R v Can

[2021] NSWDC 775

District Court

New South Wales

Medium Neutral Citation:

R v Can [2021] NSWDC 775

Hearing dates:

14 December 2021

Date of orders:

14 December 2021

Decision date:

14 December 2021

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Aggregate sentence 4 years with a non-parole period of 3 years.

Indicative sentences:

Seq. 1: 1 yr 6 months

Seq. 2: 3 yrs 9 months NPP 2 yrs 9 months.

Catchwords:

CRIME – SENTENCE – Two substantive offences: (1) Deemed supply 59.74 grams methylamphetamine; (2) Deemed supply 3.356 kgs of GBL (commercial quantity) – 58 year old offender with extensive criminal history including offences of the same type. Offences committed whilst on parole – COMMENCEMENT DATE OF SENTENCE – DISCRETIONARY.

Legislation Cited:

Crimes (Sentencing Procedure) Act1999 (NSW)

Drug Misuse and Trafficking Act1985 (NSW)

Cases Cited:

Nil.

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

R – Crown
Offender – Vural Can

Representation:

Crown
Braid, H instructed by the Office of the Director of Public Prosecutions
Offender
Beaufils, D. instructed by Abbas Jacobs Lawyers.

File Number(s):

2020/00296867

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Vural Can stands for sentence as a consequence of pleading guilty to two substantive charges. The first is that between 8pm and 8.08pm on 15 October 2020, at Eastlakes, he did possess with the purpose of supply a prohibited drug, namely 59.74 grams of methylamphetamine. The second substantive charge is that between 8.08pm and 8.50pm, on 15 October 2020, at Eastlakes, he did possess, with the purpose of supplying, a prohibited drug, namely 3.356 kilograms of Gamma-Butyrolactone (“GBL”), being an amount which was not less than the commercial quantity applicable to that prohibited drug. The offender also asks me to take into account on a Form 1, when sentencing for the second offence that I have just quoted, a charge that between 1am and 8.05pm on 15 October 2020, at Sydney, he did supply a prohibited drug, namely 112.86 grams of gamma-Butyrolactone.

2. It is accepted by the Crown that the offender pleaded guilty to each of those charges at the earliest available opportunity and therefore is entitled to the statutory discount of 25% of the proper sentence to be passed upon him for the commission of these crimes.

Facts

3. There is a statement of agreed facts. At the relevant time the offender was 58 years old, living in a unit complex in Maloney Street, Eastlakes. Mr Zeki Saffo is referred to a co‑offender. Paragraphs [3] to [5] recite certain conversations that occurred between the offender and Saffo on 6, 10 and 15 October 2020. However, there is some conjecture about the accuracy of the telephone calls, because I have been told by the Crown that they were, indeed, conducted in Turkish and what has been provided to me is a translation into English and according to the offender’s oral evidence today there were some problems with the translation of some of the entries that are recorded in the statement of facts. Nevertheless, the phone calls as recorded do suggest a strong familiarity between the offender and Saffo, which the offender freely acknowledged in his oral evidence, and of the offender’s knowledge of Saffo’s role as a drug dealer with whom the offender had been associated for many years.

4. The relevant date is 15 October 2020. At 7.42pm on that day closed-circuit television at the Meriton Suites in Liverpool Street, Sydney, not very far from this Courthouse, captured the offender walking to the lifts and carrying a white and green Woolworths bag and a black laptop bag. The offender left the foyer of the Meriton Suites and walked east along Liverpool Street. He was still carrying the two bags. He approached a taxi parked in a taxi rank on Liverpool Street. That taxi cab was being driven by a gentlemen whose first name is Mehmet, a person whom the offender acknowledged was a fellow Turk. The offender put the Woolworths shopping bag and the black laptop bag on the back seat of the taxi and then got into the front passenger seat. He was the only person in the taxi besides the driver, Mehmet. There was nothing on the back seat of the cab before the offender entered the taxi. The offender asked Mehmet to take him home. The offender and Mehmet negotiated a fixed fare of $20 for the ride. However, the offender told me today that was, indeed, $30 but there is nothing in that inconsistency. The taxi drove west from Liverpool Street and did not make any stops on the way to the offender’s block of home units in Eastlakes nor did it pick anybody up or drop anyone off or stop to drop off anything.

5. At around 8.05pm the taxi arrived at the rear driveway of the offender’s unit complex. The offender told the driver that he was going upstairs to collect something. The offender left the front passenger seat of the taxi and walked towards the rear entry of his unit complex. He left behind him on the back seat of the cab the Woolworths shopping bag and the black laptop bag.

6. The offender was stopped by police at the entrance to the unit complex. He was searched. The police located a wallet, a Meriton Suites card for room 7305 on floor 73 of the Meriton Apartments in Liverpool Street and a Samsung mobile telephone. The offender told the police that he had visited his friend at the Meriton Suites in the city that evening. Police then went to the taxi, which was still located at the back of the apartment complex. They located the black laptop bag and the Woolworths shopping bag which was still on the back seat. No other relevant items were found in the taxi.

7. When questioned in relation to the two bags the offender told the police a number of things. Many of those things were patent lies. The first was that the laptop bag and the Woolworths bag did not belong to him. In his oral evidence the offender admitted that the laptop bag was his, but the Woolworths bag had been given to him by Saffo to give to Mehmet. The offender told the police that he had never seen those bags before and had not touched them. That was a blatant lie. The offender told the police that he did not have anything with him when he got out of the taxi and the bags must have been left there by a previous passenger in the taxi. That also was a blatant lie. The offender told the police that he would have taken the bags if they had belonged to him. Words to the that effect were also mendacious, because the offender admitted that the black laptop bag was his and he had intended eventually to take it with him. The offender then told the police that he had not seen the laptop bag until the police opened the car door. That is a blatant lie. The offender said he had not seen or carried that bag. That is also a blatant lie. The offender said that he had stayed in the city on the previous evening with his friend who lived there. That is correct. He said that his friend was called Michael and he owned a jewellery business. The friend was, in fact, Saffo, and whether he owns a jewellery business I do not know, but the offender merely described him as a drug dealer.

8. Police searched the laptop bag. The offender admits that it was his and its contents belonged to him. They found two resealable plastic bags containing a total of 8.67 grams of methylamphetamine. They also found another .77 grams of methylamphetamine. They found one plastic bottle labelled “Swiss Women’s Multivitamins” containing 51.07 grams of methylamphetamine. The lid of that bottle was sealed with tape. The bottle was located inside a sealed express postbag addressed to “Lucas Bobin” and purported to have been sent by somebody named “B. Williams”. The black laptop bag also contained one plastic bottle with a green lid containing 39 grams of GBL. As I have said earlier, the offender admits that the illegal drugs were for his own use. In addition the police found in the laptop bag a Vodafone SIM card in a packet, a box of “Ciavor” prescribed medication, but the name of the person to whom it was prescribed was shown to be Kenzo Arambulo. It also contained six blue love heart shaped tablets. What they were I do not know. There was also a one circular plastic container with a crystalline substance. There were two bags of plastic resealable bags. There was one pipe for smoking, I assume smoking methylamphetamine, and a number of unpacked syringes. There was also an Apple laptop which had the name of “Victor Cotton” on it, which may represent an anglicisation of the offender’s name, and there was a also a small set of electronic scales.

9. Anyone who has done any work in this Court concerning drugs know that bags of plastic resealable bags and electronic scales are indicia of drug supply.

10. In the Woolworths shopping the police found one clear plastic bottle labelled “Icelandic Glacial” containing 1.616 grams of GBL. There was another plastic bottle labelled “NU” and one brown bottle labelled “V Rich Chocolate” containing 968.3 grams of GBL. They also found two plastic bottles labelled “Coca Cola” containing 733.2 grams of GBL. There were other things found in the Woolworths shopping bag which I need not mention.

11. A total of 59.74 grams of methylamphetamine was located, but that was from the black laptop bag. A total of 3,356.5 grams of GBL was located. The commercial quantity of GBL is 1 kilogram and the large commercial quantity of GBL is 4 kilograms.

12. The offender was then arrested and taken to the Mascot Police Station. He was given an opportunity to be interviewed, but exercised his right to decline to answer any questions in relation to his arrest.

13. At 10.35pm the offender phoned Saffo from Mascot Police Station and essentially told his acquaintance or co-offender that he should quit the Meriton Apartments because of police activity.

14. The offender’s DNA was found on one of the lids of a container that had contained GBL. The offender admitted as much, he said, because he was in the Meriton Apartment unit that he visited with Saffo he had touched or used the bottle containing GBL.

15. The matter which the offender asks me to take into account on a Form 1 is a discrete supply of GBL that was intended to be made to a lady named Mira. The following text messages were exchanged between Mira and the offender on 15 October 2020:

“Mira: Hey where are you? I need drinks bad Im going to be sick,. Rabi has been trying to see u and ur phones off. He went past urs and u were not there.

Can: Babe I told him that I am at World Towers in my friend apartment I am coming home tonight if he can he should come here or I send it to him or bring it to him.

Mira: Can you please we are at home he was sleeping. Im sick. Would someone be able to bring me some drink also.

Can: Ok I try to send someone how much drink do you need.

Mira: 100. Or half if u have. Please if u can I would appreciate it.

Can: I am trying now.

Mira: Please and thanks vic. How much is it. For half and 100 ml. What’s happening vic?? Did you find a driver.”

According to the agreed facts police located other messages related to drug supply on the offender’s phone.

Personal Circumstances

16. The offender was born in September 1962. He is currently 59 years old. He came to Australia on 2 February 1986 at the age of 24. He has been in Australia for 35 years. Twenty-six of those years have, according to the offender’s computation, been spent in gaol. The offender grew up in his native Turkey. He would have come from a relatively well positioned family, his father being a three star general in the Turkish Army. His mother was a housewife. He is the eldest of three with a younger brother and a sister. He tells me in his letter, which is exhibit 1, that he is the only member of his family who has any criminal record. After completing high school he spent two years in the Turkish Army, which I understand to be a compulsory military service.

17. After arriving in Australia the offender found work at the Ford factory at Homebush, but after nine months was retrenched because of a work shortage. Forty others lost their job at the same time. He then found work at the glass factory which he described as being at Redfern. I assume that was the Australian Glass Manufacturers or ACI site on South Dowling Street. He then found work at the Goodyear Tyre factory and six months after that he found work at a kebab shop in Newcastle where he worked as a manager for one year.

18. What appears to have bought the offender to Australia was a relationship with an Australian lady that he formed when she was in Turkey. He followed her here. They may well have married. There was one child of that relationship, but the offender has had little contact with that child. His relationship with the lady broke down. He was introduced to gambling and cocaine. In his letter he told me that he “lost my way” he also lost his savings and started mixing in a wrong milieu.

Criminal Record

19. His criminal record started at the age of 28. On 20 August 1991 he was charged with larceny as a servant and making a false declaration. He was sentenced to imprisonment for two years with an 18 month non-parole period. He appealed that sentence to the Court of Criminal Appeal, but eventually abandoned the appeal.

20. At the age of 29 on 18 February 1992 he was charged with armed robbery and conspiracy to commit an armed robbery and being armed with intent to commit an indictable offence. He was sentenced to imprisonment for nine years with a non-parole period of six years for the major offence by my colleague Judge David Freeman. He made an application for leave to appeal against conviction and sentence to the Court of Criminal Appeal, but leave to appeal against his conviction was dismissed and although leave to appeal the severity of the sentence was granted that appeal was also dismissed.

21. On 19 July 2001, at the age of 39, he committed crimes of goods in personal custody, the reasonably suspected of being stolen. For that he was merely fined. On 4 June 2002 he committed the crime of robbery in company, causing wounding or grievous bodily harm. On 27 December 2002, some six months later, at the age of 40, he committed the crime of importing a prohibited narcotic. The narcotic was cocaine. For that offence he was sentenced to imprisonment for nine years, commencing on 27 December 2002 with a non‑parole period of six years concluding on 26 December 2008. For the earlier robbery in company, causing wounding/GBH he was sentenced later to imprisonment for six years and nine months, commencing on 27 December 2007 and concluding on 26 June 2016 with a non-parole period of five years and six months. He appealed that sentence to the Court of Criminal Appeal, but the appeal was dismissed.

22. On 1 September 2014 he drove whilst his licence was suspended for which he was fined. On 18 March 2015 he committed a number of drug offences and a driving offence. For each offence was punished under s 10A of the Crimes (Sentencing Procedure) Act1999. On 18 March 2015 he was found guilty of supplying a prohibited drug, an amount greater than the indictable quantity. For that he was sentenced to imprisonment for nine months, commencing on 18 August 2015.

23. Sometime between 14 July 2016 and 7 September 2016 he committed assault occasioning actual bodily harm. For that offence he was imprisoned for three months, commencing on 26 October 2016. That sentenced was imposed by the Central Local Court. An appeal to this Court was dismissed.

24. On 26 October 2016 he was found in possession of housebreaking implements for which he was fined. On 21 March 2017 he drove a motor vehicle during a period of disqualification for which he was fined and incurred a further period of disqualification. On 25 March 2017 he committed another driving whilst disqualified offence for which he was again fined and given a further period of disqualification.

25. On 4 April 2017 he drove a motor vehicle during a period of disqualification. The records before me show two inconsistent results. One imposed by the Liverpool Local Court on 1 May 2017 and the other imposed by the same Court on 19 June 2017. The latter ended up with a period of imprisonment for 12 months, commencing on 20 June 2017. On 25 March 2017 he was found guilty of goods in personal custody suspected of being stolen for which he received a $500 fine.

26. Between 26 September 2017 and 9 November 2017 he was found guilty of supplying a prohibited drug being a commercial quantity of the prohibited drug. He was sentenced to imprisonment for three years and six months with a non-parole period of 18 months, commencing on 9 November 2017 and concluding on 8 May 2019. There is also a Community Corrections Order (“CCO”) for a period of 20 months imposed at the same time. One must note a very generous period on parole for a three year and six months sentence. He was entitled to be on parole for a period of two years. There was a finding of special circumstances. However, whilst on parole for that offence he committed the current offences, the ones for which he appears before me, which were not only a breach of the parole order, but also a breach of the CCO. The offender’s criminal record does not permit me to give him any leniency. It shows a protracted period of ignoring the criminal law of this State.

When Should this Sentence Commence?

27. The offender has been in custody since 15 October 2020. His parole for the earlier offence was revoked such that it formally ended on 8 May 2021. I have a discretion as to when to commence the sentences which I have to impose at any time between 15 October 2020 and 8 May 2021. It appears that the only reason for the revocation of parole was the commission of these offences and therefore the exercise of discretion looms large. Had he not committed these offences it is possible that he would not have committed any offences prior to the expiration of the parole period on 8 May 2021. Because of the size of the methamphetamine which he possessed on 15 October 2020 and because of the size of the GBL which he possessed on 15 October 2020 the offender is guilty of the crimes of supply, because it is deemed under the Drug Misuse and Trafficking Act 1985.

Seriousness

28. In the offender’s oral evidence and in a letter which he wrote to the Court, which is Exhibit 1, the offender says a lot about his moral culpability for his crimes. In essence the offender says that because of his lengthy history of drug use or drug abuse and his lengthy periods of incarceration he is known to be a drug user and former drug supplier and therefore he is stereotyped, such that when released from incarceration he is put into Housing Commission accommodation where many others seek him out to supply them with drugs and therefore the stereotypification of him leads to his essentially being forced to take up supplying drugs as well as drug use and drug addiction. He points out, for example, that the drugs in the Woolworths bag found in the back of the cab were to be taken by the taxi driver, Mehmet, and were not for him, but the drugs in the black laptop bag were for his own use, albeit that there were some indicia of supply in the black laptop bag. It is also clear from the offence which the offender asks me to take into account on the Form 1 that he would supply small quantities of drugs to those who knew him. He maintains that he was not doing so to make money for himself, but would merely act as a service for those who might depend upon him.

29. Nevertheless it is patently clearly from what he admits, and in particular from Exhibit C, a log of the CCTV comings and goings from room 7305 of the Meriton Suites in Liverpool Street, Sydney between 14 and 15 October 2020 that the offender was engaged in assisting Saffo in his obvious drug trafficking. It may be because of his assistance to his long term acquaintance Saffo that he was getting his drugs at a reduced rate and could get drugs at reduced rates for his own friends or acquaintances. Nevertheless he was still actively involved in drug trafficking, albeit that there is no suggestion that he was doing so for any serious financial gain. The offender in his letter to me and his evidence points out that he knows very well the drastic effects of drug trafficking on the community, how it ruins lives and ruins families and ruins careers, yet he persists in both using and getting himself involved in the supply of illicit drugs.

Psychiatric condition

30. There is before me a psychological report from Mr Chafic Awit. That tells me what is common ground, that whilst in custody the offender has been diagnosed by Corrective Services health personnel as suffering from schizophrenia, bipolar disorder and depression. He has been on Olanzapine, antipsychotic medication, for the last nine years. When not in custody the offender has been granted the Disability Support Pension. He became entitled to that in 2013. What the cause of the psychotic illness is unknown. It may well have been caused by the offender’s drug use. When he commenced using those illicit substances at the age of 29 he started using cocaine and later methamphetamine. It appears he still has been using methamphetamine and GBL since at least in his last discharge from custody. Documentation from the Parole Board indicates that the offender was found to have been using methamphetamine shortly before testing on 5 February 2020, that is within seven months after his release on parole on 9 July 2019 he was again using methamphetamine. Unfortunately after 5 February 2020 no drug testing was carried out by Community Corrections, because of the COVID-19 pandemic. According to a breach report, the offender’s reporting by way of telephone interviews following the COVID-19 outbreak was inconsistent, although the focus of his supervision was designed to monitor his drug use and his antisocial peer alliances.

Consideration

31. The offender has decided that because after his release on parole he must remain in Australia and he relapses to drug use and crime that the best thing for him to do is to return to Turkey. However, he has not indicated anything to show how he intends to do that. In his letter to me he asks for a fixed term of imprisonment so that he could, when released from custody, leave Australia immediately to return to Turkey. Unfortunately the law does not permit me in the circumstances of a case of this nature to make such an order. I shall impose a non-parole period, but I shall maintain the statutory nexus between the head sentence and the non-parole period. It is clear that the finding of special circumstances made in respect of the last prison sentence failed its objective. The offender may get better treatment and be able to attend more courses and try to rehabilitate himself further by courses in custody.

32. It is common ground that this case is below the mid-range of objective circumstances as far as both the principal offences are concerned. The matter on the Form 1 is only an attempt to supply, there is no suggestion that the supply ever occurred, because police intervened by arresting the offender when he left the Meriton Apartments and was returning to his home at Eastlakes. The concerning thing is the amount of the GBL which he was carrying between the Meriton Apartments in Liverpool Street and his home at Eastlakes. If he were to leave that with Mehemet that would indicate that he was supplying that drug to Mehmet perhaps at the behest of Saffo. I am entirely in his hands, of course, in that regard. His frank admission of lying to the police does not persuade me that I should give what he says great weight. I am concerned that his involvement in drug trafficking might be greater than he would have me believe, but I cannot find against him unless it is proved beyond reasonable doubt, and clearly his oral evidence raises some doubt. However, the Crown accepts these cases are below the mid-range of objective seriousness. As I have said, what is concerning is prior offending of the same type, a lengthy criminal history which prevents the exercise of any leniency, and, thirdly, the amount of the GBL which he was carrying shortly prior to his arrest.

33. In respect of the sequence 1 offence, the deemed supply of 59.74 grams of methylamphetamine I start with a head sentence of two years. I discount that by 25% because of the offender’s plea of guilty at the earliest available opportunity. That leaves a head sentence of one year and six months. However, I intend to impose an aggregate sentence.

34. In respect of sequence 2, the deemed supply of the commercial quantity of GBL. I start with a head sentence of five years. I discount that by 25% which reduces the sentence to three years and nine months. Because there is a standard non-parole period I am required to state what non-parole period I would impose. Reducing three years and nine months by 25% but rounding it down in favour of the offender, that indicates a non‑parole period of two years and nine months with an additional term of one year. In making that assessment I have taken into account the matter on the Form 1.

35. I turn then to consider the aggregate sentence. Of course, the two head sentences put together amount to a sentence of five years and three months, I have reached the view that the appropriate head sentence is four years, which leads me to find the appropriate non-parole period to be three years. The question then is when should the sentence commence? I have formed the view that I should commence the sentence on 1 January 2021, allowing a period from 15 October to 31 December 2020 as referrable to the earlier sentence and starting the new sentence on 1 January 2021.

Sentence

36. Vural Can, on the charge that on 15 October 2020, at Eastlakes in this State, you did possess for the purpose of supply a prohibited drug, namely, 59.74 grams of methylamphetamine you are convicted. On the charge that on 15 October 20209, at Eastlakes in this State, you did possess for the purpose of supply a prohibited drug, namely, 3.356 kilograms of Gamma-Butyrolactone you are convicted. I sentence you to imprisonment. I set a non-parole period of three years, commencing on 1 January 2021 and expiring on 31 December 2023. I impose a further period of imprisonment of one year to commence upon the expiration of the non-parole period and expiring on 31 December 2024. The total sentence is, therefore, four years, comprising a non-parole period and the balance of the sentence. I have not found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. I have taken into account the matter on the Form 1 in respect of count 2. The sentence is an aggregate sentence.

For count 1 the head sentence was one year and six months.

For count 2 the head sentence was three years and nine months with a non-parole period of two years and nine months.

BRAID: Your Honour, there’s just one further matter, a consent order for the confiscation of a mobile phone.

HIS HONOUR: I don’t know why it’s in this form. It can’t be forfeited to the State. It means nothing. Forfeited to the Crown. If you want to be republican about it you would have to make it the State of New South Wales to comply with the Crown Proceedings Act.

By consent orders of short minutes of order which will be placed with the papers.

Decision last updated: 31 March 2022