. He was found in possession of $64,895 in cash and a number of documents and receipts relating to the Cellulose Sodium.
Pre-sentence detention
66 I note, Mr Yuksek, that you were charged and remanded in custody on the day that you were arrested and interviewed, namely on 1 March 2019. You remained in custody on remand for this matter until being released on bail on 9 April 2020.
67 Accordingly, you have spent a total of 406 days in pre-sentence detention for this charge, a period which I will declare and reckon as already served later in these sentencing reasons.
Resolution and plea of guilty
68 As is clear from the chronology attached to the prosecution opening, this matter was originally slated to proceed as a contested committal hearing on 23 August 2021, however resolved on that date without the need to call any witnesses. The matter was sent directly to this court via a hand-up brief procedure and listed for a plea hearing on 2 March 2022.
69 The plea commenced on that date and was completed on 7 April 2022.
70 I have been informed by counsel for the defence, that there was some delay in preparing the various briefs of evidence and that following a review of the material relating to Mr Yuksek, negotiation discussions occurred which resulted in a narrowing of the charges and a refinement of the role that the prosecution would assert that Mr Yuksek played in the syndicate’s operations.
71 In those circumstances, I consider it appropriate to view Mr Yuksek’s plea as having been entered at the earliest reasonable opportunity.
Personal circumstances
72 I now turn to consider your personal circumstances, Mr Yuksek.
73 It is a significant fact that you fall to be sentenced for this serious offence as a 39 year old first time offender. You have no previous findings of guilt or convictions and you have not been charged with any other offences since you were arrested for this matter.
74 You are the youngest of three children born in Melbourne to Turkish parents. You grew up in impoverished and difficult circumstances. Your parents worked as itinerant farm workers and so the family travelled extensively during your childhood. You attended numerous schools. Your father was a violent alcoholic and gambler. Your parents separated when you were aged 18, after which you supported your mother and became estranged from your father and brother.
75 You were barely literate when you left school after completing Year 10. You only achieved functional literacy after you had finished your schooling.
76 On leaving school, you commenced a cook’s apprenticeship but struggled with the theoretical aspects of the course. Nevertheless, you have been employed as a cook within various La Porchetta franchises for twenty years. Your most recent employment was as the head chef for four years at the Caroline Springs franchise of that restaurant chain.
77 To your credit, you were able to purchase a home. Your mother lived with you and you cared for her until her death in late August 2018 after a long battle with breast cancer. Her death devastated you. It caused a deterioration in your mental health which had already deteriorated after the birth of your first child.
78 So, after twenty years of long-term employment, you reduced your work hours and began to work part-time. That had a negative impact on you and your family and compromised your ability to financially provide for your family. It appears that this was still the situation when you became involved in this offending.
79 You met your wife Kerry in 2004 and the two of you married in 2012. You have two children, a son named Taner and another son named Yasin. Taner was born in May 2012 and will shortly turn 10. Yasin was born in October 2013 and is aged 8. Each boy suffers from a debilitating disability and has special needs. The impact and strain that this has caused to you and in particular, your wife, has been profound.
80 The nature and extent of their respective conditions is helpfully summarised by your counsel in the defence written submissions which are based on supporting medical and other documentation.
81 Yasin has been diagnosed with hemiparetic right sided cerebral palsy secondary as a result of perinatal injury. He acquired this condition following medical negligence on the part of treating physicians at his birth. A significant compensation award made on 15 December 2020 acknowledged the life-long nature of Yasin’s disability. The funds from that award are being kept in trust until he reaches 18.
82 Taner is autistic. He suffers from anxiety, behavioural issues and learning difficulties. He struggles with emotional regulation and expression. He finds socialising difficult and becomes fixated on certain things. He also struggles with aggression, impulsivity and nightmares. There was a delay of some years before he was able to be comprehensively assessed and diagnosed with Autism Spectrum Disorder (level 2) and co-morbid mild expressive language and processing speeds.
83 You are close to both of your sons and have shared equally in their care with your wife. In light of your mother’s passing and the fact that you will be sentenced to a significant custodial sentence for this offence, your wife is facing the unenviable prospect of having to care for and support Yasin and Taner alone.
84 After being bailed in relation to this matter on 9 April 2020, you returned to work for just over a year. On 3 June 2021, you ceased working in order to focus on spending time with your family and assist with the care of your two boys ahead of your plea hearing.
85 You are not in good physical health. You suffer from high cholesterol, hypertension and abnormal liver function, all of which may well be explained or at least exacerbated by your hazardous and problematic consumption of alcohol. You have been diagnosed with alcohol use disorder which is not yet in remission. You also experience migraines and lowered energy levels.
Explanation for the offending
86 The clinical and forensic psychologist, Patrick Newton, assessed you in his rooms on 3 February 2022, that is, almost three years after you had committed this offence. A delay of that magnitude creates some difficulties in making assessments as to your functioning in the lead up to and at the time of your offending. Any opinions formed must be considered in that context and cautiously.
87 To the extent that you described your offending to Mr Newton, he considered it to be consistent with the summary of prosecution opening. So, it would seem that you did not seek to minimise or mis-characterise your offending.
88 When asked by Mr Newton to explain your offending, you provided a written response which indicated that you had been using drugs, drinking alcohol and gambling in an attempt to deal with the depression that you were experiencing in the aftermath of your mother’s illness and death and the traumatic circumstances of your son’s birth and his serious medical condition.[4] You also made reference to gambling debts.
[4] See exhibit 3, report dated 22 February 2022, at [42].
89 In the course of the plea, your counsel acknowledged that there was a financial element to your offending. You expected to and were in fact paid some money for what you did. For example, your counsel as much as conceded that the $3,500 that police located in your bedroom fell into that category. But counsel also asked the court to accept that there were no trappings of wealth or any significant signs of unjust enrichment. The family was in fact in debt as demonstrated by the sizeable loan monies that were owing to St George Bank as at mid-November 2018.
Matters in mitigation
90 There are a number of matters in mitigation upon which your counsel were able to rely on your behalf, Mr Yuksek.
91 You chose to plead guilty to this serious charge at what I consider to have been the earliest reasonable opportunity. By taking that course as and when you did, you have saved the community from the cost and time associated with a trial. That plea demonstrates that you have been prepared to facilitate the course of justice. And, as the Court of Appeal have noted in Worboyes and a number of other cases, the utilitarian value of a plea of guilty is greater when, as here, it is entered during the Covid-19 pandemic when this court is facing a very significant backlog of trials and ongoing listing pressures. You are therefore entitled to and will receive a significant sentencing discount.
92 In all the circumstances, I am prepared to accept that you are remorseful for your offending. The plea itself provides some basis for that conclusion. Further support comes from what you told the psychologist, Patrick Newton, when he assessed you on 3 February this year.[5] Quite apart from regretting the negative impact that this offending has had and will continue to have on your family, you indicated that you were remorseful, embarrassed and ashamed for what you had done, that you wished you had not done it, that it was wrong, and that drugs are not a good thing and hurt people.
[5] Ibid at [43].
93 You are a man of relatively mature years who was of good character prior to this offending. You have remained offence free since your arrest. Those who know you well consider this criminal conduct to have been out of character. It would seem to have been an aberrant but very serious error of judgement on your part to have become involved, as you did, in this criminal conduct. I am confident that your arrest, prosecution, and sentencing together with the experience of having to serve a significant custodial sentence will be a salutary experience for you and one that is likely, in my view, to serve as a strong deterrent to any repeat offending.
94 You have demonstrated a good work ethic over many years and have a very good work history.
95 I accept that you were in straightened financial circumstances at the time you agreed to become involved in this criminal venture. Not only were you earning less since converting to part-time employment, you had accumulated gambling debts.
96 Whether your circumstances were such as to engage any of the principles in Verdin’s case was the subject of discussion at the plea and the source of disagreement between the parties.
97 Mr Newton diagnosed you with a number of conditions, including moderate alcohol-use disorder, moderate substance-use disorder, gambling disorder and persistent depressive disorder (dysthymia) where you remain vulnerable to more intense depressive mood disturbance.
98 At [54] of his report, Mr Newton concludes that your depressive symptoms would have decreased the speed of your cognition, made it more difficult for you to initiate action, and interfered with your decision making processes. But, he also noted that those effects would have been exacerbated by your substance abuse. As he also notes, the fact that you were otherwise able to continue with your normal activities of daily living despite these effects, indicates that the severity of those effects was relatively mild, which is to be expected in a sufferer of dysthymia.
99 Later in his report, Mr Newton notes that the accumulation of the stressors relating to your sons and your mother’s final illness and death was the precipitant for your depressive symptoms and that in turn, your depression – in combination with other factors – had an impact upon your judgement, decision making and reasoning.[6]
[6] Ibid, at [56].
100 As to the relevance of your substance use, Mr Newton states that it is likely to have affected your judgement, increased your impulsivity and decreased your ability to make rational decisions. He goes on to note that those effects were self-inflicted and familiar to you through extended use of those substances.[7]
[7] Ibid, at [63].
101 In relation to the gambling, he notes that this would have increased your financial burden and manifested in compulsion on your part and reduced behavioural control in relation to your gambling.
102 In light of that analysis by Mr Newton, which I accept, together with your own explanation to him as to the reason for and circumstances in which you offended, I have come to the following conclusions.
103 Your offending is to be distinguished from some other cases where the offender engages in drug trafficking out of pure greed and in order to make significant sums of money. Whilst financial gain was a motivating factor for you, I accept that you were in a tight financial situation, for a number of reasons, including your reduced level of income, the expenses related to your sons’ medical conditions, and the cost of your drinking, drug taking and gambling activities, all of which appear to have been engaged in as a means of self-medication for your depressive symptoms caused by the traumatic family circumstances you had been confronted with.
104 Whilst I am prepared to find that your depressive symptoms did, to a limited degree, interfere with your ability to engage in clear reasoning and decision making processes at the relevant time, it ought only have a modest effect in reducing the level of your moral culpability for this offending. That is because the effects of the depressive symptoms were, as Mr Newton noted, mild, and because they were exacerbated by your recourse to both alcohol and drugs. Further, I have no doubt that you well knew that what you were getting yourself into was a serious criminal venture that was both morally and legally wrong. This is in part demonstrated by your efforts to try and shield your wife from witnessing first hand the nature and scale of the operation by telling her to avoid the garage and to absent herself while you had a ‘visitor’ around.
105 Equally, whilst I am prepared to reduce the weight to be accorded to the sentencing factors of denunciation and general and specific deterrence in your case, the reduction will be only be a modest one.
106 Based on the observations of Mr Newton, whose report I have found quite useful, I am prepared to find that limb 5 of Verdins has been engaged but not limb 6.
107 As he notes at [49] of his report, the experience of having to serve a custodial sentence will disrupt your social supports and the concomitant increase in your stress levels would likely lead to at least a moderate deterioration in your mood. He anticipates a more difficult transition into the custodial environment for you than for prisoners who have sound mental health. At [66] of his report, Mr Newton states that because of your pre-existing depression, you are likely to experience some difficulties during (at least) the early phases of any time in prison.
108 Mr Newton’s opinions in relation to the likely impact of your depression on the experience of serving a custodial sentence provides an evidentiary basis for finding, as I have, that it will be a more onerous experience for you than for prisoners without your condition. However, the opinions he does express as to the likely effect that serving a gaol sentence will have on your depressive condition does not rise to the necessary level to justify a finding in accordance with proposition 6 of Verdins.
109 You will no doubt find the experience of having to serve a substantial sentence of imprisonment an onerous one, and not just because of your underlying depressive condition. Unlike some prisoners, you are not someone who is well versed in the gaol environment or in the criminal world, albeit that your time spent on remand before being bailed would have given you some exposure. I have no doubt that you will worry about how your wife and two sons are coping in your absence and that this will be a significant source of anxiety during the entire period that you remain in custody.
110 Whether the hardship which will no doubt be occasioned to your wife and sons as a result of you being imprisoned and separated from them is itself a matter that this court can and should take into account as a mitigating factor was addressed by each of the parties in both their written and oral submissions on the plea. The answer to that question depends upon whether the circumstances surrounding such hardship are exceptional. Whether or not family hardship gives rise to exceptional circumstances is a question of fact and degree. The circumstances must be clearly unusual or quite special or distinctly out of the ordinary. On any view, it is a high test and the defence bear the burden of satisfying the court that such circumstances exist.
111 The defence submitted that they can do so in this case.
112 In respect of Mr Yuksek’s two sons, the first point made by counsel was that you, their father, have displayed an exceptional ability to cope with the special needs and demands of both Taner and Yasin. Reliance was placed on the report of the psychologist Ms Pamela Matthews as she was recently asked to assess the family.[8] Ms Matthews found that overall, the impact upon the children should their father be incarcerated is likely to be developmentally negative but manageable. Of the two children, she assessed the needs of Taner as more pressing. Both boys are now of an age where structure and routine are important and there is a need to fit into a peer group. In her view, Taner will struggle at this crucial developmental stage because of his Autism. His need for a father is particularly important. Yasin also needs his father who he declared as his favourite person. Whilst Ms Matthews allowed for the possibility of the boys having personal visits and phone calls with their father whilst he is in custody, such contact is not the same as him being physically present in their lives. That absence will negatively impact this stage of each boys development, particularly for Taner, who, because of the social, emotional and behavioural impairments he suffers, requires a strong male role model and containment. Taner listens to his father and tends to whine, ignore, refuse or tantrum with his mother.
[8] Dated 24 February 2022, exhibit 4.
113 I make the following additional observation in relation to the potential hardship caused to Mr Yuksek’s sons as a result of his incarceration. First,
Ms Matthews has not been able to consider this question cognisant of the actual length of the sentence that Mr Yuksek will receive for this offending. I have that advantage over her. And second, the extent to which the two boys will be able to have contact with their father whilst he is in custody, including whether and to what extent and in what circumstances personal contact visits will be possible, is a little uncertain on account of the continuing problems caused by Covid-19. At least in the near to medium term, I would not rule out the possibility that there will be continuing, albeit intermittent problems with virus outbreaks, lockdowns and negative impacts on prisoner visitation rights. Even when personal contact visits are possible, the difficulties and practicalities of accommodating Taner’s behavioural issues within such a custodial environment would present significant challenges to his parents and the authorities.
114 With regards to the hardship caused to Mr Yuksek’s wife by having to be the sole carer of her sons while her husband and co-carer of the boys is incarcerated, Ms Matthews highlighted the different circumstances that face Mrs Yuksek now as compared to when her husband was in remand custody between March 2019 and April 2020. As she put it at page 13-14 of her report:
Two and a half years ago, while Mr Yuksek was remanded, Ms Yuksek had the assistance of her mother, and the children were younger and physically smaller. It will be far more difficult for Ms Yuksek this time around. Her mother’s health is poor, and the children are bigger and stronger. The management of temper tantrums and defiance, and the additional appointments Taner requires, will be a greater burden than before.
115 Defence counsel submitted that any parent of a child with disabilities experiences significant challenges, stress and anxiety and on a higher level than in relation to a child without disabilities. In this case, the disabilities which each boy suffers are very substantial and that increases the level of challenge faced by their mother. The challenge she faces by having to care for two such children is significantly greater than for one.
116 In response, counsel appearing on behalf of the prosecution emphasised the stringent nature of the test that must be satisfied before hardship caused to an offender’s family can be taken into account in mitigation of penalty. Whilst not doubting that there would be some hardship occasioned, counsel highlighted that part of Ms Matthew’s report that described the likely effect of Mr Yuksek’s incarceration on his family as ‘developmentally negative but manageable’. In those circumstances, submitted the prosecution, family hardship had not been established to the requisite degree.
117 I have carefully considered the submissions of each of the parties and the relevant evidence in relation to this issue. Having done so, I have concluded that the defence have been able to demonstrate to the court’s satisfaction that the hardship which will likely be caused to Mr Yuksek’s wife and two sons by his incarceration for a substantial period is to be properly described as exceptional and appropriate to be taken into account as a matter in mitigation. Factors I have taken into account in reaching that conclusion include, but are not limited to the following: the age and stage of development of each boy, the nature, severity and permanency of each boy’s condition, the apparently close bond that each boy has with their father, the challenges faced by a sole carer in having to try and care for and manage each boy individually and in combination, and the lengthy period over which those challenges will have to be met by Mrs Yuksek.
118 Delay is a further matter in mitigation relied on by the defence. As is clear from the chronology of these proceedings, there has been a delay of over three years between Mr Yuksek being charged and then sentenced. None of that period of delay is attributable to the defence or to Mr Yuksek. I consider the magnitude of that delay to be inordinate and appropriate to have regard to. It has twin significance. First, it has resulted in Mr Yuksek having serious allegations and an uncertain fate hanging over his head for a substantial period. And, second, it has provided him with the opportunity to demonstrate that this offending was indeed an aberration as he has not been charged with any other offences in the intervening period. The latter point is a relevant matter with regards to any assessment of his prospects of rehabilitation.
119 So, as is apparent from what I have said already, this is a case in which the court is faced with very serious offending but also with an offender who is able to draw upon a significant number of important and in some cases, weighty matters in mitigation, including but not limited to an early plea entered during the Covid-19 pandemic, previous good character, Verdin’s considerations, delay and exceptional family hardship.
(Short adjournment.)
Gravity of the offending
120 I have already made some observations about this offending and the circumstances in which Mr Yuksek found himself in the lead up to and at the time he offended.
121 I now wish to make the following additional observations about the gravity of this offending.
122 The community has, through Parliament, shown just how intrinsically serious any offence of this type is. The applicable maximum penalty of life imprisonment is, of course, the highest such penalty on the criminal calendar.
123 The quantity of the drugs to which a charge of this nature relates, is an important but not the only or determinative factor in any assessment of the gravity of the offence. In this case, the quantities were very large indeed and many times the applicable statutory thresholds for a large commercial quantity of those drugs, particularly in respect of the MDMA. Whilst the quantity involved must be given due weight in the sentencing calculus, it must not be allowed to swamp all other sentencing considerations.
124 The role played by an offender must also be considered. In this case, it seems clear that Mr Yuksek was not the architect of this drug trafficking syndicate. He did not finance it or stand to reap any of the profits made by the sale of any drugs. There were other members of the syndicate who were more involved than he was and who could be viewed as being higher up in the hierarchy. He played no role in the sourcing, preparation or sale of any drugs. His participation in this offence was limited to acting as a storeman for the syndicate, by allowing his property to be used for the storage of large amounts of methylamphetamine and MDMA. And, that involvement, as charged, relates to a single date rather than on a between dates basis.
125 That said, it must also be noted that the role he played was nonetheless vital to the success of this criminal syndicate’s operations and had the effect of insulating and protecting other syndicate members who were higher up in the hierarchy. In exchange for a financial reward, he assumed a greater level of risk of detection himself but also provided a measure of insurance to other members by distancing them from the drug preparation side of things and from the drugs themselves. Without people such as Mr Yuksek being prepared to take on such a role, with all of the attendant risks, drug syndicates could not operate as they do.
126 It is not clear to me exactly how it was that Mr Yuksek knew any other members of the syndicate, or at least Mr Natale with whom he was seen to meet on a number of occasions, but common sense and logic would suggest that he must have had a close connection to one or more members and to have been trusted without question in order for him to be given the opportunity to play the role that he did.
127 Whilst I cannot be satisfied that Mr Yuksek was aware of the precise quantities of the methylamphetamine and MDMA that were present at his property when police attended, I am satisfied that he was at least aware that there were significant quantities involved given that he was aware of the significance of the garage and must have had a pretty good idea about the nature of the drug syndicate that he had chosen to become involved with.
Standard sentence offence
128 As agreed by both parties, the offence of trafficking in a large commercial quantity of a drug of dependence is a standard sentence offence. The standard sentence is 16 years’ imprisonment.
129 As is made clear by s.5A of the Sentencing Act 1991, the period specified as the standard sentence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
130 Section 5B(2)(a) obliges the court to take the standard sentence into account as one of the factors relevant to sentence and, by way of reinforcement, s.5(2), in its amended form, states that the standard sentence is a matter to which the sentencing court must have regard when imposing sentence.[9]
[9] Specifically, s.5(2)(ab).
131 But as the Court of Appeal made clear in Brown,[10] sub-s 5B(3) expresses the legislature’s clear intention that the obligation to take the standard sentence into account should not otherwise affect the sentencing discretion. It is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty. It does not affect the established ‘instinctive synthesis’ approach to sentencing and does not require or permit ‘two-stage sentencing’. And, it does not otherwise affect the matters which the court may, or must, take into account in sentencing.
[10] (2019) 59 VR 462; [2019] VSCA 286. See also Quah v The Queen [2021] VSCA 164, at [20]-[21] (The Court).
132 As has also been made clear in Brown and a number of subsequent cases, the standard sentence provisions do not require or permit a sentencing court to compare the seriousness of the subject offence with the hypothetical ‘middle of the range’ offence.
133 Further, when fixing a non-parole period in respect of such a standard sentence offence, the court must not fix a non-parole period that is less than 60% of the head sentence unless satisfied that it is in the interests of justice not to do so.
134 And, the court must not have regard to sentences imposed in other cases unless they involve standard sentence offences.
Relevant sentencing principles
135 Given the nature and seriousness of this offending, the sentencing principles of general deterrence and denunciation are weighty considerations even allowing for the ameliorating effects that the application of Verdin’s case entails.
136 Specific deterrence also has some role to play notwithstanding the salutary effect that this prosecution and sentencing will likely have on Mr Yuksek and even allowing for some modest reduction in its significance on account of the application of Verdin’s case.
137 The fact remains that Mr Yuksek has not yet sought or received the necessary treatment and counselling in relation to a number of issues that contributed to his commission of this offence, including his depression, his problems with his substance and alcohol abuse, and with gambling. Mr Newton notes that
Mr Yuksek’s alcohol-use disorder remains problematic and is of a moderate level of severity. It is certainly not in remission at this stage, unlike his substance-use disorder. As Mr Newton observes, Mr Yuksek remains at risk for ongoing depressive symptoms if he does not receive appropriate treatment. Similarly, his poor insight into his conditions and the absence of ongoing treatment leave him at elevated risk for relapse to substance use (with all the associated adverse comorbidities that would accompany this) and for continued problem gambling.
138 Those observations and considerations are relevant not just to gauging the need for some component of personal deterrence in any sentence imposed, but also to any assessment of Mr Yuksek’s prospects of rehabilitation.
139 There are many matters that must be considered in this case in order to reach an informed decision as to Mr Yuksek’s future prospects. I won’t mention all of them now, but they include the following. On a positive note, there is his age and lack of any other criminal involvement, his plea and remorse, the extent to which he has already been punished and deterred by being prosecuted and remanded for this matter, his very sound work history, and the ongoing support from his family. However, there is also the fact that he has not yet benefited from any counselling or treatment in any of the key areas of concern identified by Mr Newton, and he has poor insight into his conditions. Whilst it cannot be said that there is no or even a minimal chance of him reoffending, I consider such a risk to be relatively low. Doing the best that I can on the available material, I have concluded that Mr Yuksek’s prospects, while somewhat guarded, are good.
140 Mr Yuksek must be justly punished for his criminal conduct. Individualised justice is what is called for and what is just must be informed by the circumstances of the offending and of Mr Yuksek personally, as well as by the matters in mitigation and the applicable sentencing principles. On any view, given the nature and seriousness of this offending, a substantial sentence of imprisonment is warranted.
Submissions on penalty
141 In their submissions on penalty, defence counsel acknowledged the seriousness of the offending in this case but also sought to emphasise the combination of mitigating factors that Mr Yuksek could rely on. Whilst accepting that this court had no alternative but to impose a sentence of imprisonment comprising a head sentence with a non-parole period for this offence, they urged the court to fix a sentence that was not crushing and that included a disparate non-parole period that was less than 60% of the head sentence as it was in the interests of justice to depart from the statutory embargo.
142 As part of their submissions, defence counsel drew the court’s attention to the few cases that could be found in which the Court of Appeal had dealt with appeals involving an offender who had been sentenced for trafficking in a drug of dependence that was not less than a large commercial quantity and which qualified as a standard sentence offence.[11] Such an approach was entirely appropriate in light of the statutory prohibition on a court having regard to sentences imposed in other cases which did not involve a standard sentence offence.
[11] Those cases were Quah v The Queen [2021] VSCA 164; DPP v Kumas [2021] VSCA 215; Dimovski v The Queen [2022] VSCA 6.
143 I also note that in one of the cases to which I was referred, that of Kumas,[12] the Court of Appeal was referred by the Director to six cases concerning large commercial quantity trafficking decided after the enactment of the standard sentencing regime[13], all of which involved sentencing decisions of this court.[14] One of those decisions, Quah, was later upheld on appeal to the Court of Appeal. As the Court of Appeal noted in Kumas, the decisions to which it had been referred revealed that the sentences imposed ranged from 8 to 15 years.[15]
[12] DPP v Kumas [2021] VSCA 215.
[13] Ibid at [45].
[14] Those cases were DPP v Quah [2019] VCC 1158; DPP v Lamberti [2019] VCC 1498; DPP v Kha [2019] VCC 1682; DPP v Nguyen [2019] VCC 1815; DPP v Al Janabe [2019] VCC 1313; and DPP v Dong [2020] VCC 298.
[15] A break down of the sentences for each case can be found at footnote 31 on page 16 of the Court’s judgement in Kumas.
144 For their part, counsel who appeared on behalf of the prosecution submitted that the sheer volume of the two drugs the subject of this charge was a significant factor to be taken into account when determining the appropriate sentence. It was, they said, very serious offending. And, general deterrence was a very important sentencing consideration in the circumstances. By necessary inference, the prosecution were submitting that any sentence imposed for this offence was required to be substantial.
Analysis
145 In my view, this is a somewhat unusual case in the sense that it combines very serious offending with a powerful combination of mitigating features that call for a significant tempering of the punishment to be imposed.
146 Of course, a sentencing court must not allow matters personal to an offender or his family to distract it from a proper assessment of the objective gravity of the offending or to swamp other important matters and principles to which regard must be had, but in an appropriate case, a considerable measure of leniency, indeed mercy, may be required. I consider this to be such a case.
147 I have had regard to the important statements of principle which the Court of Appeal has made regarding the seriousness with which offences of trafficking in a large commercial quantity of a drug of dependence must be viewed , including those made in Gregory[16] and Rahmani.[17]
[16] Gregory (a pseudonym) v The Queen [2017] VSCA 151.
[17] Rahmani v The Queen [2021] VSCA 51.
148 I have also had regard to the other cases to which I have referred in attempting to have regard to any comparable cases. Of course there are significant limits to such an exercise and, unsurprisingly, none of those cases were identical or on all fours to the present. As between this case and others, the circumstances of the offending and of the offender varied and cut both ways.
149 Ultimately, of course, I must engage in a process of individualised justice in which the focus must be on the particular circumstances of this offence and this offender.
150 Having undertaken that task, and after carefully considering, balancing and weighing all of the relevant considerations raised by this case, I have determined to impose the following sentence.
Sentence
151 Mr Yuksek, on the charge of trafficking in a large commercial quantity of a drug of dependence, you are convicted and sentenced to a term of 12 years’ imprisonment.
152 In respect of that head sentence, and in the rather unusual circumstances of this case, I consider it appropriate to fix a relatively low and disparate non-parole period. Accordingly, I fix a period of 7 years before which you are to be eligible for release on parole.
153 In fixing that non-parole period, I have accorded some additional weight to the matters in mitigation. You have no criminal history whatsoever, you have pleaded guilty, you will have to serve at least part of your sentence during the Covid-19 pandemic, and for other reasons, including your separation from your family, you will find the service of this sentence quite onerous. And, significantly, your family will suffer as a result of your extended incarceration. It is essentially for those reasons that I have decided to fix the non-parole period that I have, and to have determined that it is in the interests of justice to depart from the legislative embargo by fixing a non-parole period that is less than 60% of the head sentence, albeit one that is not much below 60%.
Pre-sentence Detention
154 Pursuant to s18 of the Sentencing Act 1991, I declare that Mr Yuksek has served a total of 406 days pre-sentence detention, not including today’s date, in respect of the sentence that I have imposed on him today. I order that such period is to be reckoned as already served under that sentence, and I further order that the declaration and its details be entered in the records of this court.
Section 6AAA indication
155 Pursuant to s6AAA of the Sentencing Act 1991, I give the following indication.
156
But for his plea of guilty to the charge on this indictment, Mr Yuksek would have been sentenced to a term of 16 years with a non-parole period of
11 years for that offence.
Ancillary orders
157 Pursuant to s.78(1) of the Confiscation Act 1997, I grant the disposal order sought by the prosecution in the terms sought. I note that their application for such an order was not opposed by the defence.
Section 89DI Declaration
158 As section 89DI(1) of the Sentencing Act 1991 states, on the conviction of a person by a court for a serious drug offence, the court must make an order declaring the person to be a serious drug offender.
159 The term “serious drug offender” used in that section has the same meaning as it does in s.3(1) of the Confiscation Act 1997. That definition section makes specific reference to an offence under s.71 of the Drugs, Poisons and Controlled Substances Act 1986, namely trafficking in a drug of dependence in not less than a large commercial quantity.
160 Accordingly, it is appropriate, indeed mandatory to make such a declaration in the circumstances of this case.
161 In that event, I declare that as a result of being convicted of the offence of trafficking in a drug of dependence in not less than a large commercial quantity alleged in charge 1 of indictment K10556269, Mr Yuksek is a serious drug offender.
162 There is an important difference between being declared a serious drug offender and being sentenced as a serious drug offender. I make clear that this is a declaration made after sentencing. Mr Yuksek has not been sentenced as a serious drug offender
Other matters
163 Ms Marcs, is there anything that you wish to raise in respect of the sentence or reasons for sentence at this stage?
164 MS MARCS: No, your Honour.
165 HIS HONOUR: Mr Pickering, anything to raise from the prosecution perspective?
166 MR PICKERING: No, your Honour.
167 HIS HONOUR: Ms Marcs, are there any matters by way of custody management issues that ought be included in the relevant documentation that will accompany your client into custody?
168 MS MARCS: Yes, there are, Your Honour. I should have obtained updated instructions before now - - -
169 HIS HONOUR: I was about to go on and ask you whether you wish to take the opportunity to briefly confer with your client whilst he is still in the dock before he is taken down to the cells. It might be an appropriate time for you to do that in any event, including in respect of the earlier matter I have just asked you about.
170 MS MARCS: I would be grateful, Your Honour.
171 HIS HONOUR: I think it is appropriate that I remain on the Bench whilst that takes place but do not feel pressed for time because of that.
172 MS MARCS: Thank you. Thank you, Your Honour, I am grateful to the court. I don't want to delay the court any longer but the current listed medications, I don't have the precise - - -
173 HIS HONOUR: They can be forwarded through to my associate can't they and I will ensure through her that they are provided to the custodial authorities.
174 MS MARCS: I would be grateful, they are just blood pressure, there's a Nexium cholesterol tablets and (indistinct words). Apart from those currently (indistinct words) no other custody management issues.
175 HIS HONOUR: All right, hopefully that can be forwarded through pretty quickly and we will attend to that.
176 Just before I ask the prison officers to take Mr Yuksek downstairs, can I firstly thank all counsel and I include senior counsel for each of the parties who are not present for their assistance during the course of this matter and I thank each of you, Mr Pickering and Ms Marcs, for accommodating the change in date of this sentence that I had to implement because of other commitments. Thank you.
177 Take Mr Yuksek downstairs, thank you. Adjourn the court please Mr Tipstaff.
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