Hassan Ali Allami v Director of Public Prosecutions (Cth)
[2021] VSCA 42
•5 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0163
| HASSAN ALI ALLAMI | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Respondent |
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| JUDGES: | NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 February 2021 |
| DATE OF JUDGMENT: | 5 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 42 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1114 (Judge Gucciardo) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Application for leave to appeal against sentence – Two charges of importing a marketable quantity of a border controlled drug – One charge of importing a border controlled drug – Three summary charges of committing indictable offence whilst on bail – Sentenced to 3 years and 10 months with a non-parole period of 22 months – Whether sentence manifestly excessive – Importance of deterrence – Sentence within range – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Delorenzo, Solicitor | Martin Middleton Oates Lawyers |
| For the Respondent | Ms K Breckweg | Ms S N McNaughton SC, Commonwealth Director of Public Prosecutions |
NIALL JA:
The applicant pleaded guilty in the County Court to two charges of importing a marketable quantity of a border controlled drug, one charge of importing a border controlled drug and three summary charges of having committed indictable offences whilst on bail.
On 24 July 2020, the applicant was sentenced as follows:
Charge
Offence
Maximum penalty
Sentence
Cumulation
1
Import a marketable quantity of a border controlled drug[1]
25 years
3 years
Base
2
Import a marketable quantity of a border controlled drug[2]
25 years
18 months
7 months
3
Import a border controlled drug[3]
2 years
9 months
3 months
Summary offences 10–12
Commit indictable offence whilst on bail x 3[4]
3 months
1 month per charge
Concurrent
Total effective sentence:
3 years and 10 months’ imprisonment
Non-parole period:
22 months’ imprisonment
Pre-sentence detention:
27 days
Section 6AAA declaration:
5 years’ imprisonment with a non-parole period of 3 years, 6 months
[1]Criminal Code (Cth) s 307.2(1).
[2]Ibid.
[3]Ibid s 307.4(1).
[4]Bail Act 1977 s 30B.
The applicant seeks leave to appeal on the ground that the sentence is manifestly excessive.
Summary of offending
Between August and September 2018, the applicant imported four consignments which variously contained MDMA, methamphetamine and cocaine. Charge 1 was a rolled up charge that related to the importation of MDMA (159 g) and covered three of the consignments. Charge 2 related to methamphetamine (10 g) and charge 3 cocaine (1.4 g).
On 7 August 2018, officers intercepted a mail article from Italy, addressed to the applicant at his home address. It contained a DVD case inside of which were two heat sealed bags containing 57.6 g of crystals, 43 g of pure MDMA (charge 1) and 14.6 g of crystals, 10 g of pure methamphetamine (charge 2).
On 13 September 2018, officers intercepted a mail article from Germany, addressed to the applicant at his parents’ address. It contained pink tablets with a gross weight of 149.9 g, 55 g of pure MDMA (charge 1).
On 28 September 2018, officers intercepted another mail article from Italy, addressed to the applicant at his home address. It contained a radio speaker inside of which was a black sealed bag containing two small bags of crystalline substance and tablets which weighed a total of 94.1 g, 61 g of pure MDMA (charge 1).
On 19 September 2018, a mail article from Slovenia was intercepted at a post office. This was due to a mail stop which was placed on items addressed to the applicant following the interception of items the subject of charges 1 and 2. It was addressed to a false name at the applicant’s home address. It contained a sealed package inside of which was a zip-lock bag, containing cocaine. The gross weight of the powder was 2 g, 1.4 g of pure cocaine (charge 3).
On 3 October 2018, police executed a search warrant at the applicant’s premises. The applicant was arrested and a number of items were seized, including two iPhones. One of the phones contained a platform which could be used to purchase border controlled drugs from websites on the dark web. It also contained an email confirming that the applicant had set up a block chain email account which could be used to transfer crypto currency, such as Bitcoin, on the dark web; and conversations on an encrypted messaging application discussing the importation of a border controlled drug and its interception.
The applicant was interviewed. Initially, the applicant denied expecting any deliveries or ordering drugs. Later, the applicant admitted using a browser which permitted anonymous searching to access illegal items on the dark web using Bitcoin. The applicant said that he did not recall buying methamphetamine; only diazepam, MDMA and pills. He explained that the time between order and arrival was around 10 days. Initially, the applicant said that he had not heard of the false name to which the item from Slovenia was shipped, however, he later indicated that the name was ‘misleading information by [him]’ used to import cocaine. The applicant said that he imported the drugs to give to someone to clear a debt.
Reasons for sentence
Charges 1 and 2 concerned the importation of a marketable quantity of MDMA and methamphetamine, respectively. The judge noted that in relation to the former, the total pure weight was 159 g, being 318 times the prescribed minimum to constitute a marketable quantity. The weight of pure methamphetamine the subject of charge 2 to was 10 g, which was five times the marketable quantity. In respect of charge 3, the applicant imported 1.4 g of pure cocaine, 70 per cent of a marketable quantity.[5]
[5]DPP v Allami [2020] VCC 1114, [7]–[8] (‘Reasons’).
The judge noted that deterrence, both general and specific, were a primary concern in sentencing for drug offences of this kind.[6] He noted the quantity of drugs imported, the serious social consequences that flow from the dissemination of the drugs into the community, the difficulty in detecting importations, and the use of a false name, covert websites and digital currency to complete the transactions, as relevant to the assessment of the gravity of the offending.[7]
[6]Ibid [9].
[7]Ibid.
The judge noted the relevance of personal deterrence given that the applicant was on bail and on a community corrections order (‘CCO’) at the time of the offending, and the plan was conceived and executed by him alone, for personal financial gain.[8]
[8]Ibid [10].
The judge observed that given the importance of deterrence, factors that are personal to the offender are given less weight than might otherwise be given.[9] However, the judge set out in some detail the personal circumstances of the applicant.
[9]Ibid [11].
The applicant was born in Iran and arrived in Australia with his mother in 2001 when he was four years old. After 18 months on Christmas Island the applicant and his parents settled in Mildura. He has resided with his parents for the majority of his life. Both of his parents have experienced mental health issues and he has siblings with disabilities.[10] The applicant left school in year eight and began working on a farm with his father until he was 18.[11]
[10]Ibid [21].
[11]Ibid [22].
The judge noted that the applicant had a history of drug use. The applicant first used cannabis at age 14 and progressed to amphetamine and MDMA use when he was 16.[12]
[12]Ibid.
The judge noted that the plea was not made at the earliest possible time and that there had been a committal and subsequent hearings before the matter resolved.[13]
[13]Ibid [13].
The judge noted the applicant’s criminal history. Relevantly, in August 2018, the applicant was convicted, fined and placed on a CCO for a number of offences including reckless affray, unlawful assault, recklessly cause injury, intentionally cause injury and assault in company. The CCO was for a term of 12 months commencing on 8 August 2018.[14]
[14]Ibid [15].
On 1 August 2019, the applicant was convicted on a charge of recklessly cause injury and unlawful assault. He was placed on another CCO for a term of 12 months commencing on 1 August 2019.[15]
[15]Ibid [16].
At the time he first committed the current drug offences he had one day to run on his first CCO and he was on bail for the charges that culminated in his second CCO imposed on 1 August 2019. It was this latter aspect that led to the summary charges of offending whilst on bail.
Reflecting on the applicant’s criminal history, the judge said that by the time the applicant was 21 he had engaged in ‘significant bad behaviour’ which the judge attributed to drug use.[16] The judge noted that while the applicant was on bail he had completed an assessment for drug treatment and counselling, and had obtained some psychological support.[17] In the applicant’s favour, the judge noted that he had become employed as a casual employee from early July 2019 and his work ethic was attested to in a reference from his production manager.[18] There was evidence before the judge, which he accepted, that the applicant had been abstinent from alcohol and other drug use since late 2018.[19]
[16]Ibid.
[17]Ibid [18].
[18]Ibid [19].
[19]Ibid [19]–[20].
The applicant relied on a report of forensic psychologist, Mr Jeffrey Cummins, dated 19 May 2020 (‘Cummins report’). From the time the applicant was about 18 he was in a relationship with his current partner. He told Mr Cummins that his parents did not know about this relationship and his partner did not share the same religious faith. The applicant left Mildura where he was living with his parents, partly as a result of his drug use, of which his family and partner were not aware. He went to Melbourne for a week and then to Canberra where he stayed for a number of months, sleeping in his car. His drug use escalated. He told Mr Cummins that he returned to Mildura quite frequently to see his partner. She became pregnant and he returned to Mildura and lived with her.
Mr Cummins noted that after being released on bail the applicant has engaged in full-time employment, completed a comprehensive anger management program, undertaken drug and alcohol counselling and attended two psychological consultations. He has told his partner, two older siblings and parents about his previous dependency on illicit drugs and reported having their ongoing support.
Mr Cummins expressed an opinion that the applicant’s erratic behaviour at the time of the offending primarily reflected illicit drug use and drug dependency and was perhaps also reflective of an anger management problem. Mr Cummins observed that the applicant’s rehabilitation has been self-managed and expressed concern that further time in custody would cause him to spend time with prisoners who are not as committed to their own rehabilitation, including drug rehabilitation.
The judge took the opinion of Mr Cummins into account, noting that if incarceration was to unravel the applicant’s rehabilitation this would be to the detriment of the applicant, his family and the community.[20] Nevertheless, the judge observed that the gravity of the offending outweighed the applicant’s personal circumstances.[21]
[20]Ibid [26].
[21]Ibid [27].
Proposed ground of appeal and applicant’s submissions
If granted leave, the applicant would appeal his sentence on a single proposed ground — that the total effective sentence imposed was manifestly excessive in all of the circumstances and particularly in light of the following factors.
(a) the applicant’s admissions, remorse and plea of guilty
The applicant points to the admissions he made upon his arrest and interview as well as his remorse, which he submits is reflected in the Cummins report and in his letter to the Court.
(b) the applicant’s youth
The applicant submits that in imposing the sentence he did, the judge gave insufficient weight to the applicant’s youth — 21 at the time of the offending, 22 at the time of the plea and 23 at the time of sentencing — and the principles in R v Mills,[22] in circumstances where the applicant had never served a term of imprisonment.
[22][1998] 4 VR 235.
(c) the delay and the applicant’s prospects of rehabilitation
The applicant submits that there is a clear corollary between his drug use and the offending. He says that he made significant progress towards rehabilitation between being released onto bail and sentencing. In particular, the applicant relies on evidence tendered on the plea, including the Cummins report, in which the author agreed with the applicant’s assessment of his rehabilitation as being ‘significantly advanced’, and also notes that the judge considered his prospects of rehabilitation to be ‘good’.[23] He relies on R v McKee,[24] in which Buchanan JA observed that ‘a sentencing judge may have regard to the circumstances which led to an addiction that caused the commission of the offence and to whether the addiction has continued or is being treated in deciding upon a sentence appropriately tailored to the personal circumstances of the offender.’[25]
[23]Reasons [20].
[24][2003] VSCA 16.
[25]Ibid [13].
(d) the objective seriousness of the offending
In respect of charge 1, the applicant notes that the applicant did not intend to import the total quantity of MDMA as some of the importations were re-ships. The purpose of importation was to settle a debt and, in part, for the applicant’s personal use. Therefore, the supply chain was small and the applicant’s level of enrichment was intended to be relatively modest, which reduced the applicant’s moral culpability. The applicant submits that charge 1 is a relatively low level example of what is a serious offence.
The applicant submits that charge 2 falls at the lower end of drug importation matters and charge 3 at the very low end of seriousness, noting the quantity of cocaine imported. At the hearing, counsel noted that based on the quantity of cocaine imported, it was unlikely that the applicant intended to sell it and therefore the importation was unlikely to be for the purpose of settling a debt.
The applicant submits that the judge characterised the offending as ‘serious’ without distinguishing between the charges and the sentences imposed are excessive.
(e) current sentencing practices for offences of this type
In written submissions, the applicant drew the Court’s attention to two County Court sentences by way of comparison.
In Director of Public Prosecutions vRagauskas,[26] the accused ordered a number of illicit substances online, including 1.3 g of cocaine, 3.5 g of cocaine, 985ml of GBL and 3 g of MDMA. Text messages on the accused’s phone revealed that he had been trafficking testosterone. Relevantly, the accused pleaded guilty to three charges of importing a marketable quantity of a border controlled drug. The accused was 25 years old at the time of sentencing, made various admissions, was remorseful and had the support of his family. In relation to the three importations, he was sentenced to a total effective sentence of 20 months’ imprisonment with release on recognisance (‘RRO’) with surety of $1,000 and 12 months of good behaviour.
[26][2016] VCC 1232.
In Director of Public Prosecutions v Chea,[27] over the course of 16 months, 17 international post consignments were intercepted. All packages contained small quantities of a variety of border controlled substances, including MDMA, cocaine, LSD and amphetamine. Relevantly, the accused pleaded guilty to one charge of importing a marketable quantity of a border controlled drug. The accused was 21 years old at the time of sentencing, remorseful and had exceptional prospects of rehabilitation. In relation to the importation, the accused was sentenced to 18 months’ imprisonment, released on a $1,000 RRO to be of good behaviour for 18 months.
[27][2016] VCC 1429.
Following the hearing, with the Court’s leave, the applicant referred to a few additional sentences imposed in the County Court for similar offending.[28]
[28]DPP v Evers [2017] VCC 1226; DPP v Gould [2016] VCC 322; DPP v Mathuran [2020] VCC 1121.
Respondent’s submissions
The respondent submits that the application for leave should be refused because there is no reasonable prospect that this Court would impose a lesser sentence.[29] The respondent says that the judge took into account and gave adequate weight to the various mitigating factors, which is evident from the reasons. The sentence imposed was within range.
[29]Criminal Procedure Act 2009 s 280(1).
The respondent relied on a table setting out what were said to be six comparative intermediate appellate sentences that demonstrated the application of the relevant principles and which could be used to illustrate the possible range of sentences available.
In Buttigieg v The Queen,[30] the Full Court of the Supreme Court of South Australia upheld an argument that a sentence of 2 years, 11 months and 3 weeks, released on a $5,000 RRO to be of good behaviour for 2 years and 6 months, for importation of 134.5 g of pure cocaine (67 times the marketable quantity), was manifestly inadequate. It declined to resentence the applicant on the basis of the residual discretion.
[30](2020) 352 FLR 170; [2020] SASCFC 38.
In Dunning v The Queen,[31] the Tasmanian Court of Criminal Appeal upheld a sentence of 6 years’ imprisonment with a non-parole period of 3 years and 6 months for three charges of attempting to import a marketable quantity of a border controlled drug. The drugs were 398 g of pure amphetamine, 51 tablets (9 g pure) of MDMA and 2.7 g of pure cocaine.
[31][2018] TASCCA 21.
Consideration
In order to make out a ground of manifest excess, the applicant must establish that the sentence imposed was ‘wholly outside the range of sentencing options available’ to the judge in the sound exercise of his sentencing discretion.[32] It must be ‘plainly unjust’ or ‘manifestly wrong’.[33]
[32]DPP v Karazisis (2010) 31 VR 634, 662–3 [127]–[128]; [2010] VSCA 350 (Ashley, Redlich and Weinberg JJA).
[33]Dinsdale v The Queen (2000) 202 CLR 321, 329 [22]; [2000] HCA 54 (Gaudron and Gummow JJ).
In my opinion, the challenge to the individual sentences and the total effective sentence must fail. Dealing first with charge 1, the amount imported, which is an important but not controlling aspect of sentence, was a significant multiple of the minimum marketable quantity for MDMA. It carried a maximum penalty of 25 years’ imprisonment. Charge 1 was a rolled up charge and covered three separate occasions on which the applicant used the dark web and crypto currency to effect the transactions.
An examination of the decisions referred to by the respondent demonstrates that serious drug offences regularly result in terms of imprisonment. Further, as a matter of principle, given the importance of general deterrence, the individual circumstances of the offender are often given less weight than they might otherwise attract. The nature of this offending, which is difficult to detect, undertaken for financial gain and results in the introduction into the community of drugs that produce substantial harm, requires a just but commensurate response from the courts.
In my opinion, the sentences imposed on charges 1 and 2 were unremarkable and cannot be said to be manifestly excessive. Although the judge paid careful consideration to the individual circumstances of the applicant, he was right to underscore the importance of general deterrence. Further, notwithstanding the more recent positive signs of rehabilitation, the fact that the applicant has a prior criminal history, and committed the offences whilst on bail, meant that specific deterrence was also a matter to be weighed.
Both parties relied on decisions in support of their respective positions. The applicant referred to a number of sentences imposed in the County Court.[34] The respondent is correct in saying that the focus on other cases should be on sentencing principles rather than numerical outcome and it is to decisions of intermediate appellate courts that attention is most usefully given. The important feature of decisions from intermediate appellate courts is not the specific outcome, which is a product of the particular facts in each case, but the recognition of the seriousness of offending of this kind and the emphasis that has been given to deterrence. There is nothing to support the contention that the current sentence imposed on the applicant is discordant with current sentencing practice across the country.[35]
[34]DPP v Ragauskas [2016] VCC 1232; DPP v Chea [2016] VCC 1429; DPP v Evers [2017] VCC 1226; DPP v Gould [2016] VCC 322; DPP v Mathuran [2020] VCC 1121.
[35]R vPham (2015) 256 CLR 550; [2015] HCA 39.
In oral submissions, the applicant focused his attention on the sentence imposed on charge 3. It was submitted that, having regard to the small quantity of cocaine imported, and the factors advanced in mitigation, including the plea of guilty and steps towards rehabilitation, a sentence of 9 months for an offence that carried a maximum term of imprisonment of 2 years was manifestly excessive. He submitted that the small amount of cocaine would not support the inference that it was imported for sale or to discharge a debt. However, that is not the way the plea proceeded and no distinction in this respect was drawn between the three charges. However, plainly, the quantity was less than for the other two drugs.
If the sentence on charge 3 was to be considered in isolation, the argument that the sentence imposed was manifestly excessive would be arguable. However, it was the fourth occasion on which the applicant had imported a border controlled drug and therefore cannot be considered to be a one-off event or conduct that was out of character. Further, the plea was made on the basis that a portion of the drugs, including the cocaine, were imported for personal use and the bulk were to be used to discharge a debt. For those reasons, I am not satisfied that the sentence imposed on charge 3 was manifestly excessive.
Moreover, only 3 months of the sentence imposed on charge 3 were ordered to be cumulative on the base sentence. Even if I were persuaded that there was some arguable error in relation to the sentence imposed on charge 3, I am satisfied that having regard to the use of the dark web and crypto currency, the amount of drugs imported, particularly under charge 1, and the importance of general deterrence for offending of this kind, there is no reasonable prospect that this Court would reduce the total effective sentence despite there being any error in the sentence imposed. For that additional reason I would refuse leave to appeal.
Conclusion
The application for leave to appeal is refused.
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