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Queensland Judgments
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  •   Notable Unreported Decision

R v Vakatini

 

[2020] QSC 107

SUPREME COURT OF QUEENSLAND

CITATION:

R v Vakatini [2020] QSC 107

PARTIES:

R

v

VAKATINI, Norman Rarua Dick Duke

(defendant)

FILE NO/S:

Indictment No 10 of 2020

DIVISION:

Trial Division

PROCEEDING:

Sentence

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX-TEMPORE ON:

31 March 2020

DELIVERED AT:

Cairns

HEARING DATE:

31 March 2020

JUDGE:

Henry J

ORDER:

Sentence imposed in accordance with ex-tempore reasons.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – HARDSHIP – TO OFFENDER – where the defendant was a drug courier intercepted carrying 99.432 grams of pure methylamphetamine – where the defendant was on bail and complying with bail conditions – where, in an era where matters were commonly adjourned due to Covid-19, the defendant opted to proceed to sentence rather than seek an adjournment – where, due to Covid-19,  no visitors would be allowed during a significant portion of the defendant’s possible period of imprisonment – where there was a possibility of stricter precautions being imposed during the course of the defendant’s period of imprisonment – whether the circumstances of the defendant’s period of imprisonment during the Covid-19 pandemic should be taken into account as a mitigating factor or a factor justifying a discount on the sentence

COUNSEL:

E Coker for the Crown

A J Kimmins for the defendant

SOLICITORS:

Director of Public Prosecutions (Queensland)

O’Reilly Stevens Lawyers for the defendant

Norman Vakatini, you pleaded guilty to possession of methylamphetamine with a circumstance of aggravation.  You were, you now acknowledge, transporting, essentially in the role of a courier, a substantial amount of methylamphetamine from Sydney to Cairns when you were caught by police, armed with a search warrant, in possession of the drug at Fishery Falls between Innisfail and Cairns.

The drug was contained in crystal form in a single clip-sealed bag inside a tissue box on the front passenger seat.  It was 71.3 per cent pure methylamphetamine, gross weight 139.457 grams, pure weight, 99.432 grams.  You denied knowledge of the drug being there.  Obviously, you knew it was there.  You were charged and bailed that day.  You have been on bail ever since.  The gross weight of the drug was pretty close to about five ounces.

It was inherently a commercial amount and it is not suggested otherwise.  Its wholesale value would have been well above $10,000, and its value assessed through street value sales would be much higher again.  No evidence was found to suggest that you yourself were a drug dealer, indeed, the entire circumstances are entirely consistent with you being caught acting as a courier of the drug.  Through your counsel, you do not dispute that, indeed, you acknowledge as much.  The psychologist who provided exhibit 3 indicated you anticipated, on your instructions, to receive two to two and a-half thousand dollars in payment for performing this task for unnamed criminals. 

You come before the Court without having ever been convicted of a criminal offence.  You were 26 at the time of the offence, and are now 27, so whilst you are not so young as to expect the degree of mercy that comes with sentencing youthful first offenders in their late teens or early 20s, you are still a young person with much of life ahead of you.

You are a Cook Islander.  You had some challenges growing up, some associated with the fact that you had to change your living environment in moving from the Cook Islands to Australia, and some associated with your mother’s separation and taking up with a different partner, and disruption and other problems making it a less than ideal environment in which to be raised.  That said, you have done reasonably well for yourself.  There is no serious suggestion that your deprivations growing up were so gross that they have remained a significant barrier to your success in life.

It is obvious, from what I have been told, that you have been able to secure good paid work in a number of fields.  In more recent years, that developed into you having an interest in cinematography, and you making a living out of making videos for clients, essentially as a sole trader, although occasionally using other subcontractors to help you perform the jobs that you secure in order to make videos for clients.  I have the impression that success was not financially brilliant and I cannot help but conclude that it is obvious that the lure of some easy money in performing the task you were performing when the police caught you was the underlying motivation for your commission of the offence.

The report from the psychologist speaks of you having had, after your apprehension, added nervousness in your living environment; feelings of paranoia, and not without some degree of justification, perhaps, given reports of threats and assaults from members of the drug community.  You informed the psychologist that you were on two occasions subject to physical assaults, and there were also constant threats of violence.  You were accused of being an informant for police when that, clearly, was quite inaccurate.  Someone else must have given the police the information to come armed with a search warrant to intercept you on a highway, and of course, you did not reveal any detail about your offending behaviour when you were spoken to by the police.

The upshot, though, was that you felt you had no choice other than to sell your vehicle and repay the criminals behind this, and that you did.  So the paranoia was well justified.  You were, in fact, threatened and assaulted, and I accept that you did sell your vehicle to pay the shortfall created by the fact that the drugs had been seized by police.  It may be going a little far to describe that as a form of summary justice.  I would prefer to categorise it as being a relevant consideration in informing the assessment of the importance of personal deterrence in this case.  It seems to me the experience in dealing with those criminals, along with the broader experience of having to engage with the criminal justice system on your arrest has probably provided a significant shock to you, and will itself serve as a strong deterrent, even without any penalty imposed by me today, against further drug offending.

You did offend in an era when you were more vulnerable to erroneous decision making or a lapse of judgment in your personal life, that being a breakup.  You were no longer with your partner and child.  I note that you aspire to continue to play a role in the upbringing of that still very young child, which is under the care of its mother.  The psychologist suggests that you were susceptible to impulsive and self-destructive behaviours and demonstrated maladaptive coping styles.  While there was insufficient evidence of a mixed personality disorder, it was noted that you did present with a cluster of symptoms consistent with a persistent depressive disorder, and that you appear susceptible to anxiety and mood disorders.  It was noted that you have some mixed personality and some history of substance abuse, although only recreational.

The psychologist recommends you should be encouraged to maintain employment, you should be encouraged to engage mental health services to seek psychological interventions and treatment for persistent depressive disorder and anxiety, and that you participate in a drug and alcohol program that involves educating you about relapse prevention strategies.  The impression overall from the psychologist’s report is that you were not crippled by any significant mental disorder at the time of this offending, but it does help explain why someone without a criminal history lapsed in such a very significant way from their former law-abiding existence.

It is, of course, the case that it was a significant lapse.  This was not some mere momentary offending.  You had to, it seems, on your own account inferentially, move your vehicle from where you lived on the Sunshine Coast, down to Sydney to collect the drug, and then drive all the way to where you were caught, so you had plenty of time to contemplate what you were doing.  That said, it was a once-off event in an era of poor judgment by a still young person who has got a good employment history, and who has already learned a significant lesson about what happens when you engage in conduct like this, not merely in respect of what may happen in Court, but what might happen in relation to the criminals that such offending involves associating with.

I accept from your letter that you, of course, greatly regret and are apologetic for your stupid behaviours, and I infer from most of the material in the psychologist’s report that you lacked insight at the time you were committing the offence into the true gravity of it, although I have no doubt you realised what you were doing was wrong. 

I bear in mind, in pegging the level of criminality here, that this is not a case in which I am dealing with a courier who was travelling with secret compartments in a vehicle modified for that very purpose.  To the contrary, there was a degree of amateurishness about the way in which you were performing your role, the drugs sitting, as they were, inside a tissue box on the front seat.

The authorities to which I have been referred were variable.  It would not be accurate to describe them all as strictly comparable, but they were all helpful in getting a feel for where you fall in the general scheme of things.  In my view, having regard to all the circumstances of the case, the appropriate head sentence is one of three years’ imprisonment.  In the normal course, because of your very good personal circumstances by way of antecedents and some other considerations – which I should highlight – I would inevitably have set a parole release date earlier than the halfway point.

Those other considerations include your early plea of guilty, you were committed for sentence.  In this case, though, there are some additional considerations that are a product of the present era in which we exist.  The first is this:  the Courts are presently reluctant, where a prisoner who is not in custody on remand awaiting sentence and is complying with bail conditions, to deal with the sentence of that prisoner, that is because of the challenges presented for Corrective Services with an incoming prisoner in the present era of high concern about the risk to public health posed by the spread of the Covid-19 virus.  Indeed, at the outset of this proceeding, we formalised your choice doubtless, on advice, you already knew existed, about delaying your sentence until a much later date.  It has to be said that many people who are criminals and have no real backbone would jump at the chance to postpone their punishment.  It is, I think, to your credit that you are prepared to face your punishment in the present era, and wanted to press on for sentence so that you could get your punishment over and done with.  So that is one consideration, I think, that fortifies my view about personal deterrence being a relatively low-rating consideration in the present circumstances.

The other consideration works in the following way.  There is presently an obligation on authorities such as Corrective Services dealing with their obligations to its staff and prisoners, to manage the risk posed by the spread of the Covid-19 virus.  There is an obvious need for Corrective Services to manage their jails to avoid their jails encountering a serious outbreak of the virus, akin to that recently seen in other closed environments, such as cruise ships.  The jails, on Friday last, moved to stage 3 restrictions.  This had the consequence that all but essential jail personnel and approved health officers and contractors may not visit jails.  Obviously enough, that means visits to prisoners cannot occur.

There is a risk, at any given point in time, that any specific jail may move to a stage 4 restriction.  That category of restriction would essentially involve lockdown of the jail.  One such correctional centre has already moved to stage 4 restrictions, namely Wolston Correctional Centre.  Inevitably, incoming prisoners will need to be isolated for two, perhaps three, weeks whilst it is ascertained whether or not they have the virus.  That elementary precaution may not involve complete isolation of a prisoner as a single individual, but will presumably involve a much more significant degree of isolation than would be experienced in the normal way as part of the general jail population.  I bear that feature in mind, but more materially, of course, I bear in mind the restrictions at which the jails are now operating, and the potential consequence of those restrictions in making jail an even more bleak and lonely experience than normal, at least for some time, for many prisoners.

Where, as here, prisoners will have to serve a substantial, if not all of their likely period of actual imprisonment during the era of stage 3 restrictions, with the overarching prospect of stage 4 restrictions occurring, it is just that a greater than normal moderation of the actual jail time component of the sentence ought occur.  In the present case, I had in mind, but for those considerations, arriving at a parole release date probably closer to the nine month mark than the 12 month mark.

In the upshot, though, allowing for the additional moderation to which I have just referred, I arrive at the view that it ought be set at about the six and a-half month mark, which would represent a reduction of about a quarter from the nine month mark, although I do not approach the matter mathematically.  That would take you to a release date of the 15th of October.  That will be your parole release date. 

Your sentence, then, is three years’ imprisonment.  I set your parole release date as being the 15th of October 2020.  A conviction is recorded. 

Close

Editorial Notes

  • Published Case Name:

    R v Vakatini

  • Shortened Case Name:

    R v Vakatini

  • MNC:

    [2020] QSC 107

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    31 Mar 2020

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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