Osman v The Queen
[2021] VSCA 176
•18 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0121
| MOHAMMAD OSMAN | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | PRIEST, T FORREST and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 June 2021 |
| DATE OF JUDGMENT: | 18 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 176 |
| JUDGMENT APPEALED FROM: | [2020] VCC 638 (Judge Trapnell) |
---
CRIMINAL LAW – Appeal – Sentence – Guilty plea – Trafficking in a drug of dependence and trafficking in a drug of dependence in a large commercial quantity (heroin and ‘mixed substance’) – Applicant at ‘middle level’ of drug-trafficking syndicate – Total effective sentence of 19 years with 13 years non-parole – Whether error by sentencing judge in finding applicant at ‘moderate’ risk of reoffending – Whether error by sentencing judge in noting prevalence of offending – Whether sentence manifestly excessive – Totality – Total effective sentence required moderation – Appeal allowed – Applicant resentenced to total effective sentence of 16 years, with a non-parole period of 12 years – Gregory v The Queen [2017] VSCA 151, Djordjic v The Queen [2018] VSCA 227, DPP v Condo [2019] VSCA 181 considered.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Grace QC with Ms G Connelly | Valos Black & Associates |
| For the Respondent | Mr N Hutton | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA
EMERTON JA:
The applicant pleaded guilty to two charges of trafficking in a drug of dependence and to two charges of trafficking a drug of dependence in a large commercial quantity. The charges arose from the sale of heroin to undercover police officers on four occasions between 30 October and 15 December 2014.
The applicant’s trafficking in heroin was undertaken pursuant to arrangements with several co-offenders, including Rami Margus, Baset Wahab and Anthony Harris.[1] Margus, Wahab and Harris have each been convicted and sentenced. The trial of a fourth co-accused, Ali Aydin, is still pending, and another man, Ahmed Al-Hamza, was acquitted in the Children’s Court.
[1]A pseudonym.
On 19 May 2020, the applicant was sentenced in the County Court of Victoria as follows:
Charge on Indictment Offence Max Penalty Sentence Cumulation 1 Trafficking in a drug of dependence 15 years 4 years 18 months 2 Trafficking in a drug of dependence 15 years 4 years 18 months 3 Trafficking in a drug of dependence — large commercial quantity Life 11 years Base 4 Trafficking in a drug of dependence — large commercial quantity Life 11 years 5 years Total Effective Sentence: 19 years Non-Parole Period: 13 years Pre-sentence Detention Declared: 1,980 days Section 6AAA Statement: TES 23 years, NPP 17 years Other Relevant Orders:
- Sentenced as a serious drug offender on charge 4;
- Declared to be a serious drug offender pursuant to s 89DI of the Sentencing Act 1991 in respect of charges 3 and 4; and
- Orders of disposal of property and forensic sample.
The sentences imposed on the co-offenders Wahab, Margus and Harris were as follows:
WAHAB
Charge on Indictment Offence Max Penalty Sentence Cumulation 1 Trafficking in a drug of dependence not less than a large commercial quantity between Life 11 years NA Total Effective Sentence: 11 years Non-Parole Period: 6 years Pre-sentence Detention Declared: 1,429 days Section 6AAA Statement: TES 15 years, NPP 10 years Other Relevant Orders: Sentenced as a serious drug offender
MARGUS
Charge on Indictment Offence Max Penalty Sentence Cumulation 1 Trafficking in a drug of dependence 15 years 2 years 6 months 10 months 2 Trafficking in a drug of dependence 15 years 2 years 6 months 10 months 3 Trafficking in a drug of dependence 15 years 20 months 10 months 4 Trafficking in a drug of dependence not less than a large commercial quantity Life 7 years Base 5 Trafficking in a drug of dependence not less than a commercial quantity Life 6 years 2 years Total Effective Sentence: 13 years 6 months (including separate indictment) Non-Parole Period: 7 years Pre-sentence Detention Declared: 1,884 days Section 6AAA Statement: TES 18 years NPP 11 years Other Relevant Orders: Declared a serious drug offender on charge 4, sentenced as a serious drug offender on charge 5 HARRIS
Charge on Indictment Offence Max Penalty Sentence Cumulation 1 Trafficking in a drug of dependence 15 years 4 years 1 year 2 Trafficking in a drug of dependence not less than a large commercial quantity Life 11 years Base 1[2] Possess explosive substance (fireworks) without lawful excuse 5 years $500 fine NA Total Effective Sentence: 12 years Non-Parole Period: 8 years Pre-sentence Detention Declared: 1,520 days Section 6AAA Statement: $1000 on the plea indictment offence [2]Plea indictment.
Harris pleaded not guilty to the trafficking charges and was sentenced following conviction at trial.
Grounds of appeal
By notice dated 17 June 2020, the applicant raised the following grounds of appeal against sentence:
Ground 1:The learned sentencing judge erred in relying on ‘sentencing uplift practice’ to determine, or at least inform, his assessment of the seriousness of the applicant’s offending and to sentence the applicant.
Ground 2:The learned sentencing judge erred in finding that the applicant was a moderate risk of reoffending.
Ground 3:The learned sentencing judge erred in sentencing on charges 3 and 4:
(a) On the basis that the offending was ‘prevalent’;
(b)In failing to accord the applicant procedural fairness by putting him on notice that His Honour intended to sentence on the basis his offending was prevalent;
(c)In according greater weight to general deterrence on account of the finding of prevalence.
Ground 4:The sentences imposed on charges 3 and 4, the orders for cumulation, the total effective sentence and non-parole period are manifestly excessive in all the circumstances.
Ground 5:It was not reasonably open in all the circumstances to impose on the applicant:
(a) When compared to Wahab:
(i)The same sentence on charges 3 and 4 as WAHAB received for his charge 1;
(ii)5 years cumulation in respect of charge 4.
(b) When compared to Margus:
(i) 1.5 years more on charges 1 and 2;
(ii)8 months more cumulation on charges 1 and 2; and
(iii) 4 years more on charge 4.
(c)When compared with the co-accused ‘Harris’, the same sentences on charges 1 and 4, and 6 months less cumulation on charge 1.
The applicant abandoned ground 1 prior to the hearing of the appeal.
Circumstances of the offending
The applicant was charged in relation to four transactions involving the sale of heroin (and ‘mixed substance’, or ‘heroin mixed’) to police operatives over a period of almost seven weeks between 30 October 2014 and 15 December 2014.
The trafficking came to light as a result of an investigation by a joint task force established between Victoria Police, the Australian Federal Police, the Australian Customs and Border Protection Service and the Australian Crime Commission into the trafficking of large commercial quantities of heroin. The investigation involved intercepts of phone conversations, physical surveillance and the use of undercover police officers posing as buyers of heroin.
The roles of the applicant and co-offenders were identified in the amended summary of prosecution opening dated 13 February 2019, which was accepted in general terms by the sentencing judge. According to the summary, Margus acted as the drug and cash courier; Wahab acted as the storeman and packer, storing large quantities of drugs in the premises of his motor mechanic business (Baset Autotech) and under his bed in his parents’ home; Harris was a transport supervisor; and Al-Hamza was an ‘odd jobs man’. It is alleged that Aydin was the first point of contact for prospective purchasers and facilitated the drug deals. While there was a dispute on the plea as to whether the applicant was the person referred to as ‘Boss’ by one of the co-offenders, it was accepted that the applicant’s role was akin to that of a ‘production manager’ and that he, like Aydin, was effectively a ‘middle manager’ in the trafficking operation.
Charge 1
The offending the subject of charge 1 concerned a transaction on 30 October 2014, when Aydin and Margus supplied 499.5 grams of heroin mixed to police covert operatives in exchange for $110,000 in cash.
The applicant’s involvement in that transaction commenced several days earlier, on 27 October 2014, when he exchanged a series of coded text messages with Aydin. The following day, 28 October 2014, Aydin met with police covert operative ‘Tony’ regarding the sale of heroin. Later that evening, Aydin met with the applicant at a BP service station to discuss the transaction. Aydin cancelled the transaction that was to occur that night on the applicant’s instructions.
On 30 October 2014, Aydin and Tony met again, and Tony placed an order for heroin. Aydin sent a message asking to meet the applicant, but the meeting did not take place. The applicant and Aydin then exchanged coded text messages for around an hour and a half.
The sale of the heroin occurred later that evening near the Al Diwan restaurant in Campbellfield. Following the transaction, the applicant and Aydin met at the restaurant and discussed the transaction.
Charge 2
The offending relating to charge 2 involved a drug transaction which occurred on 19 November 2014, when Margus delivered 498.5 grams of heroin mixed to police covert operatives Tony and ‘Daz’ in exchange for $110,000 in cash. This transaction also took place in the vicinity of the Al Diwan restaurant.
The applicant’s involvement in the charge 2 transaction commenced around 7 November 2014, when he contacted Harris and arranged to meet at Harris’ apartment. ‘Tony’ had approached Aydin the day before to purchase 500 grams of heroin. This transaction was delayed for a number of days because Aydin suspected that Tony was a police ‘plant’.
On the day of the transaction, 19 November 2014, the applicant contacted Harris to arrange for Margus to courier the heroin to the meeting location at the Al Diwan restaurant. After the transaction took place, the applicant met with Aydin in Epping to receive the cash.
Charge 3
Charge 3 involved a drug transaction which occurred on 9 December 2014, when 1000.4 grams of heroin mixed was supplied to police covert operatives ‘Vili’ and Daz in exchange for $220,000.
The applicant’s involvement in the charge 3 transaction commenced a week earlier, on 2 December 2014, when he received a text message from Aydin asking him to check a phone that was not being intercepted by police. The applicant did so a number of times in the week leading up to the transaction. Aydin had met with police operative Vili and agreed to supply the heroin. At 4:05 pm on the day of the transaction, the applicant and Aydin met at Epping Plaza and they spoke for around 30 minutes. The applicant then attended Baset Autotech and left about five minutes later. He tried to contact Harris, unsuccessfully, and then called Wahab and asked him to bring a kilogram of heroin to him.
In the meantime, Aydin had received $220,000 cash from Vili in a carpark in Thomastown. Aydin told Vili that his ‘Boss’ would be bringing the heroin to a nearby exchange location because his ‘driver’ had been involved in a car accident in Geelong.[3] At 7:00 pm, the applicant and Wahab met at Lalor Plaza Shopping Centre and the applicant collected the heroin. After receiving a text from the ‘Boss’, Aydin drove with Vili to Thomastown, where the applicant gave him a Nike shoe box containing the heroin. Aydin delivered the heroin to Daz. Around 15 minutes later, Aydin met the applicant and handed $220,000 in cash to him. The applicant then drove to Chadstone Shopping Centre where he met with a person named ‘Danesh’, and gave him a portion of the cash. It was accepted that Danesh processed money derived from the drug transactions on behalf of the syndicate.
[3]The applicant disputed that Aydin was referring to him in this meeting.
Charge 4
The offending in relation to charge 4 concerned a drug transaction on 15 December 2014 involving 1001.6 grams of heroin mixed.
On 15 December 2014, Vili placed an order with Aydin for one kilogram of heroin mixed for $220,000. Aydin then messaged the applicant to check the un-intercepted mobile phone and the pair met around 40 minutes later in Roxburgh Park to arrange the details of the proposed transaction. The applicant then attended Baset Autotech, and later contacted Harris to arrange a courier for the heroin. At 6:00 pm, the applicant met Harris at the Al Diwan Restaurant to make arrangements for the transaction. After that meeting, Harris called Al-Hamza and arranged for him to assist in the transaction.
About an hour later, the applicant returned to the restaurant and met with Aydin who had been talking to Vili to arrange the transaction for 8:00 pm. A short time later, Harris and Al-Hamza arrived with the heroin in a black plastic bag. Al-Hamza placed the bag in Aydin’s car. Aydin then drove away from the restaurant with the heroin and met with Vili and Daz in Thomastown. Aydin told Vili that the ‘Boss’ was having problems with his driver, and it was accepted that this was in reference to the applicant having difficulties with Margus. The transaction was completed, and Aydin drove to the restaurant to meet with the applicant. Aydin gave the $220,000 in cash to the applicant and the applicant called Harris, who took possession of the cash. The applicant handed a portion of the proceeds of this transaction to Danesh the following day near Chadstone Shopping Centre.
Arrest and forensics
The applicant was arrested on 17 December 2014 at his home in Wollert. On searching the applicant’s home and vehicle, police found cash totalling $15,000, nine Nokia mobile phones and a Blackberry mobile phone, four of which were used by the applicant during the operation. During his record of interview, he denied any involvement in drug trafficking.
A chemical analysis of the heroin that was provided to the covert police operatives resulted in 60 per cent purity for charges 1, 3 and 5, and 50 per cent purity for charge 2.
Procedural matters and delay
The applicant was charged on 17 December 2014, a few days after the last of the alleged offending. He was charged with trafficking in a large commercial quantity of a drug of dependence and with dealing with the proceeds of crime.
There were significant delays in advancing the prosecution of the charges against the applicant as a result of various applications and appeals by his co-accused. No part of the delay was attributable to the applicant.
On 9 November 2018, the Director of Public Prosecutions (the ‘Director’) filed an amended indictment containing the four trafficking charges to which the applicant pleaded guilty. The Director decided not to proceed with a ‘between dates’ Giretti[4] charge and accepted that the applicant’s role in the syndicate was not as great as previously asserted and that the applicant was not in control of the syndicate’s drug supplies.
[4]R v Giretti (1986) 24 A Crim R 112.
The plea hearing took place on 14 and 15 February 2019, but sentence was not passed until 19 May 2020.
The applicant remained on remand from the time of his arrest until he was sentenced. The COVID-19 pandemic affected the circumstances of his remand in 2020.
Applicant’s personal circumstances
The applicant’s personal circumstances, as described by the applicant himself, are set out in the report of Mr Patrick Newton, psychologist, dated 2 February 2019 which was tendered on the plea.
The description of these circumstances in Mr Newton’s report was adopted by the sentencing judge.
Personal history
The applicant was 54 years of age at the time of sentence. He was born in Afghanistan, where his family was involved in the military and in politics. The applicant recounted his childhood as being generally positive up until the age of around 10, when the Soviet Army invaded Afghanistan. Both the applicant’s grandfathers were killed and the applicant’s father was imprisoned.
When he was about 14, the applicant fled to Pakistan with a large part of his family. The family remained in the border regions of Pakistan and Afghanistan for some time. During those years, the applicant was exposed to ongoing conflict in Afghanistan, witnessing death and serious injury, and lived in fear for his own and his family’s safety. The applicant completed the equivalent of Year 11 and then studied political science for two years. However, he could not complete this course due to his immigration status in Pakistan. Thereafter, he held a variety of jobs.
The applicant was married in 2001 and, in 2004, he and his wife migrated to Australia, settling in Melbourne. The applicant became an Australian citizen. The couple have two children, who at the time of sentence were 15 and nine.
Since arriving in Australia, the applicant has had little, if any, employment. Since 2012, he has been a registered carer for his elderly mother, who suffers from poor health.
The applicant has returned to Afghanistan and Pakistan on a number of occasions for family events such as weddings. On one such visit, in 2010, he was kidnapped and held for ransom for 32 days by insurgents in Pakistan. He reported that during his captivity he was kept shackled in a very small room, and allowed out only to participate in daily prayers. When no ransom was forthcoming, his captors discussed killing him. The applicant eventually escaped during daily prayers.
The applicant enjoys the continued support of his wife, who has visited many times while he has been in custody. He also has the support of other members of his family.
Mental health
During his interview with Mr Newton, the applicant described ongoing symptoms of trauma, anxiety and depression as a result of his kidnapping and captivity in 2010. The applicant did not seek any formal treatment for these symptoms, due to a combination of cultural factors (including stigmatisation around seeking mental health care) and his own desire to ‘move on’.
Mr Newton observed that the applicant suffered from elevated anxiety in the context of ongoing depression, and that these factors interacted with each other to cause the applicant greater than usual distress. Notwithstanding those symptoms, Mr Newton did not diagnose the applicant with post-traumatic stress disorder, on the basis that the applicant did not meet the full criteria.
Further, Mr Newton did not diagnose the applicant with any major depressive illness, as his symptoms — lowered energy, rumination on pessimistic themes, and physical symptoms such as altered appetite — were not sufficiently severe. However, Mr Newton noted that the applicant was taking antidepressant medication during his time in custody, which was likely to contain the severity of the applicant’s depression and prevent the development of more severe symptoms.
Mr Newton concluded that the most likely mental health diagnosis for the applicant was an ‘Adjustment Disorder with Mixed Anxiety and Depressed Mood’. However, he also noted the possibility of a ‘differential diagnosis of Post-Traumatic Stress Disorder, in Partial Remission’. Mr Newton recommended ongoing psychiatric treatment (including the continuation of the applicant’s current medication), supplemented with psychological counselling.
Gambling issues
Mr Newton reported that, while the applicant had no issue with alcohol or drugs, he had an unresolved gambling problem that started while he was in Pakistan. This gambling issue became worse from 2011, when the applicant received money from the sale of properties overseas. The applicant told Mr Newton that he would attend the casino several times a week, and soon became impulsively involved, losing $3,000 to $4,000 at a time. The applicant became indebted to those around him, but continued to gamble until he was arrested. Mr Newton diagnosed the applicant with a gambling disorder, in light of the ‘widespread and pervasive impacts’ of gambling upon his life.
According to Mr Newton, the applicant demonstrated only ‘simplistic insight’ into his gambling problem. In particular, the applicant was overly confident about his ability to contain his gambling problem upon release into the community, and was sceptical of the benefit of treatment for his gambling problem. Mr Newton considered that this limited insight would likely place the applicant at an elevated risk of relapse into problem gambling and recommended that he participate in programs to prevent this from occurring.
Overall, Mr Newton was ‘relatively guarded’ about the applicant’s prognosis, even under ideal circumstances. He stated that the more treatment the applicant received, the more optimistic he would be about the applicant’s ability to function productively in society upon his release. Mr Newton also noted that, while the applicant was responding well to the treatment provided to him in custody, he was likely to experience ongoing anxiety and depressive symptoms at greater levels — and therefore experience incarceration as more burdensome — than a ‘typical prisoner’.
Sentencing remarks[5]
[5]DPP v Osman [2020] VCC 638 (‘Sentencing Remarks’).
After setting out the circumstances of the offending, the sentencing judge considered the applicant’s role in the offending conduct, concluding that he was not satisfied beyond reasonable doubt that the applicant was in control of the sale of heroin for the syndicate or ‘at the top of the syndicate’ or that the applicant ranked above Aydin in the syndicate. However, his Honour was satisfied that the applicant had ‘a much greater role’ than Harris, Wahab and Margus and rejected the argument made on the plea that the applicant was merely a ‘runner’ or drug courier.
For the purpose of passing sentence on the applicant, the sentencing judge considered the applicant to be a ‘middle manager’ in conjunction with Aydin, and assessed the trafficking as ‘middle level’ trafficking. The judge said:
You played a significant role in the sale of heroin by the syndicate, coordinating those involved in transporting the heroin to the location of the drug deals and the disposal of the cash received. On three occasions you personally received or dealt with the money derived from the heroin sales. Additionally, in the transaction giving rise to Charge 3, you personally delivered approximately one kilogram of heroin to a police covert operative.[6]
[6]Ibid [32].
In assessing the gravity of the offending, the sentencing judge observed that the regime in sentencing drug matters was quantity-based and acknowledged that while the quantity trafficked was not determinative of the assessment of the objective gravity of the offending, it would always be of importance.[7] Other important factors were the seriousness of the applicant’s role, the duration of his offending and his motivation for involvement in it.[8]
[7]Ibid [35] referring to Gregoryv The Queen [2017] VSCA 151, [23]–[24] (Maxwell P, Redlich and Beach JJA) (‘Gregory’).
[8]Ibid, again referring to Gregory [2017] VSCA 151, [24] (Maxwell P, Redlich and Beach JJA).
The sentencing judge noted that charges 3 and 4 involved trafficking of amounts that were respectively only 0.4 of a gram and 1.6 grams over the threshold for a large commercial quantity.[9] The fact that the weights were ‘towards the lower end of the scale for large commercial quantity, [was] a relevant factor in assessing the objective gravity of [the] offending conduct in relation to each of those offences’.[10] However, the amounts trafficked in charges 1 and 2 fell ‘only very slightly under the commercial quantity threshold’ making these very serious examples of the offence of trafficking simpliciter.[11]
[9]Ibid [36].
[10]Ibid.
[11]Ibid [37].
The judge went on to consider the subjective factors affecting the gravity of the offending, stating:
So far as subjective factors affecting offence gravity are concerned, your role was in the middle of the hierarchy for offences of this type, being akin to a ‘production manager’ or a willing and efficient lieutenant. Whilst one must not lose sight of the fact you are being dealt with for four separate and discrete offences, nonetheless the overall offending period was over six weeks. Your motivation for committing these offences was personal financial gain and you were found in possession of $15,000, being part of the proceeds from just one of these transactions.[12]
[12]Ibid [38].
The sentencing judge concluded that the applicant played a significant and integral role in a highly sophisticated criminal enterprise that was a successful business in trafficking in heroin. He stated that persons in the applicant’s position ‘must expect substantial sentences, because without them the trade in narcotics would collapse’.[13] The judge went on to say that while the applicant’s role was a critical part of the operation, it could not be said that the applicant was the prime organiser of the business.[14] Overall, the applicant’s moral culpability was assessed as ‘very high’.[15]
[13]Ibid [41].
[14]Ibid [42].
[15]Ibid [44].
Having considered the applicant’s personal circumstances (as described above), the sentencing judge considered the psychological impacts described by Mr Newton. Among other matters, the judge noted the applicant’s problematic gambling, his failure to gain insight into his condition and his elevated risk of relapse. The judge said:
This opinion, which I accept, does not auger well for your prospects of rehabilitation, which I assess as being highly problematic. Any relapse into problem gambling, would likely lead you to committing further crimes to feed your habit. In this context, I note Mr Newton’s observation he ‘remain[s] relatively guarded about Mr Osman’s prognosis’. Accordingly, I find you are a moderate risk of reoffending.[16]
[16]Ibid [70].
Later in his sentencing remarks, the sentencing judge confirmed:
As I earlier said, your prospects of rehabilitation are highly problematic and will largely depend on you not recommencing your gambling addiction upon your release from custody.[17]
[17]Ibid [85].
The sentencing judge also acknowledged that the applicant’s childhood exposure to social dislocation together with the traumatic effects of his hostage experience had led to intense feelings of anxiety and hopelessness, which had in turn been exacerbated by the circumstances the applicant experienced in prison.[18] However, the applicant was not suffering from any major depressive illness, the most likely diagnosis being an adjustment disorder with mixed anxiety and depressed mood, which the sentencing judge took into account as part of the applicant’s personal circumstances.[19]
[18]Ibid [72].
[19]Ibid [74].
The sentencing judge recorded that the applicant did not rely on Verdins[20] principles, despite suffering from anxiety and depressed mood.[21]
[20]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[21]Sentencing Remarks [76].
In mitigation, the sentencing judge noted that the applicant had no criminal history, and that he had no criminal matters outstanding or pending. The judge stated that the applicant would be sentenced as someone of otherwise good character, but observed that good character was of lesser weight when sentencing for large-scale drug trafficking.[22]
[22]Ibid [77], referring to Dao v The Queen; Tran v The Queen [2014] VSCA 93, [9] (Nettle JA).
The sentencing judge accepted that the applicant had pleaded guilty ‘at the earliest forensically reasonable opportunity’[23] and that his pleas had a utilitarian benefit and indicated both an acceptance of responsibility for the offending conduct and a willingness to facilitate the course of justice.[24] The judge also accepted that the applicant had demonstrated ‘true contrition and remorse’ for the offending.[25]
[23]Ibid [79].
[24]Ibid [80].
[25]Ibid [80]–[81].
The sentencing judge described the effect of delay as a very significant mitigating circumstance in this case, the delay being due to forces that were not within the applicant’s control such as the trial of the co-accused, interlocutory appeals, and the effects of COVID-19.[26] The delay in question was some five and a half years during which time the applicant had had a very significant sentence of imprisonment hanging over his head.[27]
[26]Ibid [82].
[27]Ibid [86].
The sentencing judge accepted that the applicant’s family circumstances — his mother’s ill-health, his wife’s mental health and the effect his imprisonment was having on his children — would lead to custody being burdensome for him. His Honour acknowledged that ‘these circumstances have imposed considerable emotional pressure on [the applicant] … and will weigh heavily on [the applicant] and increase the burden of custody’.[28]
[28]Ibid [87]–[90].
The sentencing judge dealt with the issue of parity. In respect of the sentence that was imposed on Wahab, the judge considered that Wahab played a role that was ‘significantly lower down the hierarchy of the syndicate’ than the applicant.[29] His Honour noted that the judge who sentenced Wahab found that he had taken ‘remarkable steps’ towards rehabilitation and that he had ‘excellent prospects for rehabilitation’.[30]
[29]Ibid [94].
[30]Ibid.
In relation to the sentences that he passed on Harris and Margus, the sentencing judge found that Harris had played a significantly lesser role than the applicant and that he had acted at the applicant’s direction.[31] Further, Harris’ personal circumstances were ‘markedly different’ to the applicant’s in that he had a prior criminal history, and faced the prospect of deportation.[32] The judge also observed that Harris had provided assistance to police in relation to another investigation, for which he received a significant sentencing discount, and that there was an element of custodial hardship taken into account in his case.[33]
[31]Ibid [96].
[32]Ibid.
[33]Ibid.
The judge found that Margus’ role in the offending was that of a ‘drug packer and courier’, who acted at the direction of Harris.[34] Whilst Margus had a ‘relatively extensive prior criminal history’, he received a significant reduction in sentence in accordance with Bugmy[35] principles on account of ‘his disadvantaged socio-economic background, and his having suffered physical and emotional trauma during childhood’.[36] In addition, Margus had a severe intellectual disability that enlivened the principles of Muldrock[37] and Verdins and reduced the importance of general deterrence and denunciation in his case. Margus’ moral culpability was also reduced because of these circumstances.[38]
[34]Ibid [97].
[35]Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 (‘Bugmy’).
[36]Sentencing Remarks [98].
[37]Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (‘Muldrock’).
[38]Sentencing Remarks [98].
Having completed that exercise, the judge stated that in sentencing the applicant, he was required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, so far as possible, that the applicant is rehabilitated and reintegrated into society. His Honour continued:
General deterrence, denunciation and just punishment are very important sentencing considerations, particularly for the offences charged in Charges 3 and 4 on the Indictment. These offences are prevalent in the community and, as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.
Clearly, just punishment, general deterrence and denunciation must be given primacy in my instinctive synthesis, and I am of the view in your case specific deterrence and protection of the community need be given some weight. Moreover, I can only adopt a cautious approach to your prospects of rehabilitation, which I find to be highly problematic given your lack of insight and the very real risk you will return to satiating your gambling addiction upon your release from custody.[39]
[39]Ibid [101]–[102].
Ground 2
Ground 2 is that the sentencing judge erred in finding the applicant was a moderate risk of reoffending.
The applicant submits that as a result of the finding that he was a moderate risk of reoffending, the sentencing judge erred in giving too much weight to the sentencing considerations of specific deterrence and protection of the community, when this was not a case that called for the sentencing purposes of specific deterrence and protection of the community to be emphasised. The applicant submits that the sentencing judge himself recognised this in comments made during the plea hearing.
The applicant’s argument is based on the dual propositions that the sentencing judge’s conclusion as to his risk of reoffending did not follow from Mr Newton’s opinions and that it was entirely speculative in light of the period that the applicant would remain in custody and his age upon release. The applicant submits that the finding that he was a moderate risk of reoffending was simply not open.
In submitting that the assessed risk of his reoffending was purely speculative, the applicant relies on the decision of the High Court in Bugmy.[40] In Bugmy, the offender had been sentenced to life imprisonment with a non-parole period of 18 years for murder and armed robbery, and the High Court had to consider whether the trial judge erred in imposing a minimum term of 18 years based on his risk of reoffending. In this context, Dawson, Toohey and Gaudron JJ said:
Although [the sentencing judge] clearly gave detailed consideration to the task he had to perform, it is hard to resist the conclusion that in his reasons his Honour was unduly influenced by considerations which bear in the fixing of a head sentence rather than on the minimum term. The risk that the applicant might reoffend was of course a relevant factor in fixing a minimum term, but a minimum term of 18 years and six months is of such length as to take the prospects of reoffending in this case beyond even speculation. The applicant was 27 years of age when the minimum term was fixed. He will be over 45 before the likelihood that he will reoffend will become a matter for assessment. It is not possible to say now what the likelihood will be then. Equally the applicant's behaviour in prison is a relevant consideration, but the longer the minimum term the less importance it must assume, simply because of the impossibility of making a forecast of future behaviour so far ahead.[41]
[40](1990) 169 CLR 525; [1990] HCA 18.
[41]Ibid 537.
The applicant submits that the remarks about assessing the risk of reoffending are apposite in this case. While Mr Newton made observations about the applicant’s failure to acknowledge problems arising from his gambling addiction and how this failure might affect him in the future, if the applicant is not granted parole, upon release it will be (at least) 19 years since he last gambled, and to suggest that he will be a moderate risk of reoffending on the basis that he may not have dealt with his gambling addiction is speculation ‘in the extreme’.
The applicant submits that Mr Newton identified the applicant’s presentation at a point in time — a point well before his eventual release and prior to any of the interventions recommended by Mr Newton. He further submits that even if he was unable to access the interventions recommended by Mr Newton, he would at least eventually re-enter the community with anti-depressant medication which might diminish the psychological role gambling had assumed for him.
We reject the submission that the sentencing judge erred in assessing the applicant’s risk of reoffending in the way that he did. Mr Newton’s report provided a basis upon which the applicant’s risk of reoffending could be assessed as ‘moderate’, which was this: the applicant had a gambling problem that had caused him to fall into debt which, in turn, had contributed to his offending, yet he did not see the need to do anything about it. The judge assessed the risk as he saw it at the time of sentencing, based on the information and opinion in Mr Newton’s report. The judge was not assessing the applicant’s risk of reoffending 19 years in the future, but considering the risk as part of the applicant’s then current personal circumstances relevant to the sentencing synthesis. The 19-year term was a product of a number of factors, including the need for general deterrence and to denounce the offending and punish the offender.
Viewed in this light, it was also plainly open to the sentencing judge to factor in the applicant’s unresolved gambling problem — which was serious and of long standing — and its criminogenic potential into his consideration of the need for specific deterrence and community protection. His Honour stated that he gave these factors ‘some weight’. This is unexceptional.
Ground 2 is not made out.
Ground 3
The applicant submits that the sentencing judge erred in sentencing on charges 3 and 4 on the basis that the offending was ‘prevalent’, in failing to accord the applicant procedural fairness by putting him on notice that he intended to sentence on the basis that the offending was prevalent and in according greater weight to general deterrence on account of the finding of prevalence.
The relevant passages in the sentencing remarks are these:
General deterrence, denunciation and just punishment are very important sentencing considerations, particularly for the offences charged in charges 3 and 4 on the Indictment. These offences are prevalent in the community and, as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.
Clearly, just punishment, general deterrence and denunciation must be given primacy in my instinctive synthesis, and I am of the view in your case specific deterrence and protection of the community need be given some weight.[42]
[42]Sentencing Remarks [101]–[102].
The prevalence of a particular type of offending in the community may be treated as an aggravating factor in sentencing, insofar as it places increased importance on the sentencing purpose of general deterrence.[43] In R vDownie,[44] Callaway JA (with whom Phillips CJ and Batt JA agreed) raised three issues for consideration when a judge is minded to impose a more severe penalty on account of prevalence:
The first relates to the material or sources on the basis of which the judge is entitled to conclude that the offence is prevalent. Is he or she limited to admissible evidence and matters of which judicial notice may be taken or may regard be had to the wider range of material available on a plea or to an even more generous variety of sources? The second relates to the degree of assurance that the judge must have that the offence is prevalent. In the language of sentencing facts, the second issue relates to the standard to which prevalence must be established. The third is concerned with natural justice. In what circumstances must the judge make it clear to counsel that prevalence may be taken into account?[45]
[43]Haddara v The Queen [2016] VSCA 168, [62] (Redlich, Priest and Beach JJA).
[44][1998] 2 VR 517.
[45]Ibid 520.
Callaway JA addressed the third issue by reference to the decision of this Court in R v Li,[46] where Winneke P said:
[l]t is inappropriate for a sentencing judge to aggravate a sentence by reference to facts of which he has knowledge (and which are not a matter of notoriety) without first giving to the accused, or his counsel, an opportunity to meet and counter such facts by appropriate submissions or otherwise … Procedural fairness requires no less.[47]
[46][1998] 1 VR 637.
[47]Ibid 643.
The applicant submits that the question of prevalence did not arise at the plea hearing. The Crown did not contend that trafficking in a large commercial quantity of a drug of dependence was prevalent offending and the sentencing judge gave no indication on the plea that he regarded it as prevalent. The applicant was given no opportunity to address the accuracy of this finding or its potential relevance to the exercise of the sentencing discretion.
The applicant submits further that the finding that trafficking in a large commercial quantity of a drug of dependence was prevalent is wrong, or at least that it was not established for the purposes of the sentencing exercise. In oral submissions, Senior Counsel for the applicant referred the Court, among other matters, to figures from the Sentencing Advisory Council’s ‘Sentencing Snapshot’ of August 2020,[48] indicating that trafficking in a large commercial quantity of drugs was the principal offence in only 0.8 per cent of cases sentenced in the higher courts in the six year period from 2014 to 2019.
[48]Sentencing Advisory Council, ‘Sentencing Snapshot 245: Sentencing Trends for Trafficking in a Large Commercial Quantity of Drugs in the Higher Courts of Victoria 2014-15 to 2018–19’(18 August 2020).
Had the judge treated the prevalence of trafficking in large commercial quantities of drugs as an aggravating factor in sentencing the applicant, his Honour would have been required to hear from the applicant as to whether the offending could or should be treated in that way for the purposes of sentencing. However, we are not persuaded that the sentencing judge did so. In referring to ‘prevalence’ in the passages set out above, the sentencing judge was referring to the prevalence of drug trafficking generally and was not referring specifically to the prevalence of trafficking in large commercial quantities of heroin. In this context, his Honour did not treat prevalence as an aggravating factor but did no more than to note that offending of the type in question warranted strong denunciation and required general deterrence to be given significant weight. So much is uncontroversial.
Ground 3 is not made out.
Ground 4
Ground 4 is that the sentences imposed on charges 3 and 4, the orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive in all the circumstances.
The applicant submits that the sentences imposed on charges 3 and 4 were outside the range reasonably open to the sentencing judge to impose in circumstances where the amounts in issue were 0.4 grams and 1.6 grams greater than the large commercial quantity threshold.
He further submits that despite the fact that he fell to be sentenced as a serious drug offender, an order for cumulation on charge 4 amounting to 45 per cent of the sentence imposed on that charge, in the context of a four-charge indictment where each charge attracted a substantial sentence, was not reasonably open in all of the circumstances. He submits that each of the orders for cumulation was not reasonably open in all of the circumstances, particularly where each charge reflected offending of the same character over a relatively short space of time, such that significant weight needed to be accorded to the principle of totality.
The applicant submits that distinctive features of his offending were that each charge involved significant but secondary involvement on a single day; there was no evidence of the sort of sophistication or substantial profit found in other cases; and the purity of the drugs in issue was not high for wholesale-level trafficking. By reference to quantity, the offending was at the lowest level possible for large commercial quantity trafficking.
Furthermore, according to the applicant, there were weighty matters in mitigation or tending towards a lower rather than a higher sentence, namely:
(a) The applicant was a person of previous good character who had reached the age of 55 without prior convictions and he had pleaded guilty at what the sentencing judge found to be the earliest ‘forensically reasonable’ opportunity. His plea was found to be a demonstration of true contrition and remorse.
(b) The applicant had endured extraordinary delay in his plea being heard (in excess of four years) and again between the plea hearing and being sentenced (15 months). The judge found this to be a very significant mitigating circumstance, but that mitigation is not apparent in the sentencing orders.
(c) The sentencing judge found there was no evidence the applicant was living a ‘grandiose lifestyle’ and, in the context of assessing the applicant’s prospects of rehabilitation, seemed to accept that the applicant’s offending was committed under the pressure of gambling debts.
(d) The applicant had faced personal hardship and deprivation as a displaced person in Afghanistan and Pakistan before coming to Australia and he suffered from anxiety and depression as a result.
(e) The sentencing judge accepted as relevant matters in mitigation the applicant’s anxiety arising from hardship to his family occasioned by his incarceration and additional custodial hardship as a result of lockdowns.
The applicant submits that the sentencing judge failed to give these very strong factors in mitigation sufficient weight in the instinctive synthesis. Instead, his Honour imposed a head sentence of 19 years on a man of previous good character, in his fifties, with a family that included two young children, and against his traumatic background in Afghanistan. The applicant submits that he was trying to make a life in Australia, developed a gambling habit and got involved in drug trafficking to undercover police officers over a period of six weeks and now finds himself sentenced to 19 years in an Australian gaol.
In oral submissions, the applicant submitted that his criminality was further mitigated by the fact that there was no prospect of the drugs ever finding their way into the community, where they could put people at risk of harm. In this respect, he relied on DPP v Haidiri,[49] which concerned sentencing for a people smuggling charge that was the product of a police ‘sting’. The sentencing judge in that case imposed the minimum mandatory sentence, relying partly on the fact that, because of police involvement, no people would actually be smuggled into Australia. The Commonwealth Director of Public Prosecutions sought leave to appeal on the basis that this constituted a specific error by the sentencing judge. This Court dismissed the appeal. In upholding the sentencing judge’s decision, Harper JA (with whom Weinberg and Priest JJA agreed) referred to the following statement of Hulme J in the New South Wales Court of Appeal:
[A]bsent circumstances where criminality has been exacerbated by or at the instigation of authorities, the circumstance that the authorities have been complicit in offending or have prevented drugs from being disseminated into the community, in no way mitigates the subjective criminality of the offender. However, if the involvement of the authorities prevents the transaction from resulting in harm, it is illogical not to afford that fact appropriate weight just as in the converse situation one would take account of any damage that was a consequence of the offending.[50]
[49][2013] VSCA 149. See also Arico v The Queen (2018) 272 A Crim R 450, 528 [413]–[414] (Weinberg and Priest JJA).
[50]R v DW [2012] NSWCCA 66, [117].
The applicant submits that 19 years was ‘a huge sentence’ given the level of criminality involved in this case. He received a discount of approximately 16 per cent for the factors in mitigation, including his early plea of guilty at the first reasonable forensically available opportunity. He submits that the total effective sentence was, on its face, manifestly excessive, and clearly breached the principle of totality in all of the circumstances.
The Director submits that a sentence of 11 years on each of charges 3 and 4 for trafficking in a large commercial quantity of drugs is ‘unremarkable’. The sentences are within range having regard to the fact that the quantity of drugs trafficked in each case was over one kilogram and the applicant pleaded guilty to offences having the mens rea of intending to traffick in a large commercial quantity.
The Director relies on Gregory,[51] in which this Court commented that sentences well into double figures would be expected in ‘commercial quantity’ cases where one or more of the following features was present:
[51][2017] VSCA 151.
(f) the quantity approached the large commercial quantity threshold;
(g) the offender was in charge of the trafficking business;
(h) the business was conducted for a substantial period;
(i) the offender pleaded not guilty; and
(j) the offender had relevant prior convictions.[52]
[52]Ibid [98] (Maxwell P, Redlich and Beach JJA).
The Director submits that the individual sentences for charges 3 and 4 fall at the lower to mid-level of the available range post-Gregory. The quantity involved in each charge exceeded the large commercial quantity threshold, the applicant was mid-level in the syndicate and, while the individual charges were single day charges, the applicant’s involvement spanned six weeks.
More generally, the Director referred to the need for a ‘tensioning upwards’ of sentences for commercial and large commercial quantity trafficking, reflected in a number of decisions of this Court since Gregory: in particular, in Nguyen v The Queen,[53] Djordjic v The Queen,[54] DPP v Condo[55] and Gayed v The Queen.[56]
[53][2019] VSCA 184.
[54][2018] VSCA 227 (‘Djordjic’).
[55][2019] VSCA 181 (‘Condo’).
[56][2021] VSCA 141.
In Djordjic, the offender was sentenced to 15 years’ imprisonment for trafficking 2.3 kilograms of cocaine and 1.981 kilograms of methylamphetamine, and to nine years’ imprisonment with three years’ cumulation for trafficking 1.5 kilograms of cocaine. Neither sentence was disturbed on appeal. This Court did not consider the sentences to be wholly outside of the range available to the sentencing judge, noting that, notwithstanding the applicant’s early guilty plea and his good prospects of rehabilitation, the applicant had trafficked more than four times the amount necessary to constitute a large commercial quantity of the substances, and that he occupied a high-level position in the hierarchy of the relevant drug-trafficking enterprises.
In Condo, the offender pleaded guilty to, among other things, one charge of trafficking in a drug of dependence (methylamphetamine). While the precise quantity of methylamphetamine trafficked could not be determined, it was accepted that it was ‘at the very top’ of the commercial quantity range for mixed methylamphetamine, at just under one kilogram. The sentence for the trafficking charge, which was the base sentence, was five years and nine months’ imprisonment. The Director of Public Prosecutions successfully appealed on the basis of manifest inadequacy, and the sentence was increased to nine years and nine months. This Court held that the sentence imposed by the sentencing judge was ‘wholly inadequate’ given the high maximum sentence for the offence, the relatively large quantity of methylamphetamine trafficked by the offender, and his elevated position in the relevant drug syndicate.
As for the orders for cumulation, the Director points out that charge 4 required the sentencing judge to sentence the applicant as a serious drug offender under pt 2A of the Sentencing Act 1991 and his Honour was required to and did have regard to the protection of the community from the applicant as the principal sentencing purpose for which the sentence was imposed. The sentencing judge noted that the sentence would be served cumulatively on all other sentences unless he directed otherwise, which he decided to do. As for the cumulation in charges 1 and 2, the Director submits that the cumulation was appropriate, given that they involved completed sales of almost 500 grams of heroin to undercover operatives.
On the question of totality, the Director emphasised that charges 3 and 4 involved completed sales of over one kilogram of heroin to undercover operatives. The four sales took place in four separate incidents over a period of six weeks and involved the sum of $440,000 being handed to the syndicate.
Analysis
In order to establish manifest excess, an applicant must demonstrate that the sentence was wholly outside the range of sentencing options available to the trial judge.[57] This Court has repeatedly emphasised that manifest excess is a difficult ground to establish. It is not enough that an appeal court might conclude that it would have imposed a different sentence from the trial judge: reasonable minds frequently differ as to appropriate sentences.[58] Rather, it must be shown that something has gone ‘obviously, plainly and badly wrong in the exercise of the sentencing discretion’.[59] The sentence must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.[60]
[57]R v Abbott [2007] VSCA 32, [13]–[15] (Maxwell P, Eames JA agreeing at [22], Habersberger AJA agreeing at [23]). See further DPP v Karazisis (2010) 31 VR 634, 662–3 [127]–[128]; [2010] VSCA 350 (Ashley, Redlich and Weinberg JJA).
[58]DPP v Macarthur [2019] VSCA 71, [57]–[59] (Ferguson CJ, Kaye and Weinberg JJA).
[59]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA). See also Young v The Queen [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA).
[60]Hanks v The Queen [2011] VSCA 7, [22] (Bongiorno JA, Redlich JA agreeing at [26]).
We do not consider the individual sentences of 11 years on charges 3 and 4 to be so far outside the range of a reasonable discretionary judgment as to bespeak error. Even though the quantity of drugs trafficked in each instance was just over the threshold for a large commercial quantity, in each case it was over one kilogram and the applicant pleaded guilty to having the intention to traffick in a large commercial quantity. The applicant played a vital role in the trafficking in each instance, being more than a mere factotum. His involvement began well before the actual drug transaction and finished some time afterwards with the handling of the proceeds. He organised and gave orders to the other players, who sat below him in the syndicate hierarchy and were subject to his direction. He was trusted to hold and convey very large amounts of cash on behalf of the syndicate. He engaged in this conduct for monetary gain.
Given the seriousness of the offending, and the maximum sentence of life imprisonment that the charges attract, we are of the view that it was open to the sentencing judge to impose sentences of 11 years on charges 3 and 4, even though there were significant mitigating factors in the applicant’s favour, most especially his plea of guilty and the extraordinary length of time that he spent on remand.
The applicant does not complain about the sentences of four years on charges 1 and 2. Having regard to the fact that the amounts trafficked in charges 1 and 2 were just below a commercial quantity, it seems to us that the sentences of four years on these charges were, if anything, light.
However, having regard to the level of criminality overall, we consider the total effective sentence of 19 years’ imprisonment to be manifestly excessive in the circumstances. The applicant trafficked approximately three kilograms of heroin over the relatively confined period of about six weeks. He did so as a ‘mid-level’ trafficker — as more than a runner or courier but nonetheless not as a person anywhere near the pinnacle of the criminal enterprise. He had a number of mitigating factors that weighed in his favour, including his clean record, his early plea of guilty and the inordinate delay in finalising his matters.
The totality principle imposes a final duty on the sentencing judge to ensure that the totality of consecutive sentences is not excessive. The principle requires the sentencing judge to stand back and assess not just the individual sentences but also to review the aggregate sentence and consider whether the aggregate properly reflects the degree of criminality involved and is ‘just and appropriate’[61] and ‘not excessive’.[62] In this case, we consider the total effective sentence requires moderation. The sentencing orders made in the County Court will be set aside and the applicant resentenced.
[61]D A Thomas, Principles of Sentencing (Heinemann, 2nd ed, 1979) 56–7, quoted in Mill v The Queen (1988) 166 CLR 59, 62–3; [1988] HCA 70 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
[62]D A Thomas, Principles of Sentencing (Heinemann, 2nd ed, 1979) 57, quoted in R vPiacentino (2007) 15 VR 501, 508 [32]; [2007] VSCA 49 (Eames JA, with whom Buchanan JA and Vincent JA agreed).
Ground 5
It is unnecessary to consider ground 5 having regard to the need to resentence the applicant.
Resentencing
In Nguyen v The Queen,[63] Gageler, Nettle and Gordon JJ described the complexity of the sentencing task in the following terms:
Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.[64]
[63](2016) 256 CLR 656; [2016] HCA 17.
[64]Ibid 677 [64] (citations omitted).
It is necessary through a process of partial cumulation and concurrency to arrive at a total effective sentence that gives effect to the relevant sentencing principles of general deterrence, denunciation and punishment for serious drug trafficking, and recognises both the applicant’s elevated role in the trafficking enterprise vis-à-vis the lesser roles of his co-offenders, as well as the factors mitigating the applicant’s criminality.
We would make orders that will result in a total effective sentence of 16 years, with a non-parole period of 12 years. We would impose the same sentences on the individual charges as were imposed by the sentencing judge, and order that the sentence on charge 3 be the base sentence. However, we would order cumulation on charges 1 and 2 to be one year on each charge and cumulation on charge 4 to be three years.
For the purposes of s 6AAA of the Sentencing Act 1991, we would declare that, had the respondent not entered a plea of guilty on both charges, we would have sentenced him to a total effective sentence of 19 years with a non-parole period of 16 years.
Disposition
Leave to appeal will be granted and the appeal will be allowed on ground 4. The orders of the sentencing judge will be set aside and the applicant will be resentenced in accordance with this judgment.
---
28
22
0