Director of Public Prosecutions (Cth) v El Kerdi
[2015] VCC 1973
•11 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01266
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| V |
| ABUD EL HAMID EL KERDI |
---
JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 November 2015 | |
CASE MAY BE CITED AS: | DPP (Cth) v El Kerdi | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1973 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Verdon | |
| For the Accused | Mr N.A. Hutton | Mr T. Matazis |
HER HONOUR:
1 Abud El Hamid El Kerdi, you have pleaded guilty to one charge of producing tobacco seed, plant or leaf not being the holder of a licence (charge 1) and one charge of manufacturing tobacco seed, plant or leaf not being the holder of a licence (charge 2). Each of these offences carries a maximum penalty of two years’ imprisonment.
2 The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea which was tendered as Exhibit B. In brief, on 10 January 2014 a fire occurred at a property on the Geelong–Ballan Road, Moorabool. You were in attendance at the time and said that you were the owner of the property. You told another person that you lived at the property, which you were renting. Investigation by the Australian Taxation Office showed that you were the holder of a three-year commercial lease in relation to the property. The lease was for the period 1 December 2013 to
30 November 2016. The annual rent was $48,000.
3 Police executed a search warrant at the address and found three large commercial hothouses. The hothouses contained approximately 35,000 mature tobacco plants. Each plant was about two metres in height. The quantity of green tobacco seized from the property weighed 35,760 kilograms which equates to 4,361 kilograms of dried tobacco. The total potential excise payable was $2,215,431.61. The green tobacco seized is the subject matter of charge 1.
4 Later the police searched the house where you lived. In your garage the police found one large metal cutting machine containing a quantity of tobacco which weighed 504 grams, a large metal tobacco press, five cutting blades, and a quantity of tobacco collected from the floor of the garage weighing 228 grams. It is these manufacturing activities that are the subject matter of charge 2. The total potential excise duty payable on 732 grams of dried tobacco was $371.86.
5 Your pleas of guilty were entered at the second committal mention on 27 July 2015.
6 In sentencing you I have taken into account your personal circumstances, which were set out by your counsel and in the report from Mr Ian Mackinnon, psychologist, dated 30 October 2015 (Exhibit 1).
7 You are now 29 years old. You were born in northern Lebanon and came to Australia with your father when you were about 16 years old. You had a very limited primary school education. You lived in a rural area, with many of your extended family members and neighbours involved in armed conflict between various political groups. Your parents had separated when you were 14 years old. You came to Australia with your father, stepmother and siblings. Your father passed away in 2007 and in 2013 your biological mother came to live in Melbourne.
8 In 2008 you married a woman whom you had assisted to come to Australia from Lebanon. You have three children who are seven, six and two years old. You are effectively separated under the one roof from your wife. You have not worked for some time and your wife has apparently expressed her deep disappointment in you for not being able to establish ongoing employment and support your family adequately. Your wife works from home in providing childcare.
9 In recent times you have received assistance from the Islamic Coordinating Council of Victoria who were trying to arrange a traineeship in the abattoir industry for you. You have had some casual work in that industry.
10 Mr Mackinnon assesses you as having suffered from a depressed mood disorder of a moderate severe level for a longstanding period, with associated fugue state episodes and suicidal ideation. Mr Mackinnon says:
“These complex psychological difficulties appear to have made a significant contribution to Mr El Kerdi’s offending – contributing to a sense of hopelessness, pessimism and low self-esteem, adversely affecting his ability to reason and make sound judgment, making him more prone to irresponsible behaviour whilst also lowering his ability to consider the consequences of his actions.”
11 You told Mr Mackinnon that you had become involved in the tobacco crop enterprise after borrowing money and being unable to repay it. You could see no viable way out of your dilemma and agreed to work off the debt by your involvement in a tobacco crop enterprise.
12 Mr Mackinnon describes your difficulties in integrating into Australian society and difficulties in developing English-language skills. It is his opinion that you would probably not cope satisfactorily in a prison environment and he reports that you have indicated suicidal ideation in the event that you were imprisoned. Mr Mackinnon is of the view that you would be reasonably likely to cope with the demands of a community based order but due to language difficulties would need to have the order carefully explained. Mr Mackinnon says you would need to be provided with counselling by an Arabic-speaking therapist in order for the counselling to be effective.
13 You have admitted a prior criminal history which includes some offending to do with violence and possession of ammunition. In 2010 you were sentenced to three months’ imprisonment which was suspended for a period of 18 months. In 2012 you were placed on a community correction order for various offences, which was to last for 15 months and which included treatment and rehabilitation conditions. It appears that you have not breached either the period of supervision or the community correction order that was imposed. I had you assessed for a community correction order pending sentence. You were assessed as suitable and the report says you completed the previous community correction order.
14 In sentencing submissions your counsel relied on a number of factors in mitigation, including:
(a)Your plea of guilty,
(b)The delay from the date of the execution of the search warrant,
(c)Your lack of any outstanding matters and prospects for rehabilitation,
(d)Your limited prior convictions,
(e)The offending being of a short duration, of approximately 10 weeks,
(f)Your dependent family,
(g)Your good prospects for future employment, and
(h)The application of Verdins' principles in respect of your depression.
15 The prosecutor in sentencing submissions described some of the history of the provisions under which you have been charged and said that the purpose was to combat the trade in illegal tobacco which threatens to erode the excise revenue base. The prosecutor referred to a number of appellate cases and placed particular reliance on R v Kopa & Istogu; ex parte DPP (Cth) [2004] ALR 197 and R v Alibasic & Salajdjiza; ex parte DPP (Cth) [2002] QCA 108.
16 The prosecutor submitted that the delay in this case was not significant. She also submitted that there was no basis for Mr Mackinnon to conclude that you were suffering from depression at the time of this offending. The prosecutor submitted that the amount of lost revenue was significant, the operation was a sophisticated one and that your role was higher than that of a courier. The prosecutor submitted that the objective seriousness of this offending and the need for general deterrence and specific deterrence was such that an immediate tern of imprisonment should be imposed.
17 Your counsel in further sentencing submissions addressed the cases which had been provided. He submitted that it was apparent from the cases that the excise due per kilo had risen considerably over the years and that should be taken into account. Your counsel also sought to distinguish your situation from cases where a term of imprisonment had been imposed.
18 Abud El Hamid El Kerdi, this was a very large and sophisticated set up. It is clear that you knew that tobacco was being grown and that you were not merely reckless as to the nature of what was being grown. You played a significant role in giving your name to the lease and in being in attendance at the property. You were involved in the production of tobacco at a level that puts you above being a courier of illegal tobacco. You also processed tobacco at your house. I am sentencing you on the basis that as far as the growing is concerned you were following the instructions of others for a period of about 10 weeks. It is clear that you would not have had the funds to set up the production infrastructure or to make the lease payments. While the amount of excise avoided is not the only guide to the gravity of the offending, it has been regarded in the cases as a significant feature. The amount of excise avoided in the illegal crop is very large. By comparison the amount avoided in respect of the tobacco found at your home is very small.
19 I have taken into account when comparing the sentences imposed in previous cases that the excise rates have varied over time. What that means is that less tobacco will be produced to avoid the same amount of excise. As the gravamen of the offence is excise avoidance, the seriousness of the offending is determined more by the amount of excise avoided rather than the amount of tobacco produced.
20 As stated in Kopa and Alibasic, this type of offence is prevalent and general deterrence is a very significant sentencing consideration. The range of sentences able to be imposed is clearly constrained by the maximum penalty available but in view of the amount of excise avoidance involved in this case, it is my view that only a sentence of imprisonment to be actually served will deter others from becoming involved in this sort of enterprise. Specific deterrence must also be given weight in sentencing you given your willingness to participate in this scheme despite previously having had significant penalties imposed for different types of offending.
21 It is concerning that a previous community correction order did not have the rehabilitative effect hoped for. That said, you have limited prior convictions. You are still relatively young. You now have some prospects of employment and may benefit from further appropriate psychological treatment. I accept that you have reasonable prospects of rehabilitation.
22 You are entitled to a significant discount for your plea of guilty which has demonstrated your willingness to facilitate the course of justice. I accept that you are ashamed, embarrassed and regretful about this offending and that your plea of guilty is an expression of remorse.
23 I have taken into account in mitigation your depressive mental state but only to a very modest degree. I accept that you were more vulnerable to this proposal that a person without that mental state would have been. I have also taken into account that your mental state and your anxiety about your children will make imprisonment more difficult for you.
24 The matter has been hanging over your head for a period of time but that period of time is not unusual or particularly significant.
25 Having taken into account your circumstances and the matters in mitigation I remain of the view that only a sentence of imprisonment would be of appropriate severity in all the circumstances of this offending. Such a sentence is particularly important for the purpose of general deterrence, but also reflects the need for denunciation, just punishment and specific deterrence. I have taken the matters in mitigation into account in ordering release on a recognisance release order after serving part of that sentence.
26 The offending is closely interconnected and concurrent sentences are appropriate given the much less serious nature of the offending in charge 2.
27 On charge 1 you are convicted and sentenced to 12 months' imprisonment. that sentence is to commence today.
28 On charge 2 you are convicted and sentenced to 2 months' imprisonment, that sentence is to commence today.
29 The total effective sentence is 12 months' imprisonment.
30 I order that you be released after serving 6 months of that sentence on entering into a recognisance to be of good behaviour for a period of 6 months.
31 The amount of the recognisance would be $500 (no other conditions). You do not have to pay that amount. That amount can be forfeited if you breach the recognisance release order.
32 But for your plea of guilty I would have sentenced you to a term of imprisonment of 18 months with a non-parole period of 12 months under s.6AAA of the Sentencing Act.
- - -
HER HONOUR: Mr El Kerdi, what that would mean would be that you would serve 6 months' imprisonment and then provided you agree to this recognisance release order, then you would be released on condition that you promise to be of good behaviour for the second 6 months. If you committed further offending in that second 6 months you could be brought back to court before me, there would be a range of options available to me, those options include sentencing you to serve that second 6 months.
In a moment I am going to ask Mr Hutton to come with my associate to explain the document to you and to ask you if you agree and sign the document. By agree I mean consent to the recognisance release order and promise to be of good behaviour.
Can you please take your seat Mr El Kerdi. Now Ms Verdon, Mr Hutton, is there anything that I need to address that you can see immediately?
MS VERDON: No Your Honour.
HER HONOUR: All right thank you.
MR HUTTON: No Your Honour.
HER HONOUR: Mr Hutton, would you mind going with Ms Ollquist. Now have you seen Ms Verdon and Mr Hutton, the proposed recognisance release order?
MR HUTTON: No.
MS VERDON: I was responsible for drafting it - - -
HER HONOUR: Perhaps if you could both just check it just in case I've not crossed out the right bit or something or other.
MS VERDON: Yes Your Honour, that's fine.
HER HONOUR: All right thank you, thank you Mr Hutton.
MR HUTTON: I've explained that again Your Honour, and my client has signed the document.
HER HONOUR: Thank you very much indeed. Thank you. Is there anything further anyone can think of that I need to address at the moment?
MS VERDON: No Your Honour, nothing further.
HER HONOUR: Thank you.
MR HUTTON: No Your Honour.
HER HONOUR: Thank you both very much for your assistance, thank you
Ms Kyet for your assistance, thank you Mr El Kerdi, you can be taken down now, thank you.
- - -
0