R. v Zarwue
[2016] VCC 888
•24 JUNE, 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-16-00576
| THE QUEEN |
| v |
| AIBA ZARWUE |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 JUNE, 2016 | |
DATE OF SENTENCE: | 24 JUNE, 2016 | |
CASE MAY BE CITED AS: | R. v. Zarwue | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 888 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Flinn | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms Z. Garde-Wilson | Garde-Wilson Lawyers |
HER HONOUR:
1 Aiba Zarwue, you have pleaded guilty to one charge of attempting to possess a marketable quantity of a border controlled drug, namely methamphetamine, the maximum penalty for which is 25 years' imprisonment. You have also pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception, the maximum penalty for which is ten years' imprisonment.
2 You were 28 years old at the time of the offending and have no prior criminal history.
3 The prosecutor presented a summary of your offending. It is not my intention to repeat the summary, which is Exhibit A in these plea proceedings.
29 April 2015
4 Briefly, on 29 April 2015 you went to Sebel Apartments in Docklands and produced a fake NSW driver's licence in the name of Peter Johnson bearing your image to access a room that had been reserved on-line by an unidentified person earlier that day. You completed the check-in paperwork using the NSW licence details. A bond of $200 was paid for the room. These facts form the basis of the charge of dishonestly obtaining a financial advantage, being the use of the hotel room for one night. The value of the accommodation was $230, hence the loss caused by the deception was $30.
5 The prosecution does not assert any relationship between this offence and the drug-related charge.
26 August 2015
6 On 18 August 2015 a consignment sent from Mumbai, India was intercepted by Customs officers at Sydney International airport. The parcel was addressed to Thomas George at an address in Moa St, Norlane. On examination, the package was found to contain three laptop computers. The charger to one laptop was opened and concealed within the charger was a plastic bag with approximately 50 grams of a crystal-like substance. After presumptive testing returned a positive result for the presence of methamphetamine, a substitute consignment was created by Victoria Police.
7 When police subsequently rang the mobile phone number given for the consignee, a male answering the phone asked that the parcel be dropped off at an Australia Post depot. On 25 August 2015 the police left the substituted parcel at a post office in Norlane and an Australia Post collection card was left in the letter box of the Moa Street address. The house itself was unoccupied and up for lease.
8 Your involvement in the offending occurred on 26 August 2015. On that date, you arranged for a friend to drive you to Geelong. When you arrived at the Norlane address, police saw you remove mail items from the letter box and then speak with someone on your mobile phone. Your friend then drove you to the nearby shops and parked. Whilst parked, police observed you writing out the Australia Post authorisation purportedly from Thomas George to allow you to collect the parcel.
9 At around 11.40 am that day you attended the post office in Norlane and produced the letter of authorisation, signing your name as A. Zarwue. You were then handed the parcel and returned with it to the car. The police then intercepted the car, at which point you tried to flee on foot before you were apprehended. You initially resisted arrest before being subdued. You were found to have A$1,430 and US$70 in cash on you.
10 You were interviewed by police on 26 August 2015. During the interview you made a number of admissions regarding your role in the offending but denied knowing the package contained illicit drugs. You said you were offered $300 - $400 to collect the parcel for a friend named Thomas George, who was also known to you as Henry. You said you were unemployed at the time and intended to use the money to pay bills. You said you arranged for your friend to drive you to Geelong and paid for his petrol. You said Thomas George would call you once you collected the parcel and that he would then drive to the Norlane address to collect it. You told police your wife gave you the $1,430 in cash to send to her parents and that an American friend gave you the US$70 to exchange on her behalf.
11 In certain respects you were not frank with police during the interview. For instance, you denied writing the authorisation letter yourself, saying Thomas George had given you the letter to present at the post office. Moreover, you denied the conversation the informant says he had with you on arrest, where you told him you had been offered $4,000 from Henry to collect the parcel.
12 During a break in the interview, police observed your mobile phone ringing a couple of times with the caller ID showing the name Thomas George. On analysis, two different phone numbers were found to be saved to your phone, under the names Thomas George and Henry. The number recorded to Henry was the same phone number as that given for the consignee on the parcel addressed to Thomas George.
13 The substance contained in the package was subsequently analysed. It was found to be 90.7 grams of methamphetamine with a purity of 61 per cent. This equates to 45 times the minimum marketable quantity and is approximately 12 per cent of the maximum marketable quantity. The quantity of methamphetamine you attempted to possess has been calculated to have a wholesale value of between $35,360 and $57,200 and a street value ranging between $109,950 and $146,600.
14 Clearly, attempting to possess a marketable quantity of methamphetamine is serious offending, reflected in the maximum penalty of 25 years' imprisonment.
15 In this case, the prosecution concedes that your role was limited to that of a courier; that said, however, the prosecution contends that this does not necessarily entitle you to leniency, noting that the illicit drug trade relies on those who are ready, willing and able to fulfil such roles.
16 It is important to assess the significance of the role played by you in determining the objective criminality of your offending. Here, you agreed to collect the parcel, arranged for an acquaintance to drive you to Geelong, attended the consignment address to retrieve the Australia Post collection card, wrote out the authorisation purportedly from Thomas George to assist in the collection of the parcel, maintained contact with those involved in the importation by mobile phone and attended the Norlane Post Office to collect the parcel using the authorisation.
17 From your admissions, you were to be paid between $300 - $400 dollars on the one hand, and $4,000 on the other, to collect the parcel. I accept that you were acting in this role at the behest of others. On any view, the profit to you was minimal in comparison to the profit to be gained from the sale of the methamphetamine. Although I accept that your role was limited to that day's events and for modest personal financial gain, it was nonetheless integral in facilitating the importation of the methamphetamine into Australia. It is relevant in sentencing you that you attempted to possess 45 times the marketable quantity threshold for that drug.
18 I turn now to your personal circumstances.
19 Your childhood was one marked by the tragedy of civil war in Liberia, your country of birth. You and your siblings were essentially raised by your mother. In the context of tribal conflict, you were ten years old when you saw your father shot and killed. The same fate met many other members of your extended family. Your three older sisters were raped and tortured; one of your sisters bore a child as a result. Your family escaped to a refugee camp in Guinea, where you spent six to seven years in difficult conditions. The horrors you faced during your childhood, first in Liberia and then in Guinea, are eloquently detailed in a letter your sister wrote to the court on behalf of your family.
20 In 2004, at the age of 16, you and your family were granted a humanitarian visa and came to Australia. After spending a short time in Darwin, the family came to Melbourne. Your sister writes of the difficulties faced by you and your family in integrating into the community and of re-entering the school system after years of disrupted schooling. On 15 October 2004 you were granted permanent residency in Australia. The other members of your family are now Australian citizens.
21 From the time you arrived in Melbourne, you have been a law abiding and hard-working member of the community. You first attended Collingwood College for four years, completing the equivalent of year 11. You later completed a six-month Certificate III and then IV TAFE course in Logistics/Warehousing. Between 2011 and 2014 you have worked in a variety of jobs, including factory and laundry work, work as a labourer with Toll Holdings and as an assistant cook at Crown Casino. From 2013 you were employed as a machine operator with Linfox until you and others were retrenched in mid-2014. Unfortunately, you have been unable to secure employment since that date.
22 Arising from a brief relationship you had when you were 24 you had a son, now aged six, for whom you are responsible. At the age of 27, you married your Liberian-born wife in a traditional ceremony and together you raise your son. You live in public housing in Fitzroy. You are an active member of the local Assembly of God church.
23 You come from a strong and loving family. Your wife and many members of your extended family attended court to support you. Many letters of recommendation have been presented on your behalf. Without exception, they speak of you as a hard-working, community-minded and trustworthy person. Mr Vafee, Chair of Liberians for Empowerment and Development (LEAD) Inc. has known you for ten years and wrote a reference for you. He describes you as:
"A valuable asset to the Liberian community of Victoria especially in the Youth Department where he regularly gives his spare time to help set up community sporting activities, functions and events".
24 Others speak of your shame at these charges. Those who know you attribute your offending to associating yourself with the wrong group of peers and say that with the support of family and community, it is unlikely you will offend again.
25 I accept that until this offending you were a person of otherwise good character. You have no history of drug or alcohol abuse. Since being remanded, you have done what you can to further your future prospects, including obtaining a Certificate II in Engineering. With this certificate you have been able to engage in work in the metals workshop whilst in custody on remand.
26 Having regard to these matters in addition to your previous good character and noting that the support of your family and community remains available to you, I consider your prospects of rehabilitation to be very good.
27 For the purposes of this plea hearing, you were assessed by Mr Bernard Healey, clinical psychologist, on 11 September 2015. Based on his assessment and testing, Mr Healey diagnosed you with a severe post-traumatic stress disorder which he says is exacerbated by your incarceration. He also assessed you with a full scale IQ of 72, where 97 per cent of people would do better, although noting that your limited English may have contributed to this score.
28 I have accepted and taken into account in sentencing you that your severe post-traumatic stress disorder will make the burden of imprisonment greater for you.
29 On your behalf, it was submitted that the burden of imprisonment will also be greater given the effect of the Migration Act (Cth) 1958 on your status as a permanent resident of Australia. Under that Act, the minister must cancel the visa of a person who fails the "character test", a term that is defined to include circumstances where a person is sentenced to a term of imprisonment of 12 months or more. Under the Act, the minister then has a discretion to revoke the cancellation decision.
30 The fact that you are at risk of deportation means that the imprisonment term I now impose will carry with it the uncertainty of knowing how the Minister will exercise this discretion. This uncertainty will weigh heavily on you in circumstances where your wife, child and extended family all now reside as citizens in Australia and you have no remaining family or associates living in Liberia. I accept that this uncertainty will be a significant burden for you in custody, particularly having regard to your pre-existing post-traumatic stress disorder. Combined, these matters have led me to moderate the sentence of imprisonment I would otherwise have imposed.
31 Today your counsel provided the court with a letter from the Victorian Government Solicitor's Office dated 24 June 2016 outlining the time you spent out of cell whilst remanded. After being remanded in police custody on 26 August 2015, you were transferred to the Metropolitan Remand Centre on 10 September 2015. For five days you were in lockdown, receiving one hour out of your cell, and from between two to five hours between 15 to 29 September. Since 29 September 2015 you have been allocated employment, which has significantly increased the amount of time out of your cell. Whilst I accept your initial experience of remand was more onerous due to the lockdown, I have given this limited weight in determining sentence.
32 It is accepted by the prosecution that you entered an early plea to the charge and that in doing so you have demonstrated a willingness to facilitate the administration of justice. I accept that your plea is accompanied by remorse and a sense of shame for your offending. You are entitled to a sentencing discount on the basis of your early plea.
33 Mr Zarwue, I am required to balance a number of separate principles when determining sentence. These include the matters set out in s.16A of the Crimes Act 1914 as relevant to the sentencing of Commonwealth offenders. While matters concerning your prospects for rehabilitation are important, in cases such as these general deterrence is the paramount sentencing consideration. As the Victorian Court of Appeal observed in Nguyen and Phommalysack, the difficulty in detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case. The sentence must signal to those involved at any level in drug importation that they run the risk of attracting a significant sentence. Otherwise the interests of general deterrence are not served.
34 I am also required to impose a sentence that is of a severity appropriate in all the circumstances of the offence. Other considerations include just punishment, specific (in addition to general) deterrence, denunciation, protection of the community and the factors relevant to your rehabilitation.
35 I have also taken into account, as I have already said, the fact that you are otherwise of good character. However, the authorities make it clear that prior good character in drug importation cases is generally given less weight as a mitigating factor. Therefore, your prior good character, whilst relevant, does not mitigate your sentence to a great degree.
36 On the attempted possession charge, your counsel urged me to impose a sentence that reflects time already spent in custody followed by a recognisance release order. The prosecution submitted that the imposition of such a sentence would constitute a sentencing error and I agree. Such a sentence would not reflect the objective seriousness of the offence and give appropriate weight to the sentencing considerations of just punishment and deterrence.
37 The prosecution provided the court with a table of sentences imposed in superior courts for generally analogous offending. Although I was somewhat assisted by the table of sentences imposed in this and other states for similar or like offending, ultimately the disparity of factors applicable to each case (for example, the existence of prior convictions) makes meaningful comparisons difficult.
38 Mr Zarwue, would you please stand.
39 On the charge of attempting to possess a marketable quantity of a border controlled drug you are convicted and sentenced to a term of 30 months' imprisonment. I direct that this sentence commence today, 24 June 2016.
40 I order that you be released after serving 18 months on a recognisance release order in the amount of $1,000, to be of good behaviour for a period of two years. This is not a sum you are required to pay now but may be payable if you do not comply with the order. The term of the order can also be varied or an application for discharge made.
41 On the charge of obtaining a financial advantage by deception, you are convicted and fined $900.
42 I declare that 303 days of pre-sentence detention be reckoned as having been served under the sentence and I direct that a declaration to that effect be entered into the records of the court.
43 Section 6AAA of the Sentencing Act 1991 requires me to state the total effective sentence and the non-parole period I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to three years and six months' imprisonment with a non-parole period of two years, three months.
44 Please have a seat.
45 Can I please ask counsel just to confirm pre-sentence detention of 303 days is correct.
46 MS FLINN: That is correct, Your Honour.
47 HER HONOUR: Are there any queries in relation to the sentence imposed?
48 MS GARDE-WILSON: No, Your Honour.
49 MS FLINN: No, Your Honour.
50 HER HONOUR: All right, we will adjourn the court.
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