R v Dogan [2019] NSWDC 385

District Court New South Wales

Medium Neutral Citation: R v Dogan [2019] NSWDC 385 Hearing dates: 16 April 2019 Date of orders: 16 April 2019 Decision date: 16 April 2019 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: A term of imprisonment of four years, two months with a non-parole period of two years, one months: at [14]. Catchwords: SENTENCING — Mitigating factors — Good character — Plea of guilty — Remorse — Remorse — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Form 1 offences — Circumstances of offence — Deterrence SENTENCING — Subjective considerations on sentence — Special circumstances Legislation Cited: Crimes Act 1901 Drug Misuse and Trafficking Act 1985 Cases Cited: R v Stanbouli [2003] NSWCCA 335 Texts Cited: Nil Category: Sentence Parties: Regina (Crown)

Erkan Dogan (Offender) Representation: Mr P Low (Crown)

Mr B Vasic (Offender) File Number(s): 2018/118046

Judgment 1. A very powerful subjective case has to be balanced against a very serious offence which carries a maximum penalty of life imprisonment. This is an unusual case because the charge of knowingly take part in the supply of a large commercial quantity of prohibited drug, thought to be 11 kilograms of cocaine, was not in fact that. Erkan Dogan, who has just spent his 33rd birthday in custody after his arrest on 13 April 2018, pleads guilty to a count of knowingly take part in the supply of a large commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1985, which carries a maximum of life imprisonment with a 15 year standard non-parole period. 2. There is a Form 1 offence under s 193C(2) of the Crimes Act 1901, of deal with $18,400 being reasonably suspected of being the proceeds of crime. It carries a maximum penalty of three years and will be dealt with in the way suggested by the Chief Justice on the guideline judgment on Form 1 matters. 3. His plea at an early opportunity entitles him to a 25% discount for the utilitarian value of the plea. It is conceded that there is no alternative but for a term of fulltime custody and it is unnecessary to consider any alternatives. 4. In short, the facts demonstrate the involvement of an undercover operative (UCO) and a person known only as Liberate through a secure instant messaging service. The facts are very detailed and they set out conversations which the offender had with the UCO. As Mr Vasic points out, a number of his unguarded comments were made when he did not know that he was being recorded, clearly pointing to him having little or no knowledge of the operation. The relevant facts that need to be taken into account in assessing objective seriousness and moral culpability are, as Mr Vasic points out, that the supply was not actually a prohibited drug because Police had previously prepared 11 packages each containing a kilogram of an inert substance resembling cocaine for use in the operation. 5. Mr Dogan transported the 11 kilograms of powder believing it to be cocaine from Leichhardt to Riverstone. Three days earlier he had delivered the money for its purchase. There was a conversation between he and the UCO which reflected his low position in the hierarchy or supply network when he said words to the effect, "honestly, I have no idea" indicating that he had not seen the money and he indicated that the UCO should speak to others in the organisation for any further details and when the UCO told him there was 11 kilos, he said "seriously", indicating that he was not privy to any of the negotiations taking place between Liberate and the UCO. There is no evidence that he was involved in the financing, planning or organisation of the offence. He did not direct any other people in the operation or provide instructions. He did not attempt to disguise himself in dealing with the UCO. He even introduced himself by his own nickname, and his role is perhaps not inaccurately described by Mr Vasic as being the canary in the coalmine, that is the person who was most exposed to being arrested, as turned out to be the case. 6. He is essentially a person of good character. The only matter on his record is a low range PCA in 2015 and two other minor driving offences dealt with by a bond and a fine. 7. His time in custody since 13 April 2018 has been marked by considerable energy and effort at proving that this was a one-off episode of offending. The assessment and planning officer at Silverwater describes him in terms that one rarely sees prisoners described, namely that: "His motivational energy is outstanding and his standards for achievement are exceptional and he works appreciatively and respectfully with officers, inmates and non-custodial staff" And he is: "Extremely confident that he will achieve his education and goals. He is always thoughtful and courteous". 1. There is, as I have indicated, a wealth of subjective material starting with a lengthy handwritten note from the offender. I take into account the fact that it has not been adopted or tested, but in view of the significant amount of corroborative material, it is a reasonable basis upon which to proceed and there is no challenge to the history and expressions of remorse and regret set out in that letter and in the material provided by others who have spoken to him while he is in custody. 2. I accept that this has been a salutary lesson for him and he is determined to make a positive contribution to his country on his release. He has engaged in extensive study and is achieving high distinctions in his assignment results and he is committed to setting a great example to his family, partner, social circle, unborn children and the wider community. His academic records demonstrate that commitment and references from his mother, his siblings and his fiancé also speak of his otherwise good character and determination to do all that he can to remedy the mistake that he has made getting involved in this operation. People outside the family also speak highly of him in a number of references. 3. The history to which I have briefly referred to in a number of reports is summarised in the psychologist's report. It discloses that he came to Australia with his mother and his siblings at the age of nine after his father had come out here in 1988. There was a stable upbringing with strong family values. He was a good student. Unfortunately he began using cocaine recreationally at age 27 on a few occasions a year. There is a diagnosis of a gambling disorder but not suggested to be of any causative relevance here. 4. A number of mitigating factors are apparent, namely the absence of any significant record, his relatively good character, he is unlikely to re-offend, his prospects of rehabilitation have been demonstrated and are likely to continue to be very good and he has shown remorse and regret and he has pleaded guilty. There is no anti-social indicia. He is engaged to be married and has a close supportive family and he has taken responsibility for his offending. 5. I take into account, as the Crown concedes, that the likelihood of harm to the community from this inert substance is not a factor to be taken into account as distinct from situations where drugs have been involved and I have been referred by Mr Vasic to what was said by Basten JA in R v Stanbouli [2003] NSWCCA 335 because the supply of the inert powder could never cause the harm which the supply of prohibited drugs could. 6. The significant subjective case and the unusual objective features moderate the need for general and specific deterrence in my view. 7. The orders that I make are: 1. The offender is convicted of the offence. 2. Taking into account the Form 1 offence (004), I impose a sentence of imprisonment of 4 years, 2 months to commence on 13 April 2018 and expiring on 12 June 2022. 3. I impose a non-parole period of 2 years, 1 month, expiring on 12 May 2020. The offender is eligible for release to parole on that date. 4. I find special circumstances on the basis that this is his first period in custody and there is a need for continued supervision on his rehabilitation on his release. Note – These extempore remarks were revised without access to the court file