Director of Public Prosecutions v Ahmad
[2012] VCC 1102
•31 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-02237
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NADIM AHMAD |
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JUDGE: | HER HONOUR JUDGE THORNTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 July 2012 | |
DATE OF SENTENCE: | 31 July 2012 | |
CASE MAY BE CITED AS: | DPP v Ahmad | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1102 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentence – plea of guilty – trafficking in a drug of dependence – ill health of defendant – age of defendant – total effective sentence of 2 years 9 months’ imprisonment – no parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Sampson (Plea) Ms N. Resstel-Pires (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr L. Gwynn | Tait Lawyers |
HER HONOUR:
1 Nadim Ahmad, you have pleaded guilty to Charge 1, trafficking in a drug of dependence, namely, methylamphetamine and Charge 2, trafficking in a drug of dependence, namely oxycodone. These offences occurred at Seymour on 2 November 2009 and the maximum penalty for each charge is 15 years’ imprisonment.
Circumstances of the offending
2 The prosecution have tendered a statement of facts which forms the basis of this sentence.[1] You have largely accepted the statement of facts but your counsel highlighted that the prosecution do not rely on your possession of cash as part of the charges. I have disregarded the references to your possession of cash in that statement. You do not agree with the prosecution's submission on sentencing range for the offences.
[1] Exhibit A
3 Briefly, the circumstances of the offending are that you were returning from a trip to Sydney on 2 November 2009 when you met with a male on the Hume Highway near the Euroa Shell Service Station and purchased 60, 80 mg tablets of OxyContin prescription medication for $1,200.00.
4 At approximately 1:10 a.m. you were intercepted by police travelling south on the Hume Freeway between Euroa and Seymour. You were driving a sedan towing a box trailer containing a large number of pot plants. Brown powder in a snap lock plastic bag was found buried in another plastic bag in the soil of a pot plant in the trailer. This was later analysed and found to contain methylamphetamine and weighed 350.8 grams. The approximate purity was 2.5%.
5 On the same day your home in Moe was searched and a small bag containing white crystal was located in the glove box of a Ford utility. This was later analysed and found to contain methylamphetamine with a weight of .1 gram. A “deal bag” containing 20 yellow coloured tablets was found behind the seat in another utility. Approximately 300 small plastic deal bags and kitchen scales were found.
6 When interviewed by police, you denied the allegations but admitted purchasing the 60, 80 milligram OxyContin tablets in Euroa on the way back from Sydney where you had been for one week to do some maintenance. You told police that you were a regular user of OxyContin, which had been prescribed by your doctor.
7 The traffickable quantity of methylamphetamine as listed in Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 is three grams.
8 The OxyContin tablets were analysed and contained oxycodone and the trafficable quantity of oxycodone is five grams.
9 You have pleaded guilty to Charge one on the basis that you trafficked in methylamphetamine on 2 November 2009 having 350.9 grams of methylamphetamine in your possession for sale.
10 You have pleaded guilty to Charge two, on the basis that you trafficked in oxycodone on 2 November 2009. The quantity you admit is 60, 80 milligram tablets which were located in your possession at the time you were intercepted by police. The quantity of oxycodone is 4.3 grams.
Your background
11 You are 73, born in Syria and immigrated to Australia in 1972 at the age of 33. You worked originally as a factory hand in Sydney and subsequently had a number of tobacconist shops there. You have been unable to work due to illness and drug addiction to oxycodone since 2004. You married when you arrived in Australia and separated and divorced 39 years ago. You remarried but separated from your second wife, who now resides in Sydney.
12 You have five children from your first marriage, four sons and one daughter who are between the ages of 39 and 49. You have been visited by your children and particularly your daughter, Rona, in custody. You have 20 grandchildren and four great grandchildren.
13 At the time of this offending you were on parole from a sentence imposed by the Court of Appeal in March 2007 for charges of trafficking and possession of a drug of dependence. A total effective sentence of six years' imprisonment with a non-parole period of three years and six months' imprisonment was imposed. The original sentence which you successfully appealed had been imposed at the Melbourne County Court in March 2005.
14 In May 2005, in the Moe Magistrates court you were convicted and sentenced to an aggregate period of five months' imprisonment to be served concurrently for charges of possession of ecstasy, handling stolen goods and drug trafficking.
15 Your first sentence of imprisonment was imposed in 1998 in the County Court for being knowingly concerned in the importation of drugs and you served 3 1/2 years' imprisonment with a non-parole period of two years' imprisonment. You also appeared in the Magistrates Court in 1981 and 1991 for firearm offences where you were fined.
16 In 2004, in the Magistrates Court you were convicted and imprisoned for dishonesty offences.
17 You have spent a considerable time on remand for more serious offences which have not proceeded.
18 You have serious health issues and multiple medical conditions. You were diagnosed in 2002 with non-Hodgkin's lymphoma and are presently in remission. You have chronic liver disease caused by Hepatitis B infection, chronic back pain and suffer from a condition known as guttate psoriasis which is currently not responding well to treatment because your treatment would involve the use of a substance which is prohibited in the prison environment. This condition causes you discomfort and significant pain affecting your legs and extends up to your waist. You currently suffer from extensive welts in that area.
19 At the time of this offending, you had been prescribed OxyContin medication for your chronic back pain and developed an addiction to that medication which contains oxycodone. You are no longer prescribed that medication and are now in remission from your oxycodone addiction. You remain on a separate medication for your liver, your chronic back pain and medication for your stomach because of the side effects of the other medication.
Further Sentencing considerations
20 The maximum penalty of 15 years’ imprisonment for trafficking in a drug of dependence reflects the fact that all drugs proscribed by the Drugs, Poisons and Controlled Substances Act 1981 have deleterious consequences and the crime of trafficking is therefore serious.
21 The purposes for which a court may impose sentence are punishment to an extent and in a manner which is just in all the circumstances; deterrence, both specific and general; rehabilitation; denunciation and/or protection of the community.
22 In sentencing you I must have regard to a range of matters such as the seriousness of the offences, your culpability, your personal circumstances and those of any victims. There are no victim impact statements in a case such as this, but there is potential for illegal drugs to wreak harm in the community. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
23 I have taken into account the sentencing statistics when considering current sentencing practices.[2] However, in the case of trafficking in particular, the statistics encompass a wide spectrum of conduct so that they must be interpreted with caution. Each case must be considered on its own particular facts and no two cases are ever the same.
[2]Sentencing Snapshots No. 100 dated June 2012.
24 Both general and specific deterrence are relevant in your case because these offences were committed within two months of the expiration of your parole for a sentence imposed on charges of trafficking and possession of a drug of dependence. You have a prior criminal history of drug offending. However, I take into account as a mitigating circumstance on Charge one, the fact that the purity of the methylamphetamine was only 2.5%[3] and the trafficking occurred on one day.
[3]Trajkovski v R [2011] VSCA 170 at [124] and [127].
25 I accept your counsel's submissions concerning your poor health which includes chronic back pain. I accept that you were prescribed Oxycontin medication at the time of your offending and that you became addicted to that medication and that this has contributed to your offending for Charge two.
26 In the case of charge two, there a number of mitigating circumstances which include the following: that the offending occurred in the context of a serious drug addiction to prescribed OxyContin medication; the drug was found by police close to source, you having purchased it in Euroa, less than one hour before being intercepted; and was a small quantity (less than the deemed traffickable quantity of oxycodone); and the trafficking occurred on one day.
27 There is real utility in your guilty plea which has saved the community the time and expense of a long trial. Your negotiated plea may be considered as an early plea, as you have been in custody awaiting trial on more serious charges. This is deserving of a sentencing discount.[4]
[4]Cameron v R (2002) 209 CLR 339.
28 The time that you have served as presentence detention has been difficult due to your age and poor health, no doubt exacerbated by the delay whilst your charges were negotiated and awaiting trial for more serious offences. I accept as a mitigating factor, your poor health which makes imprisonment a greater burden on you than an average prisoner who does not suffer from any illness.[5] An example of that additional burden is the fact that in prison you have been unable to access your usual steroid ointment for treatment of your serious extensive guttate psoriasis. This is because that substance is prohibited in the prison environment. This has caused you significant pain and discomfort because your condition is not well controlled as it was when you had access to that medication.
[5] Callaway JA at pars 30-33 R v Boxtel [2005]VSCA 175
29 I accept that you have good prospects of rehabilitation having attended courses and rehabilitative programs and being drug-free in custody[6]. You have the support of your family and particularly your daughter who has confirmed that she will accommodate you in her family home on your release from custody.
[6] Exhibit 2
30 The Parole Board has taken no action in respect of the parole you were serving at the time of the commission of these offences and the prosecution have confirmed from central records at the prison that there are no other matters for which you are being detained. Under s.5(2AA) of the Sentencing Act 1991, I must not have regard to any possibility or likelihood that the length of time actually spent in custody by you will be affected by executive action of any kind.
31 Relying on the case of Piacentino,[7] both counsel for the prosecution and counsel for defence submitted that s.16 (3B) the of the Sentencing Act 1991 does not apply to your circumstances because the Parole Board has taken no action and there is therefore no parole sentence upon which to order any cumulation. I accept that submission, but in the event that the interpretation is wrong, I would find the existence of exceptional circumstances in this case for directing that there be no cumulation. I find that there are exceptional circumstances, being a combination of factors which are the delay, the circumstances of your poor health in which the pre-sentence detention has been served, your age and the prosecution submissions on sentence.
[7]R v Pizentino ; R v Ahmad [2007] VSCA 49.
32 In all the circumstances which include the matters I have mentioned, and particularly your age and the delay, I consider that it is inappropriate to impose a term of imprisonment providing for parole, and I propose to impose a sentence which will be entirely satisfied by your pre-sentence detention but for one day.
33 I have taken into account the prosecution submission that the non-parole period of between 2 and 2 1/2 years would be within range for a total effective sentence.
Sentence
34 On Charge 1, trafficking in a drug of dependence, namely, methylamphetamine, you are convicted and sentenced to two years and nine months’ imprisonment.
35 On Charge 2, trafficking in a drug of dependence, namely oxycodone, you are convicted and sentenced to one month imprisonment.
36 I direct that the sentence imposed on Charge 2 be served concurrently upon the sentence imposed on Charge 1.
37 That makes a total effective sentence of two years and nine months’ imprisonment.
Pre-Sentence Detention
38 I declare that 1,002 days of pre-sentence detention be reckoned as already served on this sentence, and that such declaration be entered in the records of the Court.[8]
[8]Sentencing Act 1991, s.18.
Section 6AAA Sentencing Act 1991
39 Section 6AAA of the Sentencing Act 1991 requires that where I impose a less severe sentence than I would otherwise impose because of the plea of guilty, I state the sentence and the non-parole period, if any, that I would have imposed but for the plea of guilty.
40 Accordingly, I indicate that if it were not for the plea of guilty, I would have convicted you and sentenced you to a total effective sentence of four years’ imprisonment with a non-parole period of three years’ imprisonment. So I have taken into account the plea of guilty and the sentence has been reduced. It is important to note that in sentencing you, I have particularly taken into account your plea of guilty and decided, having regard to the time that you have spent in custody, that it is unnecessary to make an order providing for parole.
Disposal order
41 The prosecution have made application for a number of items listed in the schedule be forfeited, being instruments or devices or substances that were used or intended to be used in or in connection with the commission of the offences. I am satisfied that pursuant to s.78(1) of the Confiscation Act 1997, that the forfeiture to the State of the property referred to in the schedule is appropriate and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from today or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. I note the application for the disposal order is not opposed.
42 I will provide you with a copy of those orders that the prosecution have signed.
43 MS RESSTEL-PIRRES: Thank you, Your Honour.
44 HER HONOUR: Any queries in relation to any of that, Mr Gwynn?
45 MR GWYNN: No, Your Honour.
46 HER HONOUR: Thank you.
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