R v Takalubegash [2002] ACTSC 66 (17 July 2002)

Last Updated: 18 July 2002

THE QUEEN v NADER TAKALUBEGASH [2002] ACTSC 66 (17 July 2002)

CATCHWORDS

CRIMINAL LAW - Sentence - Drug offence - Factors to be considered - Prior indictment withdrawn and new indictment substituted - Substantial difference between charges on committal for trial, prior indictment and new indictment - Arraignment on substituted indictment - Guilty plea entered on substituted indictment - Plea entered at earliest practicable opportunity.

CRIMINAL LAW - Sentence - Factors to be considered - Offender's subjective factors.

Cameron v The Queen [2002] HCA 6 (14 February 2002)

Cameron v The Queen [2000] WASCA 286

R v Wong [1999] NSWCCA 420; 48 NSWLR 340

Harvey v R [2000] NSWCCA 253; 113 A Crim R 434

Ngui and Tiong v R [2000] VSCA 78; 111 A Crim R 593

No. SCC 138 of 2000

Judge: Higgins J

Supreme Court of the ACT

Date: 17 July 2002

IN THE SUPREME COURT OF THE )

) No. SCC 138 of 2000

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

against

NADER TAKALUBEGASH

REASONS FOR SENTENCE

Judge: Higgins J

Date: 17 July 2002

Place: Canberra

THE COURT ORDERS THAT:

1. On the charge of possession of a traffickable quantity of MDMA for the purpose of sale or supply, a conviction be recorded and a sentence of four years imprisonment be imposed.

2. A period of 18 months be fixed as the non-parole period.

3. The sentence and the non-parole period commence as from 20 September 2001.

4. The non-parole period will expire on 19 March 2003.

1. This offender has pleaded guilty to one count alleging that:

"... on the 18^th day of April 2000 ...[he] possessed a traffickable quantity of a prohibited substance, namely 3,4-Methylenedioxy-N,     á-dimethylphenylethylamine (MDMA) for the purpose of sale or supply to any person".

2. MDMA is popularly known as "ecstasy".

3. The offender was committed to take his trial on 1 August 2000 in respect of charges of:

§ Manufacturing methamphetamine

§ Possessing MDMA for the purpose of sale or supply

§ Supplying MDMA

§ Possessing MDMA

§ Possessing methamphetamine

§ Attempting to pervert the course of justice

§ Conspiring with 5 named persons and others to possess for supply a traffickable quantity of MDMA

§ Conspiring with those persons to possess for supply a traffickable quantity of methamphetamine

§ Possessing a traffickable quantity of methamphetamine for the purposes of sale or supply

4. A trial date was set to commence 11 April 2002. The trial did not commence as the Crown and the offender's legal representatives agreed that the prior indictment would be withdrawn and the current indictment substituted. Upon arraignment on the substituted indictment, the accused entered the plea of guilty referred to above.

5. The indictment of 14 April 2002 upon which the offender now comes to be sentenced is, therefore, substantially different from the charges before the Magistrates Court upon which committal orders were made and also different from the indictment originally filed.

6. It follows that, in according weight to the plea of guilty as a mitigating factor, I am required to regard the plea as one entered at the earliest practicable opportunity.

7. This follows from the recent High Court decision of Cameron v The Queen [2002] HCA 6 (14 February 2002).

8. In that case the appellant had been found in possession of a quantity of illicit drugs. He was remanded on various occasions over the next seven months. He offered then to plead guilty to an amended charge, changing "MDMA" to "Methylamphetamine".

9. He was then committed for sentence. The trial judge allowed only a 10% reduction of sentence. The appellant argued that this was an insufficient allowance. The Court of Criminal Appeal (Western Australia) disagreed (Cameron v The Queen [2000] WASCA 286).

10. The Court, per Pidgeon J, Ipp and Owen JJ concurring, said at [14] and [15]:

"The charge when first brought had the element of being a prohibited drug and if it contained the wrong drug, it would still have been open to the applicant at a much earlier stage to indicate that he did have a prohibited drug but it was methylamphetamine and not ecstasy ... it did not save the administration of justice to have the number of remands that there were and to have time set aside for the preliminary hearing."

11. The joint judgment in the High Court of Gaudron, Gummow and Callinan JJ acknowledges that the principle that to plead "not guilty", albeit not successfully, should not penalise an offender but that there should be a discount for a plea of guilty is "not without its subtleties". The rationale was expressed by their Honours in these terms, at [14]:

"Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing."

12. The relevant question, given that the timeliness of a plea is relevant to the extent of any discount for a plea of guilty, was said to be, at [19]:

"...not simply when the plea was entered but ... whether it was possible to enter a plea at an earlier time."

13. In that context, the Court of Criminal Appeal was held to have been in error in accepting that it was reasonable for the appellant to have pleaded guilty to an offence that wrongly particularised the relevant substance. It was said, at [24], an accused person should not be:

"... expected to acquiesce in procedures which might result in error in the court record or, indeed, in his own criminal record. At the very least, a plea of guilty to a charge wrongly particularising the substance he had in his possession would not necessarily provide the basis for a plea of autrefois acquit to a subsequent charge specifying the correct substance."

14. Kirby J concurred, though McHugh J dissented.

15. Kirby J noted that the usual discount for a timely plea of guilty in Western Australia had been 20 to 35%. The relevance of the plea, in his Honour's view, at [65], was:

"(4) The discount for a plea of guilty to the charge brought against the accused is to be distinguished from a discount for a spontaneous and immediate expression of remorse conducive to reform and for immediate cooperation with investigating police. The latter has always been treated as deserving of such recognition in the sentencing of an accused. In many cases such feelings of repentance will continue and manifest themselves in an early plea of guilty that is adhered to at the trial. Obviously, the timing of any plea of guilty has a large bearing on the credit that should be given to the prisoner. A plea of guilty at the last moment (as on the day set down for the trial) will ordinarily attract a smaller discount in sentence than one that is entered at the first reasonable opportunity. But even a belated plea will normally attract a discount." (Footnotes omitted)

16. On another aspect, his Honour favoured the view, at [70], that the particular discount be expressly identified. The timeliness of the plea is determined by identifying, (at [75]):

"... when it was reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced."

17. His Honour agreed with the majority that the first reasonable opportunity had arisen when the charge had been finalised. It was irrelevant that the appellant had earlier set up false denials and alibis. His opportunity for proper legal advice was also relevant.

18. It follows that, given the substantive difference between the charges originally laid and that contained in the indictment dated 14 April 2002, I must treat this offender as one who has pleaded guilty at the earliest opportunity reasonably open to him.

19. The offender was born in Tehran, Iran on 21 January 1967. His parents are still alive but elderly and in poor health. The family had suffered hardship in Iran. Some of his five siblings live in Australia.

20. The offender is married with two young children. I must take into account the impact of any sentence upon his family.

21. Whilst the offender attended school in Canberra, he did not go beyond Year 11. He felt his English skills let him down. However, he did obtain employment as a security doorman and then as a pizza cook. After his marriage he also worked for a year in the building industry for his father-in-law.

22. Nevertheless, the family initially prospered. He and his wife, after four years, owned their own home with only a $70,000 loan.

23. The offender began work at the Fyshwick Markets in a fruit and vegetable business. The owner sold the business to his two sons and the offender. It cost $170,000.

24. The work was very time consuming. The offender looked for employment that could allow him more time for his family. He sold his share for $350,000, remaining on friendly terms with his former partners.

25. He had by then bought a second (investment) house and a commercial building. He opened a mechanic's shop at Hume.

26. He entered into a business arrangement with a friend called Jason. The latter had the idea of buying vehicles in Japan, not released in Australia, importing, and then selling them here. They traded as Mastrix Imports. The vehicles they purchased were, in effect, discarded trade-ins but only three years old.

27. Disaster struck when police seized the stock and charged the offender with offences relating to stolen property and illegal importation. It is significant that all charges were eventually dismissed. However, defending the proceedings ruined the offender financially. His business was destroyed. His marriage was placed under great strain. The offender and his wife separated. He attempted suicide by consuming an overdose of amphetamines. He had commenced taking amphetamines to cope with his feelings of loss after he and his wife had separated.

28. It was after this that he became involved in trafficking in MDMA. He states that his offending behaviour was strongly motivated, not merely by a need for the drug, but by a desire to both rebuild his wealth and redress the perceived injustice done to him by the legal system.

29. The present offence is to be viewed in the context of a course of dealing from about 18 February 2000 to 18 April 2000. On that latter date, pursuant to information gleaned from covert surveillance, police raided the offender's garage finding two co-offenders and the drugs referred to in the charge, as well as drug-related paraphernalia.

30. The quantity of MDMA seized is, it appears, the largest single quantity seized in this Territory, albeit by only a small margin.

31. The offender has some prior criminal history, a common assault in 1990 and an assault occasioning actual bodily harm committed in March 1998. He has some traffic convictions. There are no drug-related offences.

32. The offender was refused bail and was, accordingly, held in custody from his apprehension on 18 April 2000 until 19 January 2001. His bail was revoked upon the hearing of evidence on sentence on 24 June 2002.

33. Since his release on bail, the offender has reconciled with his wife. He has expressed remorse and a resolve not to engage in further criminal activity. He has ceased drug use and says that he attempts to dissuade others from doing so.

34. There is some support for this from Ms Lauren Taylor, Welfare Officer at Belconnen Remand Centre. She reports his efforts to overcome his addictions. He engaged conscientiously in various self-improvement courses whilst in custody. He is accepted by friends and neighbours, it seems, as a law-abiding, hard-working family man.

35. Yet he has committed a very serious offence. It carries a maximum penalty of 25 years imprisonment. It was a (relatively) large-scale operation. It appears that the offender, if not the ring-leader, was clearly directing the operation, at least in the sense of providing its base.

36. Whether he was the director of the drug trafficking or a courier between the co-offenders who distributed the drugs to street dealers and a more significant supplier, I cannot say. I must not make adverse assumptions in the absence of evidence establishing that fact to the criminal standard of proof.

37. I was referred to a number of sentences handed down between 18 May 2000 and 31 May 2002. Those sentences do indicate that those who participate in organised drug rings for profit, albeit they may also be addicts, must expect a custodial sentence of which a significant portion must be served.

38. This pattern has, no doubt, been influenced by the guideline judgment of the New South Wales Court of Criminal Appeal in R v Wong [1999] NSWCCA 420; 48 NSWLR 340 ("Wong and Leung").

39. However, two qualifications on the range of sentences offered in that case need to be observed. The first is that it concerned heroin illegally imported for distribution in Australia. The second is, of course, that whilst quantity of the drug possessed or supplied is highly relevant, quantities relative to a traffickable quantity will vary. With heroin and amphetamines, the traffickable quantity is 2 grams. For MDMA it is 0.5 grams.

40. In Harvey v R [2000] NSWCCA 253; 113 A Crim R 434, Sperling J (Fitzgerald JA and Whealy J concurring) noted that amphetamine, to which MDMA is, though more concentrated, analogous, attracts less criminal responsibility than heroin or cocaine. Further, a "mere courier" of a low level of a high-range drug can expect to attract less punishment than those playing a part in the planning or organisation of the enterprise.

41. Further, in Ngui and Tiong v R [2000] VSCA 78; 111 A Crim R 593, per Winneke P (Callaway and Buchanan JJA concurring), it was said of Wong and Leung (at 598):

"... the utility of the relevant guidelines expressed in Wong and Leung will be as a "sounding board" or a "check" against the exercise of the sentencing judge's discretion. In truth they cannot be anything more because they do not assume to take into account many factors which, in the individual case, will bear upon the level of the appropriate sentence to be imposed."

42. It is to be noted, as an aggravating factor, that the 999 pills located contained 93.257 grams of MDMA. That falls within, though to the lower end of, the range specified as traffickable quantity.

43. It seems to me, therefore, having regard to the distinction referred to in Harvey's case, the starting point absent any mitigating factors should be six years imprisonment.

44. Whilst the sentences imposed on Gregory Martin Hinton, Royce Alfred Jacobs (also a co-offender in this case) and David Alexander Salasch are the most closely analogous of those to which I was referred, it seems to me that a combination of the offender's subjective factors and his plea of guilty combined with genuine remorse leads me to consider that a head sentence of four years is appropriate in this case.

45. I have also to take account in the overall sentence of the need for appropriate punishment and deterrence whilst promoting, so far as practicable, the offender's rehabilitation. This offender does have good prospects for rehabilitation.

46. NADER TAKALUBEGASH stand:

47. On the charge of possession of a traffickable quantity of MDMA for the purpose of sale or supply, I record a conviction and sentence you to four years imprisonment.

48. I fix a period of 18 months as the non-parole period.

49. The sentence and the non-parole period will commence as from 20 September 2001 to reflect time spent in custody before sentence. The non-parole period will expire on 19 March 2003.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Sentence herein of his Honour Justice Higgins.

Associate:

Date: 17 July 2002

Counsel for the Crown: Mr A Robertson

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the Accused: Mr J Korn

Solicitor for the Accused: Sheila Foliaki-Singh & Associates

Date of Hearing: 24 June 2002

Date of Judgment: 17 July 2002