R v Yavuz (No 2)
[2020] ACTSC 248
•21 September 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Yavuz (No 2) |
Citation: | [2020] ACTSC 248 |
Hearing Date: | 26 May 2020 |
DecisionDate: | 21 September 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [147] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – importation of commercial quantity of border-controlled drug – joint enterprise – parity – offences committed while in custody – history of similar offending |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 72 Crimes Act 1914 (Cth) ss 16A, 16B, 19AB, 19AD and 19AL Judiciary Act 1903 (Cth) ss 68 and 79 |
Cases Cited: | Adams v The Queen [2008] HCA 15; 234 CLR 143 Assi v The Queen [2006] NSWCCA 257 Yip v The Queen [2017] VSCA 231 |
Parties: | The Queen (Crown) Emin Oguz Yavuz (Offender) |
Representation: | Counsel D Renton with T Jones (Crown) M Dennis SC (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Sydney Criminal Law Specialists (Offender) | |
File Number: | SCC 83 of 2019 |
LOUKAS-KARLSSON J:
Introduction
On 10 March 2020, Emin Oguz Yavuz (the offender) pleaded guilty to an offence of jointly importing a substance, that substance being a border-controlled drug, namely 3,4-methylenedioxymethamphetamine (MDMA), and the quantity imported being a commercial quantity, contrary to s 307.1(1) of the Criminal Code 1995 (Cth) (Criminal Code) and by virtue of s 11.2A of the Criminal Code. The relevant dates of the offending were between about 13 November 2017 and 30 November 2017.
The maximum penalty for this offence is life imprisonment, 7,500 penalty units, or both.
It was agreed between parties that the basis of the plea was that, while the offender was reckless as to the exact quantity to be imported, he knew it was at least a commercial quantity of MDMA.
Disputed & Agreed Facts
Originally, this matter was set down for a disputed facts hearing. The factual disputes were, however, largely resolved by the parties when the matter returned to Court on 26 May 2020. In oral submissions, parties engaged in further discussions on the inferences to be drawn from the agreed facts in relation to the offender’s role in the enterprise and the finance of the importations, ultimately coming to agreement on the remaining issues (see T 1-20).
The agreed facts may be summarised as follows.
The offender pleaded guilty to Count 2 on the Indictment dated 6 June 2019. Count 2 related to a consignment that arrived in Sydney from the United Kingdom on 30 November 2017 via air cargo (Consignment 2). The consignment was intercepted by the Australian Border Force (ABF) on that day and was found to contain 1,771 grams of pure MDMA. This is a commercial quantity of MDMA.
The consignment was posted on 24 November 2017 with the contents described as “camping pans set”. The consignment was addressed to Michael Foster at the Australian National University (ANU); Michael Foster was not a student or staff member at the ANU at this time. One of the co-offenders, Mr Bilal Omari, was an employee of the ANU during the relevant period, and the co-offenders had agreed the consignment would be delivered to the ANU.
Between 13 November 2017 and 30 November 2017, the offender engaged in a number of telephone conversations with co-offenders, Mr Youssef Jabal, Mr Bilal Omari and Mr Peter Poulakis, in relation to the consignment. These conversations involved discussions related to sourcing of the drug; finance for the operation; and the planned collection of the consignment.
The prosecution summarised, in the agreed facts, the role of the offender and co-offenders as follows:
(a)The offender – Directed the activities of the syndicate.
(b)Mr Poulakis – Converted the money provided by Mr Jabal into Bitcoin and ordered the consignment from an unknown person, known as ‘Sock’, on the internet.
(c)Mr Omari – Assisted Mr Poulakis and was to be responsible for the collection of the consignment.
(d)Mr Jabal – Provided the money for the enterprise.
Counsel for the offender took issue with the characterisation of the offender as “directing” the activities. It was agreed in oral submissions that, at times, the offender took on an organisational role and engaged in “directional type behaviour”; it was also agreed that, at times, Mr Poulakis and Mr Omari engaged in furtherance of the enterprise with little or no input from the offender. The prosecution accepted that the offender and Mr Poulakis were equivalent in their moral culpability for the offending and were both “at the top” of the joint enterprise (T 19-20).
During the relevant period, the offender was in custody at the Alexander Maconochie Centre (AMC) as a sentenced offender for unrelated, but similar offending.
Course of Conduct
The offender was originally charged with a further count of jointly importing a marketable quantity of MDMA between 28 August 2019 and 6 December 2019. This charge related to the importation of a consignment containing 452.8 grams of MDMA that arrived in Australia from Germany on 3 November 2017 (Consignment 1). All co-offenders were involved in the importation of this consignment, in the same roles as described above. The modus operandi was similar, with the consignment addressed to a fictitious person at the ANU.
This charge was discontinued by way of notice filed on 5 June 2020. Parties agreed, however, that the conduct relating to this charge, spanning from August to December 2017, would be considered in sentencing the offender for the current offence. The factual background relating to that consignment is also contained in the Agreed Facts. The offence, therefore, is to be considered as a course of conduct, on that basis: Prosecution Written Submissions at [3]; Defence Written Submissions at [15].
Financing of the Importations
There had been some disagreement around the offender’s role in financing the importations (T 3.9-11). There was ultimately broad agreement on these issues as between the parties. The Court finds the following in respect of the finance for the importations:
(a)That Mr Jabal provided funding to the offender at least some of which was used to finance the importations; these funds were monies owed by Mr Jabal to the offender.
(b)That the precise quantum of these funds flowing from Mr Jabal to the offender is unknown.
(c)That whether or not the whole, or only some, of the funds were used for the importations is also unknown.
(d)That the total purchase price of the importation is unknown.
(e)That, whilst there is a reasonable possibility that other parties have assisted with the financing of the importations, this is a matter the offender cannot positively establish on the balance of probabilities.
(f)That, whilst the offender participated in financing the importations, the quantum and proportion of such funding is unknown.
Principles of Sentencing for Commonwealth offences
The principles of sentencing for Commonwealth offences are contained in Part 1B of the Crimes Act 1914 (Cth) (Crimes Act). Section 16A(1) states that a sentence must be of a “severity appropriate in all the circumstances of the offence”. A non-exhaustive list of factors to be taken into account are contained in s 16A(2).
It was submitted by the prosecution and correctly conceded by defence that the only appropriate sentencing option in this case is a sentence of immediate imprisonment with a non-parole period.
In Bui v The Queen [2015] ACTCA 5 at [41] (Bui), the ACT Court of Appeal noted the following principles relevant to the sentencing of drug traffickers:
(a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell (2002) 128 A Crim R 44 at 50; [33].
(b) While, as decided in Wong v The Queen at 609; [67]-[70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan (2004) 147 A Crim R 430 at 438; [34].
(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly (2002) 133 A Crim R 26 at 30; [20]: R v Day (1998) 100 A Crim R 275 at 277.
In the prosecution’s submission, similar sentencing considerations apply in relation to the Commonwealth offence of attempting to import a commercial quantity of a border-controlled drug, citing R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at [72] (Nguyen & Pham) and Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong).
The principles of general deterrence and denunciation are principal considerations when sentencing for drug trafficking offences. The prosecution submitted at [19]:
These considerations will generally outweigh subjective circumstances, particularly in the determination of a total sentence, and stern punishment will be warranted in almost every case. This is because of the difficulty in detecting offending conduct and the enormous social consequences that flow from the trafficking of drugs within Australia: Parris v R [2013] NSWCCA5 at [35] and Wong v R (2001) 207 CLR 584. General and specific deterrence loom particularly large in this case.
Given the maximum penalty for this offence, the sentence imposed must be condign and necessarily reflect the degree to which the offender’s conduct transgresses the legislative intent to suppress the illicit traffic in prohibited drugs: R v To [2007] NSWCCA 200; 172 A Crim R 121 at [12], Parry v The Queen [2003] WASCA 222 at [39], and R v Peel (1971) 1 NSWLR 247 at 262.
General deterrence is an important consideration for offending of this type: R v Combey (Unreported, Victorian Court of Criminal Appeal, Starke, Anderson and Fullagar JJ, 5 February 1980), Wong, DPP (Cth) v El Karhani (1990) 21 NSWLR 370; 51 A Crim R 123, R v Tang, Dang and Quach (1998) 3 VR 508, and Mazzitelli v The Queen [2002] NSWCCA 436; 135 A Crim R 132 at [71].
The offender correctly conceded that issues of both general and specific deterrence are important considerations in the sentencing exercise.
Objective Seriousness
The Offender’s Role
An offender’s role and level of criminality are important components in determining the sentence to be imposed together with the weight of the drugs involved: see Bui.
In Paxton v The Queen [2011] NSWCCA 242; 219 A Crim R 104 at [135], it was underlined that an offender’s role is not to be determined by the use of short-hand labels but rather by assessing, to the extent that the evidence allows, what his or her actual involvement was. General descriptions of types of participation must not obscure the assessment of the offender’s particular actions: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [19].
In relation to the offender’s role in the joint commission, the following findings of fact are open to be made on the evidence (see T 1-20):
(a)The offender was involved, with Mr Omari and Mr Poulakis, in the joint commission to import at least a commercial quantity of a prohibited drug into Australia, from about July 2017 (noting [12]-[13] regarding the course of conduct).
(b)The offender was aware of the identity and role of ‘Sock’, the overseas provider of the consignments.
(c)The offender was a common link between Mr Poulakis on the one hand and Mr Omari and Mr Jabal on the other hand. He facilitated communication and a degree of cooperation between them.
(d)The offender was aware of the decision to use the ANU campus as the delivery address for the consignment.
(e)The offender tasked Mr Omari with communicating to Mr Jabal that he wanted to recover $50,000 from money he had invested in a property development being undertaken at Weetangera by Platinum Constructions (the property development of which Mr Jabal was a director and shareholder).
(f)On 13 September 2017, the offender communicated directly to Mr Jabal that he wanted to recover the $50,000 investment during a visit to the AMC by Mr Jabal and Mr Poulakis.
(g)The offender’s authority and influence were such that Mr Jabal immediately complied with the demand for money.
(h)The offender tasked Mr Poulakis with liaising with Mr Jabal and collecting the money from him in cash.
(i)The offender expected and received regular progress reports from Mr Poulakis about the money and whether it had been collected from Mr Jabal.
(j)The offender discussed with Mr Poulakis the purchase of Bitcoin. He expected and received regular progress reports from Mr Poulakis regarding the purchase of Bitcoin.
(k)The offender expected and received regular updates about ‘Sock’s’ activities and whether he had dispatched various consignments. In particular, the offender was informed immediately when consignments were dispatched.
(l)The offender discussed with Mr Poulakis and Mr Omari the collection of the first consignment from the ANU.
(m)The offender expected and received regular updates about the collection of the first consignment.
(n)The offender had sufficient influence and authority to remonstrate with Mr Poulakis and Mr Omari regarding Mr Omari’s failure to collect the first consignment.
(o)The offender had sufficient authority and influence to remonstrate with Mr Poulakis about his failure to ensure ‘Sock’ was punctual in arranging the consignments.
(p)The offender expected and received regular updates about the status of the second consignment.
The offender’s counsel accepted that the role of the offender must be “regarded as significant”.
Quantity and Type of Drug
The prosecution submitted that the objective seriousness of drug importation offence will be “heavily, although not definitively,” informed by the quantity of the drugs involved: Written Submissions at [12]. The prosecution accepted that the offender was not aware of the precise quantity that was being imported, but that he was involved in a joint enterprise to import at least a commercial quantity.
The Criminal Code adopts a quantity-based penalty regime and makes no relevant distinction between border-controlled drug types. There is no longer any judicially constructed gradation of penalties based on the perceived harm caused by different types of drugs: Adams v The Queen [2008] HCA 15; 234 CLR 143 at [10].
The prosecution submitted that the evidence suggests that the offender intended to bring further, larger consignments into Australia and would have done so, had it not been for police intervention. In that regard, the prosecution pointed to a conversation between the offender and Mr Poulakis on 13 November 2017. In that conversation, Mr Poulakis told the offender about a conversation he had with ‘Sock’, that he had “buttered him up” and that there were “some positives there for the future” regardless of that dilemma”. The prosecution submitted that it is to be implied that Mr Poulakis was indicating to the offender that ‘Sock’ was able to supply prohibited drugs in the future. In my view, the evidence in this respect is not established to the requisite standard of beyond reasonable doubt.
Counsel for the offender noted that the commercial quantity for MDMA commences at 500 grams, and that the quantity in the present matter is 1,771 grams. The offender submitted, therefore, that the quantity is “in the lower range in comparison to many matters of a similar nature”.
Subjective Circumstances
The character, antecedents, age, means, and physical or mental condition of an offender are a relevant sentencing consideration under s 16A(2)(m) of the Crimes Act.
Psychological Assessment
The offender tendered a psychological report of Mr Sam Borenstein, clinical psychologist, dated 9 May 2020. The report included the following information in relation to the offender’s background.
The offender was born in Melbourne to parents of Turkish descent. He had an older brother, 18 months his senior, and a younger brother, 2 years his junior. The older brother died in an accident in Iraq in 2017; the exact circumstances of his death are unknown to the offender. The offender’s younger brother is married with one child and works as a manager at a tyre-fitting company. The offender’s parents separated in 2001, and his father is now re-married, with two sons from that marriage.
The offender spent much of his childhood and formative years living in regional NSW. He reported that these towns had minimal cultural diversity, which was difficult for the family. He reported that his parents often argued, resulting in frequent occasions of domestic violence.
The offender’s father relocated to Turkey for 12 months following the separation, after which the offender’s mother moved to Canberra, when the offender was aged 14. The offender’s father permanently relocated to Turkey around 2017, not long after the offender’s brother died. This represented a significant loss to the offender; he reported that this impacted on his mental state and left him feeling exposed to those who he owed debts.
The offender left school following Year 10 and later completed Years 11 and 12 at Canberra TAFE. He has worked within family kebab shops and restaurants for a number of years and also worked for a telecommunications company for a period of one year.
The report included the following psychological assessment and opinion:
Mr Yavuz’s diagnosis is substance use disorder and gambling disorder, both in sustained remission, the latter due to incarceration.
Mr Yavuz says he successfully abstained from taking drugs during his bail between 2013 and 2015, but he continued to gamble between 2013 and 2015, which compounded his gambling debt which, together with his drug debt, made him a target.
Mr Yavuz says he entered into the initial offence … in order to repay his drug and gambling debts. Whilst in prison, Mr Yavuz’s older brother acted as a mediator, and protected Mr Yavuz from persons who demanded the debts be repaid.
Mr Yavuz’s brother died in 2017, after which Mr Yavuz felt exposed. Mr Yavuz states he reoffended in order to repay a significant drug and gambling debt, much as was the case with respect to the offence for which he has already been sentenced.
Mr Yavuz confirmed he commenced gambling at a young age with his younger brother. Mr Yavuz and his younger brother sustained significant losses and banned themselves from the casino for twelve months. Mr Yavuz returned to the casino in order to chase his losses. Mr Yavuz was also motivated to support his mother, who was functioning as a single parent.
…
Mr Yavuz relied on others to provide money to relieve desperate financial situations caused by gambling, resulting in incurring a significant debt, which Mr Yavuz states led him to enter into the offences for which he has been charged …
Mr Yavuz’s gambling disorder [is] regarded as severe and currently in remission due to incarceration.
The subject offence represents a form of gambling. …
I recommend Mr Yavuz participate in individual and group programs to address his gambling disorder and past substance use disorder. … Mr Yavuz remains at risk of relapsing into gambling without intensive individual treatment and group programs…
I take this report into account on sentence.
Sentenced Detainee Case Plan
In evidence before me is a Sentenced Detainee Case Plan dated 13 May 2020. The case plan notes that the offender is a practicing Muslim and engages with services within the AMC to support religious beliefs and practices. It reports that the offender has not had any custodial or behavioural incidents while in custody and that he engages well with custodial and civilian staff.
The case plan indicates that the offender has been employed in multiple positions while in the AMC, and he is currently employed as a cleaner. The case plan contains the following summary comments:
Mr Yavuz has progressed positively without behavioural or custodial incident since his remand in May 2015. He is polite and respectful when engaging with staff, peers and external services and has established a meaningful routine for himself within the centre. Due to identified low risk of general reoffending, Mr Yavuz is not eligible for offence specific interventions. He will continue to be encouraged to access voluntary services within the AMC and will be supported to plan for and apply for parole when appropriate. Mr Yavuz has ongoing court matters. Further sentence management planning to take place upon completion of these matters.
In relation to the offender’s subjective circumstances, counsel for the offender submitted that he first entered custody at a relatively young age, being 25 years of age. It was submitted, therefore, that the Court would “carefully consider the impact of any sentence and in particular the possibility of the overall effective sentence having a crushing effect with the accompanying risk of institutionalising the offender”.
References
In evidence before me were six references in support of the offender.
The first letter is from Mr Khalid Yamin, Vice-President of the Islamic Society of the ACT, and is undated. It includes the following:
I am aware of the charges against Emin and the guilty plea he has entered.
From my interactions with Emin within the community, I know Emin as a law-abiding citizen and a man of impeccable character. Emin is an energetic, mature, proactive and a God-fearing person who was a regular in his worship and religious commitment. Dealing with drugs and alcohol in any capacity is one of the major sins in Islam, and Emin knows this very well.
The letter goes on to state that the offender has expressed interest in volunteering within the Islamic community, and that Mr Yamin finds it “out of character” for the offender to be involved in drug offences.
The second letter, dated 9 April 2020, is from Mr Nouredine Loraibi, Imam at the Spence Mosque. It includes the following:
I have known Emin for over 6 years now … Prior to Emin’s arrest, while he was on the Transitional Rehabilitation Centre program, he was very consistent and punctual at attending the mosques as he is prepared to better himself both spiritually and mentally. …
I know that Emin is striving hard to bettering himself as I know he is remorseful for his actions that [have led] him to where he is … I have heard a lot of good things about him during this additional period that he has spent in prison with regard to taking up the responsibility to be the Imam (leader) of the Muslims in the prison …
Emin is an active, kind-hearted person … from a wonderful family. He is a person of honesty and integrity and this opinion is shared by others in the community. He is always smiling and always has a positive attitude even if absolutely nothing is going his way. Emin has expressed his interest multiple times to be involved with helping other Islamic communities/societies around Canberra and has built strong relationships with everyone in the community. I have observed his passion to help in the community, which involves assisting youths like himself, especially troubled youths, integrate in not only the Islamic community, but within the wider Australian community.
The third letter, dated 25 May 2020, is from Ms Emine Kaya, the offender’s mother. It includes the following:
Emin appears before the Court in relation to serious drug related offences and has acknowledged his guilt regarding these. I write this reference for Emin in order to provide you with a view of him from the perspective of a mother and family, and also as an assurance that my family and I are willing and able to provide Emin any form of assistance he requires to increase his prospects of rehabilitation.
…
Emin is the second of my three sons, who I raised on my own with very little support from others … I always had the fear that if I were not able to be there for [my sons], I may lose them to negative influences in society. I come from a very very strict, sheltered family life as my father was a tough man with very conservative cultural views. I always wanted a better, different life for my children, so I worked extremely hard for them to have a good life.
…
As a child and adolescent, Emin frequently felt the responsibility of wanting to provide a better life for me and his brothers. He spoke often of his desire for financial security for the family, as he felt he had a deep sense of insecurity compared to his peers. As a young adult, this drive led him to become involved with anti-social friends and partake in undesirable behaviours. He mistakenly believed that his pursuits would lead to providing a stable life for the family. This immature and ill-conceived view eventually resulted in his involvement with significant gambling and drug-related activities. …
While he has been in custody, Emin has made attempts to improve himself spiritually, physically and emotionally. I acknowledge that his current offences were committed while he was incarcerated, and he has accepted that these behaviours have been to his further detriment. Over the past two years in particular, I have seen Emin evolve into a more mature young man who has come to terms with his flaws and has made significant efforts to demonstrate his remorse for the pain and suffering he has caused me, my family and most of all, himself.
…
Upon his release from custody, Emin will reside with me and will have access to opportunities that will considerably improve his chances of success and a crime-free life. He will be able to commence employment immediately in the family hospitality business and has access to a vehicle, supportive family environment and a solid network of cultural and community ties.
I am confident that Emin has learned some very hard lessons while he has been in prison and will apply those to his future goals for a stable, crime-free lifestyle.
The fourth reference, dated 15 March 2020, is from Reverend Peta Thorpe, the chaplain at the AMC. It includes the following:
Emin has been an enormous support to me as Chaplain. In the absence of an Imam, I refer to Emin for guidance and advice regarding Islamic matters. He is the leader of the Islamic community at the AMC. I find him to be thoughtful and balanced and always willing to help. I cannot praise his contribution here at the AMC highly enough.
The fifth reference, dated 14 April 2020, is from Mr André Penders, the Education Manager at the AMC. It outlines the offender’s extensive engagement with the education unit at the AMC and includes the following:
Emin has been great in showing leadership skills with new students. He is able to explain in detail to new students what we are looking to accomplish in the course.
Emin also has the ability to make other students feel comfortable and at ease and helps to break down barriers between all the different classifications and cultures. Emin is diligent, conscientious, reliable and hardworking.
In respect of the fourth and fifth reference, the prosecution submitted that they should be afforded limited weight, as they are do not refer to the offender’s current charge.
The sixth letter, dated 24 August 2020, is from Mr Ashraf Ezzat, a member of the AMC Chaplaincy Team. It includes the following:
I am aware of Mr Emin’s charges; however, I feel and believe it is out of his current character that he could be involved in any incriminating matters.
I am also aware and sure that Mr Emin has deep regrets and sincere remorse for any implications that his incriminating charges might have caused.
In relation to this reference, the prosecution submitted that it should be afforded limited weight, as it is inconsistent with objective evidence. The prosecution submitted that, in all the circumstances, the Court would not find the offender is of good character, and that any prospects of rehabilitation are guarded. In response, in further submissions received on 17 September 2020, counsel for the offender submitted that the reference is relevant to the offender’s current character, rather than his character at the time of the offending. The prosecution submitted, in oral submissions, that there was a “glimmer” of hope in relation to the offender’s rehabilitation, considering his engagement with his faith (T 53.9-11).
It is not immediately apparent how the statement of “impeccable character” from the first reference squares with the previous offending. Nevertheless, it is clear in relation to the references that reference is made to current character. I take these references into account on sentence and note that the prospects of rehabilitation must remain guarded at this time.
Aggravating Features of the Offending
Offences Committed While in Custody
A principal aggravating factor in this case is that the offender actively participated in a joint commission to import a border-controlled drug while serving a substantial term of imprisonment for multiple offences of a similar, but less serious, nature: R v Yavuz [2015] ACTSC 329.
In this respect, at [15]-[16] of the Written Submissions, the prosecution submitted the following:
In the circumstances, the offender’s conduct can be fairly described as both brazen and arrogant. It demonstrates a disregard of, and contempt for, the law. An offence committed whilst a person is subject to conditional liberty, whether on bail or whilst subject to a good behaviour bond, community service order, periodic detention or parole, constitutes an aggravating factor for the purpose of sentence: Porter v R [2008] NSWCCA 145 at [86]. It is more aggravating when the conduct for which the offender is subject to conditional liberty is similar to that for which the offender is being sentenced: Frigiani v R [2007] NSWCCA 81 at [24].
It follows that offending conduct committed while in full time custody that was more serious in nature to the conduct for which the offender was serving that full time custody, is more aggravating than offending committed while on conditional liberty.
Counsel for the offender accepted that the fact the offence was committed while in custody for similar offending was a significantly aggravating feature. The offender did not concede, however, that an offence committed while in custody is more serious than an offence committed while on conditional liberty. The prosecution ultimately accepted that further offending while in custody or on conditional liberty is an aggravating feature and that one is not more or less serious than the other (T 21-22). They are both serious.
Committing offences while on conditional liberty, or while in custody, has been described in R v Ng [2012] WASCA 180 at [42] and The State of Western Australia v Atherton [2009] WASCA 148; 197 A Crim R 119 at [105] as a “blatant disregard for the law”. The commission of an offence while in custody or on conditional liberty is in either case an aggravating feature on sentence, and I take this into account.
Motivation of Financial Gain
The offending was motivated by financial gain. It can be inferred that the offending was motivated by profit: Nguyen & Pham at [72].
The prosecution submitted that, having regard to the active and primary role played by the offender, and his prior criminal history for similar offences, it can be established that the offence was motivated solely by financial gain.
In oral submissions, counsel for the offender sought to advance a “bold” submission. Counsel for the offender submitted that, given the word “commercial” in the charge, it is an element of the offence that the offending is motivated by financial reward, and therefore, this is not an aggravating feature of the offence. In that regard, counsel made the following submission: “It is in the nature of commerce, the gain or reward, the most typical medium of exchange is money or finance, so I say that it is an element of the offence” (T 24.19-21).
The offender submitted, with reference to NSW state legislation, that the case of Huang v The Queen [2017] NSWCCA 312 (Huang) at [54]-[55] is persuasive for the proposition “that financial gain is not aggravating in the absence of evidence to justify a finding that the financial reward was more than that inherent in the offence itself” (T 25.30-32). In Huang at [55], Davies JJ stated:
55 Wat was a case that concerned an offence of knowingly taking party in the supply of a large commercial quantity of a drug contrary to s 25(2) of the Drug Act. Ground 1 of the appeal in that case asserted error in taking into account financial gain as an aggravating factor. The Court considered that the principle from Prculovski and Farkas applied to an offence under s 25(2) in the sense that it was an inherent characteristic of the class of offence in Wat that there be financial gain. Price J said (Bathurst CJ and Campbell J agreeing) at [44]:
For an offence of knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug contrary to s 25(2) of the DMT Act, it will almost inevitably be the case that inherent characteristics of that class of offence are a level of planning and financial gain. These inherent characteristics are not to be treated as aggravating factors, unless “the financial gain or the planning is significant, that is, more than might be expected in the lowest level of offending for this type of offence” Prculovski v R [2010] NSWCCA 274 at [43] (Howie AJ, McClellan CJ at CL agreeing); Farkas v R (2014) 243 A Crim R 388; NSWCCA 141 at [62] (Campbell J, RA Hulme J agreeing).
Counsel for the offender submitted that the fact that “the legislature chose to call it commercial quantity … has got to be given some meaning” (T 27.3-9).
In response, the prosecution stated the following (T 27.18-24):
The only real dangers in applying the New South Wales cases that deal with the application of a statutory circumstance of aggravation in a completely different context to the way in which Commonwealth offences are dealt with. The relevant principles dealing with the application of financial motivation being a circumstance of aggravation are well settled in Commonwealth law.
In support of this submission, the prosecution referred to Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244 CLR 638, Nean v The Queen [2019] NSWCCA 164, R v Pham [2015] HCA 39; 256 CLR 550 (Pham), Huang and Wong. Overall, the prosecution submitted that “the weight of authority supports the conclusion that financial gain as a motivation is an aggravating circumstance” (T 28.11-12).
The prosecution summarised their submission on the issue as follows (T 30.22-33):
There is an element of circular logic in the proposition, and the baseline from the Crown’s point of view is the fact that there was a commercial motivation determines why it was that Mr Yavuz engaged in the criminality that he stands to be sentenced for. It is not being put that he did it because of addiction or for some other basis that might militate or at least demonstrate an absence of the commerciality aspect but to the extent that it aggravates, if your Honour is already of the view that there is an inherent element of aggravation built into the offence and that because he acted with that state of mind and he falls within what Parliament intended to deal with, then it may not matter much if your Honour says well it is not a circumstances that aggravates but it is a circumstance that is consistent with the aggravated nature of the offence only the commercial quantity.
Counsel for the offender stated that he did not disagree with this statement (T 30.35-38).
I note that double counting is to be avoided and this was correctly conceded by both parties. The prosecution submitted, at T 32.4-11, that:
It has traditionally been accepted that the focus of the offender for commercial gain is a relevant sentencing consideration and we would invite your Honour to likewise find. How it works in the melting pot of instinctive synthesis is perhaps an academic debate, but it is a factor that your Honour acknowledges exists and is worked into the sentencing considerations …
Relevantly, in Nguyen & Pham at [72](f), Johnson J (MacFarlan JA and Hulme J agreeing) stated:
… as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32]
In my view, it is clear on the evidence that the offender was involved in the importation of drugs for profit. That is undoubtedly a commonsense inference and, in taking that into consideration, double counting must be avoided. I will take these matters into account in the process of instinctive synthesis required for sentence.
Criminal History
An offender’s antecedents are a relevant sentencing consideration under s 16A(2)(m) of the Crimes Act.
In 2015, the offender was convicted and sentenced for 21 counts of importing marketable quantities of a border-controlled drug, contrary to s 307.2 of the Criminal Code, and 2 counts of importing a border-controlled drug, namely MDMA, contrary to s 307.3 of the Criminal Code. He was sentenced by Burns J to a term of 5 years and 11 months’ imprisonment, with a non-parole period of 3 years and 6 months.
The offender’s prior convictions in 2015 demonstrate that the present offence is not an aberration or isolated offence. The prosecution submitted therefore that greater emphasis should be placed upon the sentencing principles of retribution, deterrence and protection of society, citing Veen v The Queen (No 2) (1988) 164 CLR 465 at 177-178.
In 2009, the offender was convicted of robbery and sentenced to a two-year good behaviour order, with attached community service conditions.
Plea of Guilty – s 16A(2)(g)
The offender was charged with and entered a plea of not guilty to the charge, in its current form, in the ACT Magistrates Court on 20 November 2018. The matter was listed for trial in the ACT Supreme Court to commence on 2 March 2020. The trial ultimately did not commence on this date, in part due to ongoing negotiations between parties. The offender entered a plea of guilty on 10 March 2020.
Until recently in the ACT, offenders were not entitled to any discount on sentence for the utilitarian benefit of their plea: R v Harrington [2016] ACTCA 10; 11 ACTLR 215 at [27]. Recent amendments to the Crimes Act, however, have rendered this authority no longer relevant, as the legislation now specifies that a court must take into account the utilitarian benefit of a plea of guilty. Effective for any sentence passed following 20 July 2020, the new provision under s 16A reads as follows:
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
…
(g) if the person has pleaded guilty to the charge in respect of the offence:
(i) that facts; and
(ii) the timing of the plea; and
(iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence.
As this change in law occurred following the offender’s sentencing hearing, parties were invited to provide further submissions in relation to the plea of guilty.
The prosecution submitted that the amended legislation puts beyond doubt that the utilitarian benefit of a plea of guilty, as well as the subjective features, must be taken into account by the sentencing court. With respect to the timing of the plea, the prosecution submitted that it would be regarded as a late plea. It was noted that the trial, in part, did not commence on the original date of 2 March 2020 due to the offender’s late severance application, which was unsuccessful.
The prosecution accepted that the late plea of guilty was of some benefit to the community and witnesses. The prosecution submitted that, in conjunction with the co-offenders’ guilty pleas, the result was that a trial of substantial length was avoided.
The prosecution further submitted that a plea of guilty may be relevant on a subjective basis in considering remorse and contrition, citing Cameron v The Queen [2002] HCA 6; 202 CLR 339 at [11]. The prosecution submitted that the strength of the prosecution case is a relevant consideration in this regard. It was submitted that, in this matter, the prosecution case was very strong and the plea of guilty reflected, to some degree, the offender’s “recognition of the inevitable”.
Counsel for the offender submitted that a discount of 20% for the plea of guilty would be appropriate, given the significant saving of resources associated with a six-week trial. Counsel for the offender submitted that the timing of the plea, while relevant, is not determinative, and that the plea was entered on the first opportunity following a negotiated outcome.
In response, the prosecution submitted that this was an incorrect characterisation, as the offender’s pleas on 10 March 2020 (not guilty to Count 1, which was later discontinued, and guilty to Count 2) were to an unchanged indictment. The prosecution submitted that the primary consideration in determining the quantum of the utilitarian value of a plea is the timing of that plea, citing R v Thomson; R v Houlton [1999] NSWCCA 142; 49 NSWLR 383 at [160]. It was submitted that this consideration is reflected in the language used in (ii) and (iii) of subsection 16A(2)(g).
Counsel for the offender further submitted that the delay in relation to the trial was not solely caused by defence, as the prosecution had not, at 2 March 2020, provided the entirety of the AMC phone records between the co-offenders.
The prosecution further submitted that counsel for the offender did make a request for further disclosure on 2 March 2020, being a request for additional phone calls from the AMC beyond those relied on in the brief of evidence. The prosecution submitted that, “to the extent the offender seeks to attribute blame or failure on the part of the Crown to disclose this material, thereby occasioning any delay, there is no merit in the submission”. Finally, the prosecution submitted against a discount of 20%.
The co-offenders – Mr Jabal, Mr Poulakis and Mr Omari – entered pleas of guilty on 16 March 2020. In relation to Mr Jabal, the prosecution accepted that a discount of 10-15% would be appropriate (T 25.7-9). In relation to Mr Poulakis, the prosecution did not give a numerical value on the appropriate discount (T 10.32-33). In relation to Mr Omari, the prosecution submitted that a 15% discount would be appropriate (T 59.13). The co-offenders entered pleas at broadly the same time as the offender and the pleas had similar utilitarian value. I also note in this respect that the offender made a severance application on the day the trial was scheduled to begin.
The offender’s plea, although not entered at an early opportunity, had significant utilitarian benefit in that it prevented the need to expend significant resources on a lengthy trial.
I therefore allow a 15% discount for the plea of guilty.
Contrition
The offender provided a typed letter of apology to the Court. The letter set out the offender’s background, in particular the difficult circumstances related to his parents’ separation, his mother’s mental health issues, and growing up in an ethnic minority family in regional Australia.
The offender reports that his life “started to lose traction” when he turned 18, due to his engagement with party drugs, gambling and encounters with “bad people I used to call friends”. The offender attributes his offending, both in the past and in relation to the current offences, to pressure from gambling and drug debts. There is an element of attributing blame to others in his life; however, the offender does state: “I accept I have made extremely poor choices in life and, as a result, I am where I am today”.
The offender also recounts his experience in custody. He states that the first years were the hardest, as he lost his grandmother and brother and was unable to attend either of their funerals. He also states that, while in custody, he has seen “destroyed people” and “severed families” as a result of drug abuse. In this respect, he acknowledges the role he has had in feeding these addictions through his crimes.
The offender offers the following insight into his offending:
I’ve had ample time to reflect with insight to my offending. Who I once thought were good friends, were nothing but mere opportunists. I too fall into this category and hold myself accountable. In some aspects, I feel a sense of relief being in the position I am today, it’s forced me to demarcate from people who are of no value to my wellbeing, and I confess this may not have been done by choice because of my forgiving nature. I used life occurrences as an excuse to warrant the actions carried out. The loss of freedom, the loss of my mother’s mental state to depression, which is ongoing, the loss of my father, whom I no longer interact with, the loss of my grandmother and most significantly, the loss of my brother.
The offender concludes his letter with an outline of his plans for the future:
Despite the overwhelming circumstances, I do have a positive and pro-social plan for my life after prison. One thing I have adopted is my new urge to learn languages other than English. Being from a foreign background, it gives me an advantage as I grew up in a household where my parents were bilingual. I have been studying textbook Spanish and have enjoyed it thoroughly and I am content with my efforts thus far. In addition to Spanish, I have attempted to pursue formal Arabic which is quite complex but rewarding. My criminal history may limit the sectors that are applicable to me however I have not given up. I would love to pursue a career path in becoming an interpreter/translator where I can help others. With all the trauma I have caused, I want to make things right and assist others.
Since 2018 when I had been charged, my life perspective has completely changed. I have found a strong recourse to my faith which has given my life direction. I am now leader of the prayers and deliver sermons every second Friday for the Muslim population in the gaol. It teaches one to be peaceful through the right behaviours, humility and generosity. It’s a religion of peace and it has had a positive impact to my wellbeing.
At the point I write this letter, my time in custody has exceeded five years. Being in prison is and has been the hardest part of my life. I have noticed the collateral damage it has done abroad. It’s evidence that it has taken a huge strain on everyone from the burden of tax-paying citizens to the vulnerable lives who fall weak to drug addiction, to the people closest to me. I have actively tried to make my time in custody as beneficial as possible.
Counsel for the offender accepted that the letter was not sworn evidence; it was submitted, however, that the Court would find, on the balance of probabilities, that the offender is remorseful. In oral submissions, the offender submitted that it was not correct to say that it carries “no weight whatsoever because it is unsworn” (T 45.35-40).
Counsel for the offender further submitted that the offender’s plea of guilty is capable of amounting to evidence of contrition.
In respect of the letter, the prosecution submitted that it was not a “frank exposition” of the offender’s involvement in the joint commission and involved an “element of minimisation” (T 53.20-22). In their submission, the escalation of criminality, from marketable quantity importation to commercial quantity importation, is a relevant factor “in considering to what extent there is genuine remorse” (T 53.26-29). The prosecution further submitted that the fact that the offences were committed while in custody “is highly relevant” to any expression of remorse or contrition (Written Submissions at [16]).
The Courts have stated on many occasions that hearsay statements or statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288; 226 A Crim R 354 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters v The Queen [2010] NSWCCA 1 at [18]; Mun v The Queen [2015] NSWCCA 234 at [37]; Van Zwam vThe Queen [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone v The Queen [2017] NSWCCA 144 and R v Harrison [2002] NSWCCA 79; 121 A Crim R 380, where the sentencing judge, in each case, was not in error in rejecting the offender’s self-serving untested statements as evidence of remorse. Accordingly, I note the remorse expressed. Nevertheless, in accordance with the authorities, I do not ascribe significant weight to the remorse.
Cases & Sentencing Statistics
Bare sentencing statistics provide limited assistance: Pham. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
To ensure sentencing consistency for federal offenders, regard must be had to sentencing practices across Australia and decisions of intermediate appellate courts in other jurisdictions, which provide a “yardstick”: Hili at 535 [48]-[54] Pham.
Having regard to comparable cases serves two purposes: it provides guidance as to the identification and application of relevant sentencing principles and, upon analysis, may yield discernible sentencing practices and possibly a range of sentences against which to examine a proposed sentence: Pham at [29], citing Hili at [49].
Counsel for the offender, while noting the limitations of both statistics and comparable cases, provided statistics from the Commonwealth Sentencing Database in relation to drug importation offences.
The prosecution referred me to a number of comparable cases. In particular, the prosecution submitted that the decision of R v Ng [2012] WASCA 180 is particularly instructive. In that case, Mr Ng re-offended while on bail for similar offences, and was re-sentenced while serving an existing Commonwealth sentence.
In relation to comparable cases, counsel for the offender submitted that decisions of appellate Courts may be considered to be of limited assistance given that often appeal are only instituted as a result of dissatisfaction with results at first instance. The offender submitted that this dissatisfaction is more commonly experienced by the offender rather than the prosecution, which may have the effect of “skewing” what might otherwise be thought of as a “prevailing pattern” of sentences: Written Submissions at [51].
I was referred to the following comparable cases by the prosecution:
(a)R v Englisch [2009] VSCA 71: The offender was charged with one count of aiding and abetting the importation of a commercial quantity of a border-controlled drug, namely 555.48 grams of MDMA. The offender pleaded guilty and had previously been convicted for importing a commercial quantity of drugs in similar circumstances. The offending commenced 20 days after the expiry of a recognisance order for a previous offence, which was an aggravating feature on sentence. The offender came to Australia in 1992 and developed his own company where he worked as a painter until he sustained a work injury where he experienced financial loss and became severely depressed. The offender was sentenced to seven and a half years of imprisonment, with a non-parole period of five years. An appeal by the offender against the sentence was dismissed.
(b)El-Jalkh v The Queen [2011] NSWCCA 236: The offender was charged with one count of conspiring to import a commercial quantity of a border-controlled drug, namely 4.321 kilograms of MDMA. The offender was 61 years of age and had prior good character. He suffered from major depression, had numerous medical conditions, and was supporting elderly parents. The offender was a principal in the conspiracy, but not the director of the enterprise. Nevertheless, he was willing to go to great lengths to effect the importation, including travel to both Lebanon and Europe. The offender was sentenced to 10 years of imprisonment, with a non-parole period of 5 years and 3 months. An appeal against the sentence was allowed due to the sentencing judge miscalculating the date of the sentence; however, the same penalty was imposed. The accused was originally convicted of the offence, but had the conviction quashed on appeal and a new trial order. The accused pleaded guilty to the charge prior to the retrial.
(c)Siddiqi v The Queen (Commonwealth) [2015] NSWCCA 169: The offender was found guilty following a trial of one count of jointly importing a marketable quantity of a border-controlled drug, namely 1.48 kilograms of cocaine. The offender actively recruited innocent agents to accept parcels containing cocaine through the post at their homes; he was found to play a key role, although was only to receive a modest financial reward. The offender was 23 years of age and came to Australia from Afghanistan as a child. He had a difficult upbringing as a result of having to grow up in a new country and had been diagnosed with a major depressive disorder. The Court was cautious about his rehabilitation prospects and a significant prior matter in the Children’s Court was taken into account. The offender was sentenced to seven years and six months of imprisonment, with a non-parole period of three years and nine months. Leave to appeal against the sentence was granted to the offender, but the appeal was dismissed. The Criminal Court of Appeal found that the sentencing Judge had erred in taking into account juvenile offending; however, it was found that an inappropriately low sentence imposed on a co-offender cannot dictate a reduction in an offender’s sentence where that sentence is not manifestly excessive.
(d)R v Ng [2012] WASCA 180: The offender was found guilty at trial of two counts of attempting to possess a marketable quantity of a border-controlled drug, namely 227.1 grams of methamphetamine in relation to count 1 and 383.8 grams of methamphetamine in relation to count 2. The offender was 35 years of age and born in Malaysia. He obtained a Bachelor of Science but was unable to obtain work commensurate to his qualifications due to his proficiency in English. The offender worked as a factory hand, had a gambling addiction and had used recreational drugs for around two years prior to the offending. He carefully monitored the progress of both parcels, which formed part of a very significant drug enterprise. He was trusted by persons at a high level in the drug distribution chain and had two previous convictions for taking possession of imported methamphetamine. The evidence established that the offender was a low to mid-level dealer, and the offences were committed whilst on bail for previous charges. The offender failed to cooperate with law enforcement agencies and demonstrated no insight into his offending. He was sentenced to three years of imprisonment for count 1, and three years and six months for count 2. This was reduced by four months and two weeks to account for time spent in custody between arrest and conviction on previous offending. The sentences were concurrent, but cumulative on a previously imposed sentence. A Crown appeal against sentence was upheld and the offender was re-sentenced to 10 years for count 1 and 10 years and 2 months for count 2. The sentences were concurrent, but partly cumulative on the previously imposed sentence. Following the appeal, the total effective sentence for the offender (including the previous sentence) was 13 years, 7 months and 2 weeks of imprisonment, with a single non-parole period of 8 years and 6 months’ imprisonment.
I was referred to the following cases by defence:
(a)Shahbazi v The Queen [2016] VSCA 270: The offender pleaded guilty to two counts of importing a border-controlled drug, namely methylamphetamine. The total quantity of methylamphetamine was 3.3 kilograms. The offender entered an early plea of guilty and had a minor criminal record. He was an intermediary who liaised with the co-offender and arranged the importations through contacts in Iran. He was an Iranian refugee and was found to be remorseful. The offender was sentenced to eight years and six months’ imprisonment, with a non-parole period of five years and six months.
(b)Van Zwam v The Queen [2017] NSWCCA 127: The offender was sentenced for importing 3.97 kilograms of methamphetamine. He received a 25% discount on sentence on account of his plea of guilty. The offender was found with drugs in his suitcase at Sydney airport and was sentenced on the basis he had been reckless as to the contents of the suitcase. The offender was a courier of a trusted importer; he was held to be remorseful with good prospects of rehabilitation. On appeal, the offender was re-sentenced to eight years and six months of imprisonment, with a non-parole period of four years and six months.
(c)R v Onyebuchi; Ex parte Commonwealth DPP [2016] QCA 143: The offender was sentenced for importing 781.9 grams of methamphetamine following a guilty plea. The offender’s role was considered to be higher than a courier, and the drugs were imported concealed in a foot massager package from China. Following a successful Crown appeal, the offender was re-sentenced to nine years of imprisonment, with a non-parole period of four years and six months.
(d)R v Igwebuike [2017] ACTSC 323: The offender was found guilty of importing 8.5 kilograms of methamphetamine. The offender had no prior record and played an important role in the importation. He took delivery of the drugs and was preparing to deliver them when arrested. The offender was sentenced to 10 years and 6 months of imprisonment, with a non-parole period of 6 years and 6 months.
(e)Yip v The Queen [2017] VSCA 231: The offender was sentenced for the importation of 1.34 kilograms of methamphetamine, brought from Hong Kong to Australia in two bottles of cognac. The offender entered a plea of guilty and was held to be remorseful with reasonable prospects of rehabilitation. He had a limited prior record. The offender was sentenced to seven years and six months of imprisonment, with a non-parole period of five years and six months. An appeal by the offender was dismissed.
(f)Obiekwe v R [2018] NSWCCA 55: The offender was sentenced for the importation of 17.4 kilograms of methamphetamine following a plea of guilty. He played a central role in the importation hierarchy and engaged in significant planning for the importation. He was found to have very good prospects of rehabilitation. The offender had no prior record. He was sentenced to 12 years of imprisonment, with a non-parole period of 7 years. The offender was granted leave to appeal against the sentence, but the appeal was ultimately dismissed.
(g)R v Tran [2011] NSWDC 105: The offender pleaded guilty to one count of importing a border-controlled precursor, namely 9 kilograms of pseudoephedrine. The offender had a central role in importing the pseudoephedrine from Vietnam by mail, received the packages, and travelled to Vietnam for the purpose of arranging the importation. He had a limited criminal history, showed significant remorse and had good prospects of rehabilitation. The offender was sentenced to six years and four months of imprisonment, with a non-parole period of four years.
(h)R v AA [2010] NSWDC 233: The offender pleaded guilty to one count of importing a commercial quantity of a border-controlled drug, namely cocaine, and a further count of attempting to traffic in a commercial quantity of a border-controlled drug, namely cocaine. The importation related to 8.95 kilograms of cocaine. The offender had some criminal history in Canada. He received multiple air cargo consignments containing cocaine and received $15,000-$30,000 for his role in the importation. The offender showed remorse, cooperated with police and had excellent prospects of rehabilitation. The offender was sentenced to eight years and seven months of imprisonment, with a non-parole period of four years and nine months.
(i)R (Commonwealth) v Wilson [2018] NSWDC 518: The offender was charged with, and pleaded guilty to, one count of importing a commercial quantity of a border-controlled drug, namely methamphetamine; one count of attempting to possess a commercial quantity of a border-controlled drug, namely methamphetamine; and one count of trafficking in a marketable quantity of a controlled drug, namely methamphetamine and cocaine. The importation charge related to 4.8958 kilograms of methamphetamine. The offender was a member of a criminal syndicate involved in importing and distributing drugs in Australia. He arranged for multiple consignments to be delivered to various addresses in Sydney. The offender had no known criminal history and showed some remorse. He was sentenced to eight years of imprisonment for the importation charge. This was reduced from 12 years on account of a discount for the plea of guilty and assistance provided to the Crown. The total sentence was nine years of imprisonment, with a non-parole period of six years.
(j)R v Basri, Okonkwo and Madubuko [2009] NSWDC 398: Mr Okonknwo and Mr Madubuko were sentenced for possession of a commercial quantity of an unlawfully imported border-controlled drug. Ms Basri was sentenced for the importation of a commercial quantity of a border-controlled drug, namely 1.88 kilograms of methamphetamine. All three offenders were found guilty by jury. The methamphetamine was imported by Ms Basri by concealing it in her suitcase on behalf of an Indian-based drug syndicate. She acted as a courier and was expected to report progress and any issues. She was found to have strong prospects of rehabilitation. Ms Basri was sentenced to five years and three months of imprisonment, with a non-parole period of three years and three months.
(k)R v Chiagozie [2018] NSWDC 298: The offender was charged with one count of importing a commercial quantity of methamphetamine (317.5 grams), and one count of trafficking in a marketable quantity of two border-controlled drugs, namely methamphetamine and cocaine. The offender was considered above a mere courier; he was intimately involved in operating the scheme but was not the mastermind behind the scheme. He arranged delivery of the consignments by providing addresses and then collected them. The offender pleaded guilty and received a total sentence of seven years and six months, with a non-parole period of four years and six months. In relation to the importation offence, the offender was sentenced to six years and nine months.
(l)R v Habib [2015] NSWDC 167: The offender pleaded guilty to one offence of importing a marketable quantity of a border-controlled drug, namely 1.073 kilograms of cocaine. She had no criminal history and was considered a courier, rather than a principal, in the operation. The importation involved the collection of a lava lamp during a cruise that contained cocaine; the offender was intercepted and arrested at customs. The offender was sentenced to five years and three months of imprisonment, with a non-parole period of two years and five months.
(m)R v Wong [2009] NSWDC 376: The offender was convicted of importing a commercial quantity of a prohibited drug, namely 642 grams of MDMA, following a plea of guilty. He was a Canadian citizen who claimed he was merely checking in luggage for another passenger. The Court found it “difficult to accept” that he was a mere transporter, not an organiser: at [26]. The offender was sentenced to six years of imprisonment, with a non-parole period of four years.
(n)R v Zuniga Frias [2019] NSWDC 365: The offender pleaded guilty and was convicted of one count of importing a commercial quantity of a border-controlled drug, namely 15.8744 kilograms of methamphetamine. The offender communicated with an associate in Mexico and booked two Airbnb residences for the consignments to be delivered to; her role was classified as a courier. A discount of 40% was applied on account of her plea of guilty and assistance to authorities. The offender was sentenced to 7 years, 2 months, and 14 days of imprisonment, with a non-parole period of 4 years and 10 months.
(o)R v Arnaout [2018] NSWDC 110: The offender pleaded guilty and was convicted for one count of importing a commercial quantity of a border-controlled drug, namely 4.4681 kilograms of methamphetamine. She had no criminal history. The circumstances of the offending were that she imported the drugs through a suitcase that was clearly packed by other individuals, and she was reckless as to the contents of the suitcase and the quantity of the drugs. Her role was characterised as a courier and she was held to have good prospects of rehabilitation. The offender was sentenced to six years and six months of imprisonment, with a non-parole period of three years and two months.
(p)R v Cressel [2017] NSWDC 272: The offender pleaded guilty to one count of importing a commercial quantity of a border-controlled drug, namely 3.3263 kilograms of cocaine, and one count of importing a marketable quantity of a border-controlled drug, namely 1.4237 kilograms of cocaine. The offender arranged for packages to be sent to a friend’s address; monitored the consignments; and took delivery of the packages. He did so on instruction from an unknown individual via a Blackberry that was provided by a third party. The offender had no prior convictions, was found to be remorseful, and had good prospects of rehabilitation. He received a discount of 35% on account of his pleas of guilty and assistance provided to authorities. For the commercial quantity offence, the offender was sentenced to nine years of imprisonment. For the marketable quantity offence, the offender was sentenced to six years and six months of imprisonment. There was significant concurrency between the sentences. The offender received a non-parole period of six years and six months.
(q)R v Baker (No 3) [2019] ACTSC 365: The offender was found guilty at trial of 12 drug-related offences, including trafficking and dealing with the proceeds of crime. Count 1 was a charge of attempting to import a commercial quantity of a border-controlled drug, namely 2 kilograms of methylone. The offender, together with a co-offender, attempted to source the drug from China. The offender encouraged the co-offender to order drugs using a computer obtained at the direction of the offender. The importation did not arrive. The attempted importation was part of a broader course of joint enterprise drug dealing. The offender was 28 years of age and was held not to be remorseful. He had positive and supportive family relationships and positive behaviour on remand. In relation to the importation offence, the offender was sentenced to seven years of imprisonment. He was sentenced to an aggregate sentence of 13 years and 8 months’ imprisonment, with a non-parole period of 7 years. Due to the length of the non-parole period, the Court declined to impose a non-parole period in relation to the importation offence, pursuant to s 19AB(3)(b) of the Crimes Act.
(r)R v Pinyosap, Surachai [2014] NSWDC 349: The offender was convicted for importing a commercial quantity of heroin (1.939 kilograms). He was arrested at the airport with two suitcases containing drugs and made immediate confessions to police. The offender was a Thai national who was a long-term resident of Australia and 26 years of age at the time of sentence. He had no prior convictions. The offender had a significant gambling addiction; he was motivated to commit the offence following threats towards his partner and child in relation to repayment of gambling debts. The offender received a 25% discount for his plea of guilty, and a further small discount for offering to assist authorities. He was sentenced to seven years’ imprisonment, with a non-parole period of four and a half years.
(s)R v Nguyen [2019] VCC 1207: The offender was charged with attempting to possess an imported quantity of cocaine – 3.319 kilograms. A late plea of guilty was entered following adverse pre-trial rulings. The offender was held to be a “facilitator” of the attempted importation and was found to have played a significant and important role. The offender had no prior record, was motivated by greed, and was considered to be a model prisoner. Any remorse expressed by the offender was considered to be a “work in progress”. The offender was sentenced to seven years’ imprisonment, with a non-parole period of three years and eight months.
(t)R v Chung Kung Fu [2015] VCC 634: The offender was sentenced for two counts of importing a commercial quantity of methamphetamine, totalling 7.576 kilograms. The offender entered a plea of guilty, not at the earliest opportunity, but before the trial had been significantly prepared. The offender played an important and integral role in the importation. The offender was 25 years of age at the time of offending and had a prior conviction for assault in Hong Kong. The offender was sentenced to seven years’ imprisonment on each count, with a head sentence of eight years and a non-parole period of five years and six months.
Parity
The Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24] stated the following:
[J]ust as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at [48].
The principles in relation to parity in sentencing co-offenders are well known. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32].
There are three co-offenders in this matter: Mr Jabal, Mr Poulakis, and Mr Omari.
It was accepted by both prosecution and defence that Mr Poulakis’ and Mr Yavuz’ involvement in the importation was more significant than that of Mr Omari or Mr Jabal. Mr Jabal was sentenced for being knowingly concerned in the trafficking of a controlled drug other than cannabis, namely cocaine. He was convicted and sentenced to 12 months’ imprisonment to be served by way of intensive correction order: see R v Jabal [2020] ACTSC 230. Mr Poulakis was sentenced on 18 September 2020 for importation of a commercial quantity of MDMA and trafficking in dibutylone. He was sentenced to five years and nine months’ imprisonment in respect of the importation charge, and nine months’ imprisonment in respect of the trafficking charge. In relation to the importation charge, he received a non-parole period of two years and nine months. Due to the partial accumulation of the two charges, Mr Poulakis will serve a minimum of three years in custody, backdated to account for one month already spent in custody: see R v Poulakis [2020] ACTSC 247. Mr Omari is to be sentenced later this year.
The objective and subjective features of the offending of Mr Yavuz and Mr Poulakis can be compared as follows:
| EMIN YAVUZ | PETER POULAKIS |
| One count: Joint commission importation of commercial quantity of MDMA | Count 1: Joint commission importation of commercial quantity of MDMA Count 2: Trafficking in dibutylone |
| Objective Features of Offending | |
| Aware of the identity and role of Sock | Aware of the identity and location of Sock at all relevant times |
| A common link between Poulakis and Omari/Jabal | |
| Aware of the decision to use the ANU for the delivery address | No evidence of awareness of using ANU in the planning stage, but became aware later |
| Tasked Omari with communicating with Jabal that he wanted to recover $50,000 from his investment | |
| Told Jabal in person that he wanted to recover this money; “authority and influence were such that Jabal immediately complied with the demand” | |
| Tasked Poulakis with liaising with Jabal and collecting money from him in cash | Tasked with collecting money from Jabal |
| Responsible for the purchase and ordering of the consignments | |
| Expected and received regular reports from Poulakis about the money | Provided regular progress reports to Yavuz about the money and whether it had been collected from Jabal |
| Discussed with Poulakis the purchase of Bitcoin | Purchased Bitcoin using the money provided by Jabal |
| Received regular updates about Sock’s activities | Provided regular progress reports to Yavuz about Sock’s activities and whether he had dispatched the consignments |
| Informed immediately when the consignments were dispatched | |
| Discussed with Poulakis and Omari the collection of the first consignment from ANU | Tasked, along with Omari, with collecting the first consignment from the ANU |
| Sufficient influence to remonstrate with Poulakis and Omari regarding Omari’s failure to collect the first consignment | |
| Received regular updates about the collection of the first consignment | Provided regular updates to Yavuz about the collection of the first consignment |
| Sufficient influence and authority to remonstrate with Poulakis about his failure to ensure Sock was punctual | |
| Subscribed two telecommunications services in the name of Ms H to use as contact numbers for the consignments | |
| Received regular updates about the progress of the second consignment | Provided regular updates to Yavuz about the progress of the second consignment |
| Subjective Features | |
| In custody at the time of offending | |
| History of similar offending | No related offending; dated and limited record |
| Substance use and gambling disorder | Diagnosis of ADHD |
| Good family environment; father relocated to Turkey for some time when Yavuz was a teenager; Yavuz lost his brother in 2017; left school in Year 10 but later completed Years 11 and 12 through TAFE | Good upbringing, interrupted high school life, left school after Year 10 |
| Employment success with running his own cafes | |
| Guarded prospects of rehabilitation due to circumstances of offending; significant family support | Good prospects of rehabilitation and significant family/friend support network |
| Loss of relationship and cost to business enterprise | |
| References speak of Yavuz turning to religion while in custody | |
| Evidence that Yavuz has been a productive member of AMC community | |
| Motivated by financial gain (and pressure to pay gambling debts) | Motivated by financial gain |
In relation to parity, the prosecution submitted that the offender’s culpability is similar to that of Mr Poulakis, and above that of Mr Omari. It was submitted, however, that a number of factors may give rise to some differences between the sentences imposed, including:
(a)The offender is to be sentenced for the importation of the second consignment (1,771 grams of pure MDMA), whereas Mr Poulakis and Mr Omari are to be sentenced for the importations of both the first and second consignments of MDMA (2,223.8 grams of pure MDMA). Mr Poulakis and Mr Omari are also to be sentenced for other offending. I note the agreed facts in this regard, set out above at [12]-[13].
(b)The offender’s conduct is significantly aggravated in that he actively participated in the joint commission whilst serving a substantial term of imprisonment for multiple offences of a similar, but less serious, nature.
Counsel for the offender accepted that the roles of the offender and Mr Poulakis are “broadly equivalent”. Counsel noted that Mr Poulakis pleaded guilty to additional offences, and therefore, the sentences must differ.
Counsel for the offender, noting the limits placed on the offender due to incarceration, submitted the following in relation to parity:
When one looks closely at Mr Poulakis’ involvement, Mr Poulakis was the driver of the enterprise. Without his efforts and contacts this enterprise would have been disabled and inoperative. This of course does not mean that Mr Yavuz was [an] innocent agent in all of this. He was criminally involved, but his role in comparison to Mr Poulakis was objectively less. Mr Renton on sentence made the following remarks that; “He (Yavuz) is not micromanaging every single thing that every single person does”. Mr Renton also goes onto saying “it is true that both Poulakis and Omari do things without apparent direction or instruction from Mr Yavuz”.
Mr Poulakis also controlled the information trail. It was him that was keeping Mr Yavuz up to date with developments as they unfolded. Poulakis can be seen as the brain of the operation and Yavuz as his wingman was a part investor. After all, what must be borne in mind is that [it was] Mr Poulakis who arranged the second consignment and the natural inference being that he had a web of contacts and being the master mind, knew … to draw upon assets when required.
Counsel for the offender submitted that Mr Poulakis could be seen as the “central connection”. It was submitted that, while at time the offender engaged in “directional type” behaviour, Mr Poulakis and Mr Omari also engaged in furthering the enterprise with “little or no input” from the offender.
I note that the agreed facts state that Mr Yavuz “directed” the activities of the syndicate (see [9] above). The foundation of the assessment of the different roles of Mr Poulakis and the offender is the agreed facts. The objective features of the offending are noted in the table at [107]. While it is the case that there is a broad equivalence in terms of hierarchy and role as between Mr Poulakis and the offender, it is clear that Mr Yavuz had, comparatively, a somewhat greater role in “directional type behaviour”: see [10]. I have come to this conclusion, not on the basis of shorthand labels, but rather a comparison to the extent that the evidence allows of what their respective involvement was.
Totality
As discussed above, the offender was serving a fulltime custodial sentence at the time of this offending. He was sentenced by Burns J on 15 October 2015 to a term of 5 years and 11 months’ imprisonment, with a non-parole period of 3 years and 6 months. This previous sentence was ordered to commence on 15 March 2015.
The practical effect of the previous sentence was that the offender was eligible for release on parole on 15 September 2018. On 6 September 2018, and again on 3 September 2019, a delegate of the Attorney-General of Australia gave notice to the offender under s 19AL of the Crimes Act refusing to make a parole order.
The prosecution submitted that the Court can, and should, have regard to the previous sentence from the point of view of totality: Postiglione v R (1997) 189 CLR 295; s 16B Crimes Act. Further, it was submitted that the need for deterrence warrants the sentence for the present offending to be served cumulatively upon the previous sentence.
The prosecution noted that, as the offender is not currently serving a non-parole period, s 19AD of the Crimes Act does not apply. It was submitted that, “as it is likely that any sentence imposed on the offender for his current offending will results in him serving a sentence of imprisonment that exceeds, in the aggregate, more than three years, s 19AB(2) of the Act will apply and the Court must fix a non-parole period in respect of all federal offences that he is to serve or complete”.
Counsel for the offender submitted that the imposition of a further sentence on the offender should not be conducted “on a purely linear basis”. It is settled law that the severity of the overall effective sentence increases as the time in custody increases; it is not linear: R v MAK [2006] NSWCCA 381; 167 A Crim R 159. It was submitted that this was of particular relevance given the young age at which the offender entered custody.
The offender’s counsel submitted that an appropriate outcome would be for partial accumulation and partial concurrency, in accordance with the principles set out in Pearce v The Queen [1998] HCA 57; 194 CLR 610 (Pearce).
In oral submissions, both parties accepted that the correct approach would be to impose a sentence that is appropriate in all the circumstances to this particular matter and not to adjust it for the purpose of totality but to impose it in such a way that reflects totality: See Mill v The Queen (1988) 166 CLR 59, Pearce and Johnson v The Queen [2004] HCA 15; 78 ALJR 616.
I note that, had this been a Territory offence, s 72 of the Crimes (Sentencing) Act 2005 (ACT) would have applied in relation to this offence. This section provides that, where an offender is to be sentenced for an offence committed while in lawful custody, the primary sentence must be served consecutively with the existing sentence of imprisonment, unless the Court directs otherwise. Both parties agreed that this section does not apply in the context of Commonwealth offences. Sections 68 and 79 of the Judiciary Act 1903 (Cth) pick up and apply State or Territory laws to persons charged with Commonwealth offences, subject to stated qualifications. A State or Territory law would not be picked up where “a Commonwealth law expressly or by implication made contrary provision, or if there were a Commonwealth legislative scheme … which was ‘complete upon its face’ and can ‘be seen to have left no room’ for the operation of” the relevant State or Territory law: Putland v The Queen [2004] HCA 8; 218 CLR 174 at [7]. The prosecution submitted that, while there is no Commonwealth provision equivalent to s 72 of the Crimes (Sentencing) Act 2005 (ACT), s 72 is inconsistent with ss 16A(1) and 16B of the Crimes Act insofar as it purports to override or infringe the Court’s sentencing discretion, particularly with regard to totality. Counsel for the offender agreed with this characterisation. I accept this submission as it accords with my view of the relevant provisions. Therefore, s 72 is not applicable in this case.
Other Relevant Considerations
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
Duress
Counsel for the offender submitted, with reference to Dr Borenstein’s report, that the offender was motivated to commit the offence in order to repay owed debts, and due to concern regarding threats in relation to the non-payment of those debts. It was submitted that the offender’s brother acted as a mediator between the offender in deferring payment of these debts; however, his brother passed away in 2017 in Iraq. The offender submitted, therefore, that the perceived urgency of the need to meet the debt may have changed following the passing of the offender’s brother.
In this respect, the offender’s counsel submitted the following, at [35] of their Written Submissions:
The offender must establish this proposition [that he was under duress] on the balance of probabilities in order for the matter to be taken into account in mitigation. Whilst it is true that Mr Yavuz had an investment in a property development at the time of his incarceration, the Court would not be satisfied that this sum was sufficient to address his debts. The role of the offender’s brother as a mediator was a matter that could facilitate time for Mr Yavuz to source sufficient funds. The importation may well have done so. The existence of such debt is consistent with what else is known of his pre-custody lifestyle.
In oral submissions, counsel for the offender conceded that, prima facie, the duress argument “does not sit well” with the offender having a significant sum of money tied up in a property investment (T 46.5-7).
The offender’s counsel summarised his position in oral submissions as follows: “perhaps [following his brother’s passing] Mr Yavuz’s circumstances and his commitments come into sharper focus … and they being in sharper focus, he exercises a profound error of judgment and participates in the present matter in an effort to address those debts” (T 46.16-20). The offender’s counsel characterised this as “contextual duress”, noting that it was not being raised in the sense of a common law defence of duress (T 46.33-44).
In respect of both contrition and duress, in oral submissions, the prosecution summarised the prosecution position as follows (T 51.1-15):
We would accept that [the plea of guilty] demonstrates a certainly belated willingness to facilitate the course of justice and that there is an element of remorse in the plea, but in terms of contextual duress, the only evidence of that is the untested, unsworn, unsupported assertions from Mr Yavuz in his letter, which he then repeats to the author of the [psychological] report. It is not supported in any way by any independent objective evidence. … One of the great difficulties we have is that, in our submission, it is well open to your Honour to find that investment Mr Yavuz had in Mr Jabal’s property development was in excess of $50,000 because it would have been nonsense for Mr Jabal to have picked a figure that exceeded the nature of the investment hat Mr Yavuz had made.
The prosecution further submitted that, if somebody was in debt of the magnitude alleged to Mr Borenstein ($100,000), it “beggars belief” that they would have been in a position to invest $50,000 or more (T 51.45-47).
In summary, the prosecution submitted that “there is an inherent inconsistency between a man who is in a position to invest that level of money but who also claims to have been motivated by threats in relation to unpaid debts” (T 52.2-4).
Accordingly, I am not satisfied on the balance of probabilities that duress is established.
Gambling & Drug Use
Counsel for the offender noted that the issue of a past gambling addiction is raised in the offender’s letter to the Court and in Dr Borenstein’s report. The offender conceded that such a matter does not amount to a matter in mitigation: Assi v The Queen [2006] NSWCCA 257, R v Chapman [2001] NSWCCA 457 and R v Molesworth [1999] NSWCCA 43.
The offender similarly conceded that the abuse of drugs will not normally amount to a matter in mitigation: R v Henry [1999] NSWCCA 11; 106 A Crim R 149 at [26].
Rehabilitation
The offender’s counsel submitted that the Court would form the view, perhaps guardedly, that the offender has reasonable prospects of rehabilitation. This was supported by reference to the report of Mr Borenstein and the Sentenced Detainee Case Plan dated May 2020.
In oral submissions, the offender’s counsel submitted that he needs to do something about his gambling and that it was his principle weakness in terms of rehabilitation (T 47.19-22). It was accepted by the offender that previous behaviours demonstrate that the offender succumbs to these pressures and commits offences (T 47.24-35). The offender’s counsel submitted in this respect that the offender has had a difficult formative life, with reference to the subjective material (T 48.4-8).
In respect of rehabilitation, the prosecution submitted the following (T 52.41-53.11):
The fact that he was able to portray an outward appearance of a proper and model prisoner while at the same time engaging in a serious aspect of criminality over an extended period of time … the two need to be balanced together with one another and, in our respectful submission, even a guarded view of the prospects of rehabilitation is potentially generous in respect of the offender’s circumstances … we do note, and I say this in fairness to the offender, there does seem to have been a material change with the finding of religion. In his references from the Imams, there is reference to the fact that drugs and drug related activity is anathema to the Muslim faith.
In Mr Yavuz’s letter, he has flirted with drugs from around the age of 18, so for almost half his life he has had an association in one form or another with an element of his faith that clearly did not have sufficient impact to deter him from engaging in that but the references now speak of him as a man who has found faith so to the extent that there is something to be said for the prospect of rehabilitation, we accept that there is a glimmer [of hope] from that, but in the context of re-offending from prison, it must be with a healthy level of guarded concern.
The prosecution also highlighted that the fact the offences were committed while the offender was in custody is “highly relevant to any expression of remorse or contrition made by the offender and ultimately to the offender’s prospects of rehabilitation and the risk of re-offending” (Written Submissions at [16], citing s 16A(2)(j) and (n)). As referred to above at [52], prospects of rehabilitation remain guarded.
Impact of COVID-19
The offender tendered a document on 26 May 2020 from the ACT Corrective Services website that confirmed the suspension of all social visits from detainees at the AMC.
Noting all in-person social visits have been suspended at the AMC, the offender submitted that the offender’s time in custody is more onerous: Scott v The Queen NSWCCA 81 at [166]. It was submitted that this is a matter that should be given some weight in terms of mitigation of penalty.
The prosecution accepted that the impact of COVID-19 is a relevant factor on sentence (T 54.34-41). It was submitted, however, that “there is an inherent difficulty in attempting to quantify the extent of that hardship given the unknown in relation to the future of this particular virus and its impact on things like prison visitations” (T 54.13-16). In the context of a significant term of imprisonment, where the restriction on social visits may only last for a small proportion of that sentence, the prosecution submitted that the degree of additional hardship is reduced (T 54.8-13).
In relation to the impact of COVID-19 it is necessary in the individual case to take into account both health consequences and social consequences. On the evidence before the Court, it appears the AMC is managing the health risks appropriately at this stage. There is no evidence before the Court that the offender is in a high-risk category in relation to physical health consequences. The social consequences are nevertheless of significance in this case. In particular I note R v Stott (No 2) [2020] ACTSC 62, where Elkaim J stated the following in relation to bail, which is equally apposite to sentence at [13]:
… I think the curtailment of visiting rights is a relevant factor and, personal to the applicant, does amount to a change of circumstances. Persons on remand no doubt rely on the limited social contact they are permitted, most of which is achieved through visits. In particular, contact with family is an important element in the life of a person resident at the AMC.
Courts around Australia have made a number of statements concerning COVID-19 and sentencing. It is accepted that suspension of visits make incarceration more onerous: Scott v The Queen [2020] NSWCCA 81 at [166]. While the AMC and the ACT more generally remain free of COVID-19 infections, it is acknowledged that, while the risk of infection remains and related restrictions are in place, the consequences for prisoners are significant: DPP v Kotiau [2020] VSC 245 at [75]. Absence of visits from family and friends is an additional hardship that must be synthesised along with other matters: R v Despotovski [2020] NSWDC 110. See also Brown (aka Davis) v The Queen [2020] VSCA 60 at [48].
I accept the submissions of both the offender and the prosecution in relation to COVID-19. I note that, since the sentence hearing, limited social visits recommenced at the AMC from 9 September 2020. These visits are restricted to immediate family and partners only, and each detainee is allowed one adult visitor and one child visitor. No physical contact is permitted between visitors and detainees. While the availability of limited social visits lessens the social consequences of COVID-19, they do remain constrained, and may well be suspended again if the ACT experiences another wave of COVID-19 cases. There is, therefore, still additional hardship attached to imprisonment due to the COVID-19 pandemic. I take this into account as a relevant factor on sentence.
Sentence
In coming to a sentence by way of instinctive synthesis, l have taken into account all the matters discussed above, including the objective seriousness of the offence, subjective matters, and other relevant matters contained in s 16A of the Crimes Act.
The appropriate sentence for the offence of jointly importing a commercial quantity of a border-controlled drug is 10 years, reduced to 8 years and 6 months on account of the discount for the plea of guilty.
As per s 19AB(2) of the Crimes Act, I set a non-parole period of five years and one month. This amounts to approximately 60% of the total sentence.
Noting that the offender is currently serving a custodial sentence for similar offending that is set to expire in February 2021, I will impose a sentence that is partially concurrent with the offender’s existing sentence. The offender’s new sentence will commence on 15 August 2018. The offender will therefore be eligible for parole on 14 September 2023.
The total effective sentence for this offence and the previous offending as sentenced by Burns J is therefore approximately 11 years and 11 months. The offender will therefore serve a notional non-parole period of approximately 70% of the total sentence.
Orders
I make the following orders:
(a)I record a conviction in relation to the offence.
(b)In respect of charge CC13835/2018, the offender is sentenced to a term of eight years and six months’ imprisonment, commencing on 15 August 2018 and ending on 14 February 2027.
(c)I set a non-parole period of five years and one month, commencing on 15 August 2018 and ending on 14 September 2023.
| I certify that the preceding [147] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: |
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