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R v Yavuz (No 2) [2020] ACTSC 248

sentence — jointly importing a commercial quantity of a border-controlled drug offence contrary to s 307.1(1) and s 11.2A of Commonwealth Criminal Code — offence relates to 1771g of pure MDMA — nature and circumstances — s 16A(2)(a) — during offending period offender was in custody for unrelated but similar offending — Jabal provided funding to offender at least some of which was used to finance importations — offender was involved in joint commission to import at least commercial quantity of prohibited drug into Australia from about July 2017 — offender was aware of identity and role of overseas provider of consignments — offender was common link between Poulakis and Omari and Jabal — offender facilitated communication and degree of cooperation — offender was aware of decision to use ANU campus as delivery address — offender tasked Omari with communicating to Jabal that he wanted to recover $50,000 — offender’s authority and influence were such that Jabal immediately complied with demand for money —offender expected and received regular updates about status of second consignment — role of offender must be regarded as significant — offender not aware of precise quantity being imported but that they were involved in joint enterprise to import at least a commercial quantity — character — s 16A(2)(m) — six character references provided — it is not immediately apparent how statement of impeccable character from first reference squares with previous offending — references taken into account on sentence — prospects of rehabilitation must remain guarded at this time — antecedents — s 16A(2)(m) — offender actively participated in joint commission to import border-controlled drug while serving substantial term of imprisonment for multiple offences of similar but less serious nature — commission of offence while in custody or on conditional liberty is an aggravating feature on sentence — prior convictions demonstrate that present offence is not aberration or isolated offence — offending was motivated by financial gain — offender was involved in importation of drugs for profit — double counting must be avoided — guilty plea — s 16A(2)(g) — until recently in ACT offenders were not entitled to any discount on sentence for the utilitarian benefit of plea — amended s 16A(2)(g) puts beyond doubt that utilitarian benefit must be taken into account — co-offenders entered pleas at broadly same time as offender and pleas had similar utilitarian value — offender made severance application on day trial was scheduled to begin — plea although not entered at early opportunity had significant utilitarian benefit in that it prevented need to expend significant resources on lengthy trial — 15% discount allowed — contrition — s 16A(2)(f) — hearsay statements or statements made by offender which are not supported by offender giving sworn evidence should be treated with considerable caution — courts do not simply disregard evidence of remorse if offender does not go into witness box and give evidence — sentencing judge noted the remorse expressed in letter by offender — sentencing judge did not ascribe significant weight to the remorse — parity — Poulakis and Yavuz involvement in importation was more significant than that of Omari or Jabal — offender directed activities of syndicate — while there is broad equivalence in terms of hierarchy and role as between Poulakis and offender, offender had somewhat greater role in directional type behaviour — COVID-19 — it is necessary in individual case to take into account both health consequences and social consequences — AMC is managing health risks appropriately at this stage — no evidence before Court that offender is in high-risk category in relation to physical health consequences — social consequences are nevertheless of significance — while availability of limited social visits lessens social consequences of COVID-19 they do remain constrained and may well be suspended again — there is additional hardship attached to imprisonment due to COVID-19 pandemic — offender sentenced to 8 years’ and 6 months imprisonment with 5 year and 1 month non-parole period
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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