Raafat Danaf v The Queen
[2020] VSCA 226
•7 September 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0073
| RAAFAT DANAF | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 September 2020 |
| DATE OF JUDGMENT: | 7 September 2020 |
| MEDIA NEUTRAL CITATION: | [2020] VSCA 226 |
| JUDGMENT APPEALED FROM: | DPP v Danaf (Unreported, County Court of Victoria, Judge Coish, 6 March 2020) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Leave to appeal – Sentence – Trafficking in commercial quantity of drug of dependence – 447 kilograms 1,4-Butanediol – Rolled up charge – Related summary offence of dealing with property suspected of being proceeds of crime – $241,200 cash – Total effective sentence of 6 years’ imprisonment with non-parole period of 4 years – Whether judge erred by finding no causal link between offending and personal circumstances – Whether sentence manifestly excessive – No prospect of less severe sentence if leave granted – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Theo Magazis & Associates |
| For the Respondent | Mr P L Bourke | Ms A Hogan, Solicitor for Public Prosecutions |
WEINBERG JA:
On 28 February 2020, the applicant, Raafat Danaf, pleaded guilty in the County Court at Melbourne to a rolled-up charge of trafficking in a drug of dependence in a commercial quantity (1,4–Butanediol). He was also dealt with for the related summary offence of dealing with property suspected of being proceeds of crime.
On 6 March 2020, the applicant was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Trafficking in commercial quantity of drug of dependence (1,4–Butanediol) [s 71AA(1) — Drugs, Poisons and Controlled Substances Act 1981] 25 years 5 years and 6 months Base Related summary offence — Dealing with property suspected of being proceeds of crime [s 195 — Crimes Act 1958] 2 years 1 year 6 months Total effective sentence: 6 years’ imprisonment Non-parole period: 4 years Pre-sentence detention declared: 693 days Section 6AAA statement: 8 year’ imprisonment with a non‑parole period of 6 years Ancillary orders: Forfeiture and disposal orders.
By notice dated 23 April 2020, the applicant seeks leave to appeal against that sentence on two grounds. They are as follows:
1.The sentencing judge erred by concluding that there was not a causal nexus between the applicant’s offending and his background, drug addiction, and his separation from his wife.
2.The sentence imposed on the charge on indictment (5 years 6 months), the sentence imposed on the summary charge (1 year), the order for cumulation made on the summary charge (6 months) and the non-parole period fixed (4 years) were each manifestly excessive.
For the reasons that follow, I would refuse leave to appeal on both grounds.
Circumstances surrounding the commission of the offences
In April 2018, members from the Drug Taskforce of Victoria Police commenced an investigation into the importation of 383 kilograms of 1,4-Butanediol into Melbourne. That substance was contained in 12 barrels that were shipped from China. That shipment was intercepted by the Australian Border Force and examined. Documentation described the substance inside the barrels as ‘glyoxal’. Subsequent analysis revealed, however, that the contents of the barrels were, indeed, 1,4‑Butanediol. The documentation also revealed that the consignee of the order was ‘Clare D’On Visage Pty Ltd’. The applicant was a director of that company. His phone number was also listed on the shipping documents as the consignee’s contact number.
In the early morning of 11 April 2018, members of the Drug Taskforce substituted the 1,4‑Butanediol with water. The barrels were then delivered to the applicant’s home. At about 10:00 am, police attended at that address and executed a search warrant. They located the 12 barrels in the garage. They also located $241,200 in cash in a safe in the house, as well as numerous documents linking the applicant to ‘Clare D’On Visage Pty Ltd’. In addition, they found documents relating to 1,4‑Butanediol. The applicant was arrested and remanded in custody.
On 18 April 2018, investigators were notified that a further 64 kilograms of 1,4‑Butanediol had entered Australia. The consignee was, once again, ‘Clare D’On Visage Pty Ltd’ and the listed contact number was that of the applicant. Like the previous consignment, this was to be delivered to the applicant’s home. The barrels in this shipment, however, were labelled as ‘ink-colour removal agent’. This consignment was seized by police and subsequent analysis confirmed that the barrels contained 1,4-Butanediol.
Sentencing remarks
After setting out the background facts, the judge turned to factors in mitigation. He noted that the applicant had pleaded guilty ‘at the earliest possible opportunity’ and that he was ‘entitled to have that fact taken into account in [his] favour’.[1] He also accepted that the applicant had expressed genuine remorse.
[1]DPP v Danaf (Unreported, County Court of Victoria, Judge Coish, 6 March 2020), [7] (‘Reasons’).
His Honour then considered the applicant’s personal circumstances. He noted that the applicant was 32 years of age, and had come to Australia from Lebanon at a young age. He had had an ‘unhappy childhood’,[2] which involved his parents having separated in Lebanon, and he subsequently suffered physical and emotional abuse from his grandparents and uncles. His early teenage years involved moving back and forth between Australia and Lebanon a number of times.
[2]Ibid [8].
The applicant has one daughter, who was born in early 2018. His Honour observed that the applicant was the primary carer for that child,[3] as he and his former partner had separated. The judge described him as having been ‘in a state of domestic disharmony at the time of this offending.’[4]
[3]That child is now in the care of the applicant’s mother.
[4]Reasons, [10].
Regarding the applicant’s work history, the judge observed that he had completed a mechanic’s apprenticeship. He had an ‘excellent work record’[5] as a mechanic and painter. Evidence on the plea indicated that the applicant intended to resume work as a painter when he eventually was released from custody. His brother was able to offer him employment in that regard.
[5]Ibid [9].
The applicant began using cannabis and methamphetamine when aged about 16. His use of methamphetamine escalated about 6 years prior to the offending, when he broke his leg. He then began to self-medicate with methamphetamine, reporting that it gave him a ‘boost’[6] and assisted his performance at work. By the time he was aged 30, the applicant was using methamphetamine on a daily basis. At this stage, he also used cannabis once a week.
[6]Ibid [11].
Regarding the applicant’s time in custody, the judge observed that he had used his time productively. He had been drug free since his arrest in April 2018, and had lost 30 kilograms whilst on remand. He had also completed a number of drug and alcohol courses, and worked as a food and yard billet. Regarding his prospects of rehabilitation, his Honour found them to be ‘guarded.’[7]
[7]Ibid [25].
The judge then turned to two reports prepared by Mr Luke Armstrong, a registered psychologist. Mr Armstrong had assessed the applicant on two occasions in August 2018, and once in August 2019. He found that the applicant had met the criteria required for a diagnosis of a ‘Stimulant Use Disorder’. Further, Mr Armstrong suggested that, on the basis of the applicant’s background and personality profile, he suffered from a ‘Personality Disorder’.
Of the offending, Mr Armstrong said that it was:
in my view, in part entangled within a framework of Personality Disorder and Stimulant Use Disorder. Mr Danaf’s drug addiction became a form of self-medication, essential in the emotional regulation of a disturbed and traumatised personality. [Mr Danaf’s] mental state drastically deteriorated when his wife abandoned he and his child within 3 weeks of the birth of Mr Danaf’s daughter. The circumstances of his wife leaving him mirrored his own trauma legacy of neglect and abuse.
The consequences were that Mr Danaf’s functioning spiralled into further dysfunction. His drug use escalated to counter overwhelming distress associated with the breakdown of a co-dependent relationship. He became less capable of providing a stable environment for his daughter within the context of a spiralling drug problem. Consequent guilt, magnified by his own childhood experience of neglect; impaired functioning as a result of drug intoxication; and withdrawal drove [Mr Danaf] to engage in offending. Specifically, a motivating factor that Mr Danaf continually referred to during his offending, was a misguided desire to provide a better life for his daughter than he had … experienced himself during his own childhood.[8]
[8]Ibid [16].
In that regard, the judge then turned to address a submission made by counsel for the applicant on the plea to the effect that there was a causal nexus between his client’s background, his drug addiction, and subsequent offending. It was also submitted that there was a causal link between the applicant’s separation from his former partner and the offending. Those contentions were disputed by the prosecution. While his Honour accepted that the offending took place against the background of the applicant’s own drug use, he found no causal link of any relevant kind between any of the applicant’s personal circumstances, and the trafficking of the drug in question.
The judge briefly addressed the 22 month delay between arrest and sentencing. He observed that the delay was relevant, but ‘not inordinate’ and ‘ought not attract a significant discount.’[9]
[9]Ibid [25].
Turning to the objective gravity of the offending, his Honour observed that the applicant’s offending involved a significant quantity of 1,4-Butanediol, and had been engaged in for profit. He described the applicant’s criminality as ‘very serious’, and noted that the conduct giving rise to the related summary charge of possession of the proceeds of crime was ‘a serious example of this summary offence.’[10]
[10]Ibid [26].
The judge considered the applicant’s criminal history to be relevant. It included a number of court appearances between 2010 and late-2017 for drug offences, assault, motor vehicle, and other weapons offences. At the time of the offending, he was undergoing a 12 month community correction order (‘CCO’) imposed in November 2017 for contravening a previous CCO, along with recklessly causing injury, and failing to answer bail. His Honour found this contravention of the CCO to be an aggravating factor.
The judge then turned to the requirement to take into account both specific and general deterrence. He said that he was ‘called upon … to manifest the community’s denunciation of [the applicant’s] conduct and generally to impose a just punishment’.[11] In his Honour’s view, that meant that he was required to impose an immediate term of imprisonment. Finally, he remarked that there ‘ought be some cumulation’[12] of the sentence to be imposed on the related summary charge. His Honour then sentenced the applicant as indicated above.
[11]Ibid [28].
[12]Ibid.
Conclusion
The applicant fell to be sentenced for trafficking in a commercial quantity of 1,4‑Butanediol, the total amount of that drug being 447 kilograms. A commercial quantity of that drug is 2 kilograms. Accordingly, the applicant trafficked in more than 220 times what the legislature has designated as ‘commercial trafficking’.
I note that a ‘large commercial quantity’ of 1,4-Butanediol is now 20 kilograms. There was no such category of offending relating to that drug at the time that the applicant committed these offences.
It has often been said that sentencing for drug trafficking is very much quantity based.[13] The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years’ imprisonment, and that, of itself, indicates just how seriously the legislature views conduct of this kind.
[13]R v Pidoto (2006) 14 VR 269, 278–9 [42]–[48]; [2006] VSCA 185.
The applicant proposes to rely upon two grounds of appeal if leave is granted. The first contends that the judge fell into specific error by rejecting a submission that there was a causal link between various aspects of his subjective circumstances, and his offending.
In particular, it was submitted that his Honour was not justified in rejecting the views expressed by Mr Armstrong in his reports, and in the viva voce evidence that he gave on the plea, to the effect that there was a causal link, of the kind required under Verdins,[14] sufficient to give rise to a reduction in moral culpability and moderation of the need for general and specific deterrence.
[14]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
Counsel for the applicant, in a well-constructed submission before this Court, argued that the cross-examination of Mr Armstrong on the plea did not justify the judge’s refusal to accept his opinion that the requisite causal link existed. In particular, the fact that the offence had been committed for profit (albeit to ensure that the applicant’s daughter would receive a better upbringing than the applicant had done), in no way cast doubt upon Mr Armstrong’s opinion. The applicant had been subjected to significant childhood abuse. The fact that he had managed to overcome the effect of that abuse, and established a good work record did not, of itself, mean that his moral culpability was not lessened.
Counsel relied, in particular, upon the well-known observations in Bugmy v The Queen,[15] on the subject of social disadvantage in upbringing as a mitigating factor. Counsel also relied upon this Court’s decision in Marrah v The Queen,[16] where it was said:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender’s social disadvantage has the same mitigatory relevance for all of the purposes of punishment. It may so explain the offender’s conduct that the offender’s moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending.[17]
[15](2013) 249 CLR 571; [2013] HCA 37.
[16][2014] VSCA 119.
[17]Ibid [16] (citations omitted).
The judge referred to the applicant’s disadvantaged background as a child, and the other matters said by Mr Armstrong to be relevant to the Verdins issues, in the following terms:
I have taken into account your disadvantaged background, drug addiction and separation as part of your personal circumstances. I do not, however, accept that there is any causal link between these factors and the offending. I have arrived at these conclusions for these reasons.
(1)I accept your childhood from ages seven to 13 was unhappy and it was characterised by much physical and emotional abuse. You did, however, enjoy two to three years of stability and academic excellence from about 13 to 15 years of age. You were then able to successfully complete your apprenticeship as a mechanic and remain in continuous employment. As stated, you have an excellent work record.
(2)The facts in respect of the circumstances of this offending are very brief indeed. I sentence you on the basis that you were the recipient of two consignments of drugs and you did so for reward. You had approximately $240,000 cash in a safe. It was submitted on your behalf that you were to be paid $60,000. The money was to assist you in raising your daughter and you received these consignments at the behest of another.
(3)You were 31 years of age at the time of the offending, a mature adult working independently as a sub-contracting painter.
(4) Your wife had left you in about January 2018.
(5)I do not accept, on the basis of these facts, there is any causal link between your childhood experience and these crimes.
(6)Further, given the scant information about the offending, I accept your offending was in the context of your drug use and separation but I do not accept any causal relationship between these factors and the offending. You committed this drug trafficking offence for money. I have no explanation in relation to the summary offence involving the possession of approximately $240,000 cash.[18]
[18]Reasons, [18]–[24].
In my view, the judge did not fall into error in dealing with the matters of social disadvantage and relationship breakdown in this way. This was drug trafficking on a large scale, carried out solely for profit. The fact that it was intended to use the money earned from this trafficking for the welfare of the applicant’s daughter does not seem to me significantly to reduce his moral culpability.
Whatever ‘disorders’ or other difficulties the applicant may have been suffering from at the time of the offending seem to me, as they did to the judge, to have had little causal connection, as a practical matter, to this drug trafficking enterprise. Even if specific error of the kind alleged could be shown, I consider that there is no reasonable prospect that a less severe sentence would be imposed. I would therefore refuse leave to appeal on ground 1.
Ground 2 complains of manifest excess. With regard to the trafficking charge, it can fairly be said that the sentence of 5 years and 6 months’ imprisonment for engaging in conduct of such objective gravity cannot be seen as wholly outside the range reasonably available to the sentencing judge.
It is true that the maximum penalty for the related summary offence was only 2 years’ imprisonment. The applicant received a sentence of 1 year for that offence, with 6 months cumulated upon the base sentence for trafficking in a commercial quantity. In some cases, a sentence of 50% of the maximum, particularly following a plea of guilty, might warrant close scrutiny. In this case, however, the amount of cash which formed the basis of the summary charge was more than $240,000. That is a very large sum when it comes to a summary offence of this kind. In my opinion, it was open to the judge to impose a sentence of 12 months’ imprisonment for that offence, albeit I acknowledge that a sentence of that order could be regarded as severe. That severity is attenuated to some degree by the fact that only 6 months of that sentence was cumulated on the sentence for the trafficking charge. Yet, plainly, these offences were quite separate and distinct, and warranted some measure of cumulation.
In any event, I consider that if leave to appeal were granted on the sole basis of a challenge to the sentence for the summary offence, the Court of Appeal would be likely to dismiss the appeal on the basis that no different and lesser sentence, overall, would be warranted.
For these reasons, I would refuse leave to appeal on ground 2, as well as on ground 1.
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