R v Yavuz
[2015] ACTSC 329
•15 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Yavuz |
Citation: | [2015] ACTSC 329 |
Hearing Date(s): | 14 May, 15 June, 6 August 2015 |
DecisionDate: | 15 October 2015 |
Before: | Burns J |
Decision: | See [24] – [47] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – drug offences – importing a marketable quantity of 3, 4-methylenedioxymethamphetamine – importing a marketable quantity of amphetamine – importing a marketable quantity of cocaine. |
Legislation Cited: | Crimes Act 1914 (Cth), s 16A Criminal Code 1995 (Cth), s 302.7 |
Cases Cited: | R v Karan [2013] NSWCCA 53 |
Parties: | The Queen (Crown) Emin Yavuz (Offender) |
Representation: | Counsel Mr T Shepherd (Crown) Mr J Stratten SC (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Kamy Saeedi (Offender) | |
File Number(s): | SCC 161 of 2014 |
BURNS J:
Emin Yavuz, on 14 May this year, you entered pleas of guilty to 21 counts of importing marketable quantities of border controlled drugs contrary to s307.2 of the Criminal Code 1995 (Cth). The maximum penalty for this offence is 25 years' imprisonment, a fine of $850,000.00 or both. On the same day, you entered pleas of guilty to two counts of importing a border controlled drug, namely 3, 4-methylenedioxymethamphetamine (MDMA) contrary to s 307.3 of the Criminal Code. This offence carries a maximum penalty of 10 years' imprisonment, a fine of $340,000.00 or both.
Finally, you have asked that, in sentencing you on the first count of importing a marketable quantity of a border controlled drug, I take into account three offences of dealing with identification information, namely a false New South Wales driver’s licence in the name of Stephen Angello, for the purpose of facilitating the commission of an indictable offence against a law of the Commonwealth. You also asked that I take into account two offences of a similar nature relating to a false New South Wales drivers licence in the name of Joseph Bolovski when I sentence you on the second count of importing a marketable quantity of a border controlled drug. The maximum penalty for these offences to be taken into account is five years' imprisonment, a fine of $21,250.00 or both.
Guilty pleas
Your guilty pleas were not entered at an early time. You initially pleaded not guilty to these charges and, on 17 July 2014, you were committed for trial to this Court. Your trial was listed to commence on 8 June this year and four weeks of court time was allocated. On 20 April this year, your lawyer indicated that the matter would resolve without a trial but it was not until 14 May that you were arraigned on a fresh indictment and you entered your present pleas.
The prosecution case against you is very strong but not so overwhelming that I should draw the inference that your pleas simply reflect your recognition of the inevitable, although I have no doubt that the strength of the Crown case was a significant consideration in your decision to change your pleas. I accept that your pleas demonstrate a, albeit belated, willingness to facilitate the course of justice and save the community the cost of a lengthy trial. You have made statements to this Court and to others expressing contrition for these offences and I accept that your pleas demonstrate an element of remorse, although not absolute. I will return to this in a moment.
It is sufficient, for present purposes, to note that I will reduce the otherwise appropriate sentences by approximately five per cent to recognise your pleas of guilty. A much higher reduction in the order of 20 to 25 per cent could have been anticipated if you had entered early pleas of guilty.
The offences
The facts of these offences are set out at length in an Agreed Statement of Facts which was tendered at the sentence hearing. It is sufficient to note that, between 28 June 2013 and 9 September 2013, you used false New South Wales driver’s licences as identification to lease post office boxes at Canberra City, Western Creek, Belconnen, Dickson and Mawson post offices. You used the internet to purchase border controlled drugs being MDMA, cocaine and amphetamine from vendors in China, the Netherlands and the USA and arranged to have those drugs imported into Australia by mail and delivered to the post office boxes you had leased and also to residential addresses in Canberra to which you had access. In total, seven different post office boxes were used and three residential addresses.
All of the offences involve the importation of MDMA except for counts 12, 17 and 18, which involved cocaine, and count 13 which involved amphetamine. The drugs were mailed to you under five different aliases. I note that counts 3 and 4 involve the importation of less than a marketable quantity of drugs. The marketable quantity for MDMA as a border controlled drug is 0.5 grams up to 500 grams. The marketable quantity for cocaine as a border controlled drug is 2 grams up to 2,000 grams and the marketable quantity for amphetamine as a border controlled drug is 2 grams up to 750 grams.
I will list the weights of drugs involved in each count. My reference to weights of drugs in these reasons will be to the pure weight of the drug unless I specify otherwise:
(a)Count 1 involved the importation of a pure weight of 37.9 grams of MDMA;
(b)Count 2 involved 38.2 grams of MDMA;
(c)Counts 3 and 4 involved 49.7 and 49.4 grams of MDMA as a gross admixture with the pure weight being unspecified;
(d)Count 5 involved 38.3 grams of MDMA;
(e)Count 6 involved 18.9 grams of MDMA;
(f)Count 7 involved 8.4 grams of MDMA;
(g)Count 8 involved 15.1 grams of MDMA;
(h)Count 9 involved 19.4 grams of MDMA;
(i)Count 10 involved 3.7 grams of MDMA;
(j)Count 11 involved 15.5 grams of MDMA;
(k)Count 12 involved 18.8 grams of cocaine;
(l)Count 13 involved 3.47 grams of amphetamine;
(m)Count 14 involved 22.1 grams of MDMA;
(n)Count 15 involved 20.8 grams of MDMA;
(o)Count 16 involved 38.2 grams of MDMA;
(p)Count 17 involved 64.4 grams of cocaine;
(q)Count 18 involved 64 grams of cocaine;
(r)Count 19 involved 37.4 grams of MDMA;
(s)Count 20 involved 37.6 grams of MDMA;
(t)Count 21 involved 6.94 grams of MDMA;
(u)Count 22 involved 38.3 grams of MDMA; and
(v)Count 23 involved 37.9 grams of MDMA.
The total weight of MDMA imported was 434.64 grams, coming close to the commercial quantity threshold of 500 grams. The total weight of cocaine imported was 147.2 grams and the total weight of amphetamine imported was 3.47 grams. The total monetary value of the MDMA and cocaine seized was estimated by the police to be between $234,000.00 and $273,000.00.
Consideration
In arriving at an approximate sentence for each offence, I adopt the principles expressed by the New South Wales Court of Criminal Appeal in the matter of R v Karan [2013] NSWCCA 53 and in particular:
(w)first, that your criminality must be assessed by reference to your involvement in the steps taken to effect the importation;
(x)secondly, that, although the weight of the drug imported is not a principal factor in fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of the drug imported;
(y)thirdly, that it should be inferred that a person who is importing drugs is doing it for profit unless there is acceptable evidence to the contrary;
(z)fourthly, that the difficulty of detecting importation offences and the great social consequences that follow is such that general deterrence is to be given chief weight on sentence to signal to would be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment, and involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served; and
(aa)fifthly, that the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence.
I must sentence you in accordance with Part 1B of the Crimes Act 1914 (Cth) and, specifically, I must take into account those matters listed in s 16A (2) to the extent that they are relevant and known to me.
It is critical to arriving at an appropriate sentence that I determine your role in these offences. There is no evidence that you acted with others as part of some criminal organisation. Your counsel suggested that you should be regarded as a sole trader. I agree with this description. I am satisfied that you performed a principal role in these offences in that you instigated the importation of the drugs by ordering them online and arranging for them to be mailed to Australia.
You claimed that your principal purpose in importing these drugs was for your personal use. I do not accept that. The number of transactions involved, the quantity of drugs imported and the value of these drugs satisfy me beyond reasonable doubt that your principal purpose was monetary gain. It is quite clear from the evidence that you stood to make a considerable profit from your crimes. To the extent you suggested otherwise, I reject your evidence. Your unwillingness to be perfectly frank about your motives suggests that you are not completely remorseful. I am satisfied that you have attempted to minimise your culpability with respect to these offences.
Sentencing in this case is complicated by the fact that there are 21 charges each concerning a separate importation of a separate quantity of drug. If there had been only three charges, one for each of the separate types of drug imported, it would have been a simpler process, particularly to arrive at an aggregate sentence that reflected the total criminality involved in these offences. The approach that I will take is to divide the charges into six categories for sentencing purposes. The first category will be the higher range offences for importing a marketable quantity of MDMA. The second category will be the mid-range offences for importing a marketable quantity of MDMA. The third will be the lower range offences for importing a marketable quantity of MDMA. The fourth category will be the offences for importing non marketable quantities of MDMA. The fifth category will be the amphetamine offences and the sixth category will be the cocaine offences. The first category includes counts 1, 2, 5, 16, 19, 20, 22 and 23. The second category includes counts 6, 8, 9, 11, 14 and 15. The third category includes counts 7, 10 and 21. The fourth category includes counts 3 and 4. The fifth category is count 13 and the sixth category includes counts 12, 17 and 18.
In arranging the offences in this way for sentencing purposes, it should not be inferred that I have determined sentences for the various offences based solely on the weight of the drug imported but, as all other factors are essentially equal, it appears to me that it would be wrong, in principle, to effectively ignore the varying quantities of drug imported and to impose the same sentences for all offences carrying the same maximum penalty.
In setting appropriate sentences I take into account the maximum penalty for each offence, which serves as a yardstick and a basis for comparison between the present offence and the worst case or category of that offence. The maximum penalties applicable to the present offences demonstrate that they are considered to be very serious offences.
I note that you have a prior conviction for robbery in 2009, for which you were placed on a Good Behaviour Order and ordered to perform 208 hours of community service. While the present offences are of a different nature, it cannot be said that you were a person of prior good character before these offences.
[Redacted for legal reasons].
I note that you are currently 26 years old and that you were between 23 and 24 years old at the time of these offences. You apparently have supportive relationships with your close family. Before you were remanded in custody, you resided with your mother and you intend on returning to her residence when you are released. You have been periodically employed in a family business in the past, and also in the information technology sector, and work is said to be available to you on your release. From time to time, you have also been on Centrelink benefits.
You told the author of the Pre Sentence Report that you commenced using cannabis when you were 17 and using MDMA and cocaine when you were 21. There is little evidence to support you having a serious drug addiction and, for the reasons I have already given, I am satisfied that monetary gain was your predominant motive for committing these offences.
The author of the Pre Sentence Report assessed you as at low risk of reoffending. Such an assessment must be taken with caution where an offender has participated in the importation of drugs for profit, as that motive will continue to exist. I am prepared, however, to find that you have good prospects for rehabilitation, bearing in mind your age, the relatively short period during which these offences were committed, your relatively brief criminal history other than these offences, and the strong family support available to you.
A number of personal testimonials were tendered which speak of your positive personal traits and your potential to be a productive and law-abiding citizen. I have taken those testimonials into account in determining your prospects for rehabilitation.
The dominant sentencing considerations for this type of offence are deterrence and punishment. As I am satisfied that you have good prospects for rehabilitation, personal deterrence is not a prominent sentencing consideration. It is necessary, however, to impose sentences that make it clear to others who may be minded to commit this type of offence that such offences will result in stern punishment. In my opinion, nothing less than an immediate term of imprisonment will be appropriate in order to achieve the ends of sentencing.
Sentence
On Count 1, you are convicted and sentenced to two years and 10 months' imprisonment commencing on 15 March 2015 and expiring on 14 January 2018. In setting that sentence, I take into account the scheduled offences to which I have referred.
On Count 2, you are convicted and sentenced to two years and four months' imprisonment commencing on 15 November 2015 and expiring on 14 March 2018. Again, I take into account the scheduled matters to which I have referred.
On Count 5, you are convicted and sentenced to two years and four months' imprisonment commencing on 15 January 2016 and expiring on 14 May 2018.
On Count 16, you are convicted and sentenced to two years and four months' imprisonment commencing on 15 March 2016 and expiring on 14 July 2018.
On Count 19, you are convicted and sentenced to two years and four months' imprisonment commencing on 15 May 2016 and expiring on 14 September 2018.
On Count 20, you are convicted and sentenced to two years and four months' imprisonment commencing on 15 July 2016 and expiring on 14 November 2018.
On Count 22, you are convicted and sentenced to two years and four months' imprisonment commencing on 15 September 2016 and expiring 14 January 2019.
On Count 23, you are convicted and sentenced to two years and four months' imprisonment commencing on 15 November 2016 and expiring on 14 March 2019.
On Count 6, you are convicted and sentenced to one year and 10 months' imprisonment commencing on 15 July 2017 and expiring on 14 May 2019.
On Count 8, you are convicted and sentenced to one year and 10 months' imprisonment commencing on 15 September 2017 and expiring on 14 July 2019.
On Count 9, you are convicted and sentenced to one year and 10 months' imprisonment commencing on 15 November 2017 and expiring on 14 September 2019.
On Count 11, you are convicted and sentenced to one year and 10 months' imprisonment commencing on 15 January 2018 and expiring on 14 November 2019.
On Count 14, you are convicted and sentenced to one year and 10 months' imprisonment commencing on 15 March 2018 and expiring on 14 January 2020.
On Count 15, you are convicted and sentenced to one year and 10 months' imprisonment commencing on 15 May 2018 and expiring on 14 March 2020.
On Count 7, you are convicted and sentenced to one year and four months' imprisonment commencing on 15 December 2018 and expiring on 14 April 2020.
On Count 10, you are convicted and sentenced to one year and four months' imprisonment commencing on 15 January 2019 and expiring on 14 May 2020.
On Count 21, you are convicted and sentenced to one year and four months' imprisonment commencing on 15 February 2019 and expiring on 14 June 2020.
On Count 3, you are convicted and sentenced to 11 months' imprisonment commencing on 15 August 2019 and expiring on 14 July 2020.
On Count 4, you are convicted and sentenced to 11 months' imprisonment commencing on 15 September 2019 and expiring on 14 August 2020.
On Count 13, you are convicted and sentenced to one year and four months' imprisonment commencing on 15 May 2019 and expiring on 14 September 2020.
On Count 12, you are convicted and sentenced to one year and four months' imprisonment commencing 15 June 2019 and expiring on 14 October 2020.
On Count 17, you are convicted and sentenced to one year and 10 months' imprisonment commencing on 15 February 2019 and expiring on 14 December 2020.
On Count 18, you are convicted and sentenced one year and 10 months' imprisonment commencing on 15 April 2019 and expiring on 14 February 2021.
The aggregate term of imprisonment that I have imposed is one of five years and 11 months commencing 15 March 2015 and expiring on 14 February 2021. I set a non-parole period of three years and six months commencing on 15 March 2015 and expiring on 14 September 2018.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 28 October 2015 |