Director of Public Prosecutions v Ahmed

[2024] VCC 403

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01371

DIRECTOR OF PUBLIC PROSECUTIONS

v

AZZAM AHMED

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF TRIAL	4 – 8 March 2024
DATE OF PLEA:	15 March 2024
DATE OF SENTENCE:	27 March 2024
CASE MAY BE CITED AS:	DPP v Ahmed
MEDIUM NEUTRAL CITATION:	[2024] VCC 403

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Trafficking in a drug of dependence – possession of a drug of dependence – methylamphetamine - cocaine

Legislation Cited:  Drugs, Poisons and Controlled Substances Act 1981 (Vic)

Cases Cited:R v Ahmed [2007] VSCA 270; Bugmy v The Queen [2013] HCA 37; Zarghami v The Queen [2020] VSCA 74

Sentence:  4 years’ 6 months’ imprisonment

NPP 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr E. Dober	Office of Public Prosecutions
For the Offender	Mr D Edwardson KC Mr A. Imrie	Kaczmarek Grigor Lawyers

HER HONOUR:

1Azzam Ahmed, on 8 March 2024 you were found guilty by jury verdict of four offences that occurred on a single date.  Indictment No. M12199291.1 relates to the offences in the trial, namely:

CHARGE	OFFENCE	MAXIMUM PENALTY
Charge 1	Trafficking cocaine	15 years’ imprisonment
Charge 2	Trafficking methylamphetamine	15 years’ imprisonment
Charge 3	Possess cocaine	1 year imprisonment
Charge 4	Possess methylamphetamine	1 year imprisonment

2On 20 October 2021, a search warrant that had been issued was executed by police at a property in Simpson Street, Moorabbin, a factory building with areas that had been converted into residential premises.  At the relevant time, your business had entered into a contract to purchase the premises.  You provided that address to police as your own and you had access to it, pending settlement.  When the police attended you were present, as were several other people.  I will now summarise the facts of the case in accordance with the evidence given in the trial.

3Police searched the premises.  A plantroom that housed air conditioning units was located at the rear of the area upstairs and locked by padlock.  Police forced their way into the plantroom.  On a table a number of items were located, including:

§your wallet;

§a small plastic bag inside your wallet which contained 0.9 grams of cocaine (Charge 3);

§your mobile phone;

§a bundle of cash of $820;

§a facemask;

§a weight scale;

§a bundle of small plastic deal bags;

§a magnetic box located underneath the table which contained tablets (summary charge: possess Schedule 4 poison);

4A false control box was located on the wall inside the plantroom which contained:

§$38,000, (summary charge: proceeds of crime);

§one brown paper bag which contained one plastic press-sealed bag of cocaine (Charge 1);

§one brown paper bag which contained several plastic press-sealed bags of methylamphetamine (Charge 2).

5Other items were also located in the room, including:

·     another facemask;

·     one cigarette butt on the floor; and

·     one glove on a shelf.

6One police witness gave evidence that a key to the padlock was subsequently located on a keyring, on a bed in a bedroom in the rear upstairs area.  The prosecution alleged that it was your bedroom.

7Police also located:

·     one plastic bag that contained 0.4 grams of methylamphetamine inside a drawer of a bedside table in the same bedroom upstairs – (Charge 4)

·     one plastic bag that contained 0.7 grams of methylamphetamine in a lockbox found on the couch in a living area downstairs (Charge 4).

8It was the possession of the drugs that was in dispute in the trial, not the analysis of the drug exhibits that were seized.  The content and quantity of the substances and their approximate purity were part of the uncontested agreed facts that went before the jury.

9DNA analysis was conducted.  You were found to be a DNA contributor with the likelihood ratio of 100 billion, on the following items:

·     one press-sealed bag containing cocaine (Charge 1);

·     one press-sealed bag containing methylamphetamine (Charge 2);

·     one facemask located on the table;

·     another facemask located in the same room; and

·     the glove located on the shelf.

10You were also found to be the single source DNA profile with a likelihood ratio of 100 billion, on the cigarette butt.

11There was no dispute that your DNA was located on all these items.  DNA expert witnesses were called by both the prosecution and defence.  However, it was not completely certain that your DNA was directly transferred onto the surface of the plastic sealed bags relating to Charges 1 and 2.  The chance of secondary transference onto the relevant items was not excluded by either witness. The basis of this transference was a significant issue raised in this trial.

12The prosecution case was that the jury should be prepared to draw an inference of guilt through all the circumstantial evidence, including the disputed DNA evidence in combination with other evidence of items located in the plant room, including your cigarette butt DNA, the glove DNA, facemasks DNA, your mobile phone and your wallet.  They also relied on evidence that you had access to the locked padlock through the key that was located on a keyring in the bedroom that they alleged was yours.  The prosecution case was that on the circumstantial evidence your guilt was the only reasonable inference open to the jury.

13Your defence was that the jury should not be satisfied that you were in possession of the relevant drugs.  Given that the experts agreed that secondary transfer of the DNA evidence on the plastic press sealed bags could not be excluded, it was suggested that this evidence had no utility.  Further, the way the police had conducted their search and the continuity of exhibits lead to no confidence that they had adhered to an acceptable practice in conducting this procedure. Your case was that there were so many shortcomings in the way the police had conducted their search warrant investigation, that the jury could not draw the inference the prosecution relied on. That is, they must have had a reasonable doubt about your guilt on all charges.

14The jury by their verdict rejected your defence and you were found guilty of all the charges.

15You were interviewed by police after you were arrested at your address.  You answered 'no comment' to questions put to you in your record of interview.  You have denied your offending by pleading not guilty since the matters were first raised and continue to do so.  You were initially charged and remanded into custody for 20 days before you were released on bail.  A contested committal was conducted on 2 August 2022.  You were committed to stand trial and entered your pleas of not guilty.

16On 27 February 2024 pre-trial argument proceeded. Your case commenced on 4 March and the jury verdict was entered on 8 March 2024. You have run a trial and are not to be penalised for that.  In those circumstances, however, there is no acceptance of responsibility for your misconduct and I am unable to conclude that you have shown any remorse for your offending.

17Your case has been hanging over your head for almost two and a half years.  While it may have been dealt with summarily, that did not occur and was not sought in this case.  The delay is primarily as a result of your intention to run a jury trial in this matter.  A character reference that I will refer to shortly describes that you have undergone stress as a consequence of the current legal case. I accept that this period has been a source of anxiety for you.

18While two other people were initially charged with similar offences, both cases were discontinued. You are the only person to be convicted of these offences and there is no parity issue to consider. The two summary offences have not formed part of these proceedings and are yet to be dealt with.

19You have admitted your criminal history. In 1989 you were found guilty of cultivation and possession of cannabis and placed on a good behaviour bond for a period of 12 months.  In 1994 you were convicted of cultivation, possession and use of cannabis and received an aggregate fine with conviction of $1,000.  In 1995 you were convicted of importing cannabis resin into Australia and were sentenced in the County Court to a period of two and a half years’ imprisonment, to be released after 15 months on a recognisance release order.  In 1999 you were convicted of possession of drugs of dependence and received a fine with conviction.  In 2001 you pleaded guilty before Judge Stott in the County Court to five offences, including trafficking cocaine, trafficking amphetamine and possession of ecstasy and cannabis.  You received a total effective sentence of four years’ imprisonment with a non-parole period of two years.

20In 2005 you pleaded guilty in the County Court to a total of 10 charges, including trafficking a large commercial quantity of drugs of dependence, trafficking a commercial quantity of drugs of dependence, trafficking drugs of dependence and possession of drugs of dependence.  On 4 December 2007, on appeal, you received a total effective sentence of 17 years’ imprisonment with a non-parole period of 13 years.  You were released in June 2018 and remained on parole until April 2021. I have been provided with and read the sentencing remarks of Judge Stott in 2001 and the Court of Appeal in 2007.

21In the Court of Appeal, Buchanan JA observed that you 'made a career dealing in drugs of dependence'.[1] Your offending demonstrates that over more than 30 years you have shown little regard for the law, despite serving terms of imprisonment. Clearly, your moral culpability for this offending is high.

[1]R v Ahmed [2007] 17 VR 454 (Paragraph 22)

22The current offending occurred six months after you completed your parole. You were released on bail on 8 November 2021 with conditions including weekly reporting, a residential condition and participation in the Court Integrated Services Program (CISP).  You have complied with your bail and have no other matters outstanding.

23The charge of trafficking cocaine relates to 278.6 grams of cocaine at 13 per cent purity.  This is approximately 92 times the amount prescribed as a traffickable quantity. It also amounts to approximately 14 per cent of a pure commercial quantity or 55 per cent of a mixed commercial quantity.[2]

[2]        Drugs Poisons and Controlled Substances Act 1981 (Vic), Schedule 20: trafficable quantity 3g, commercial quantity 250 g pure and 500g mixed

24The charge of trafficking methylamphetamine relates to a total of 46 grams and the purity ranged between 76 to 86 per cent.  This is approximately 15 times the amount prescribed as a trafficable quantity. It also amounts to approximately 74 per cent of a pure commercial quantity or 18 per cent of a mixed commercial quantity.[3]

[3]        Drugs Poisons and Controlled Substances Act 1981 (Vic), Schedule 20: 3g trafficable quantity3g , commercial quantity 50g pure and 250g mixed).

25The objective gravity of your offending concerns the possession of the relevant drugs for sale on a single date. I take this into account when considering the quantity and purity of the drugs. Given the quantity, I consider that

both trafficking charges are inherently serious. The harmful effects that flow from the distribution of drugs of dependence in our community are well-known. Clearly, this was not a low level of drug trafficking. Your overall offending must have been motivated by a financial benefit. I consider that your trafficking amounts to

mid-level offending.

26I turn now to your personal circumstances. You were born in March 1966 in Tripoli, Lebanon, and have just turned 58 years of age.  You arrived in Australia when you were six years old with your parents, three brothers and one sister. 

27Your parents separated in 1973 and a protracted acrimonious Family Court proceeding ensued. Your upbringing was very difficult and tumultuous due to the dispute between your parents, as you and your siblings were stuck in the middle of it.  You attended approximately 12 different schools and after completing Year 12, commenced a tertiary course which was not completed.  You have worked in a variety of jobs for different periods of time. After you were released on parole in June 2018 you commenced work for your brother who operates a successful commercial and residential construction and property business.  You worked as a site supervisor until June 2021.  Your brother also assisted you to establish a company formed for the purpose of property development and investment.  He lent you money to enable the purchase of the address at 8 Simpson Street and another property.

28You have a history of drug use. Your background that led to your involvement in the drug trade is explained in the earlier sentences imposed on you.  In the Court of Appeal, Buchanan JA described that you 'grew up in a culture promoted by [your] father that accustomed [you] to the use of and trafficking in drugs as an acceptable and normal way of life'.  You learnt from your father that you 'could obtain drugs when [you] needed them and could make money by trafficking in them.'[4]  It is in that context that you have incurred your criminal history. Both your brother and father have also served custodial sentences for drug offences.

[4]        R v Ahmed [2007] VSCA 270, [23].

29There is no suggestion that these circumstances amount to Bugmy[5] considerations, but nevertheless they are a significant feature of your background.  It is submitted that it can be difficult to completely change your mindset, given your upbringing.

[5]        Bugmy v The Queen [2013] HCA 37.

30You have three previous marriages, all of which have ended.  You have two children from your first marriage. Your relationship with them has been difficult as you have spent a significant period of time in custody and so have been unable to support them. 

31After your most recent release on parole, your father’s cognitive health began to deteriorate, and he was diagnosed with dementia.  You provided care to him for a period of 18 months until he died in an unrelated accident on 2 June 2022.

32You were subject to the bail condition of CISP for around nine months. A final report, dated 1 August 2022, outlined that despite remaining abstinent from drug use while on parole, you recommenced using methylamphetamine, cocaine and cannabis in July 2021.  You described yourself as a 'functional user' who 'hit it harder' on the weekends.  Your engagement with CISP was positive, participating in case management and community treatment.  You admitted returning to illicit substance use on one occasion and then participated in a relapse prevention program.  You experienced significant grief towards the end of CISP when your father died in a traumatic accident.  You accessed professional and familial supports at that time and your mental health remained stable.  Overall, your consistent response to formalised treatment was commended.  You gained a level of insight into the problematic nature of your previous substance use. 

33Some of your family members and friends were present throughout your trial and at your plea hearing. You continue to have their support. You are most fortunate in that regard.

34Until recently you were in an intermittent relationship with Ms Rebecca Carter. She and her father have written character references that have been tendered on your behalf. They are aware of your criminal history.  She describes you in an extremely positive way, as a trustworthy, thoughtful and sensitive person who will do anything to help others. You have provided her with both mental and physical support. She notes that since your last release from custody you have made some responsible life choices. You have improved your daily life skills even though you have been worried by the criminal allegations. Her father also described you as caring and supportive to your friends and family. They have not wavered in their support of you and will continue to do so in the future.

35Your counsel submitted that your prospects have improved, as over a six-year period you have only been charged with the current offending that occurred on one day.  I note, however, that you were subject to parole during that time for a lengthy period and you have also been subject to bail for more than two years.  There is no specific evidence of your rehabilitation, particularly once the CISP program ceased, although it is of relevance that you have not reoffended since your release on bail.

36The parties have disputed the applicable penalty for Charges 3 and 4, being the possession of cocaine and methylamphetamine.  Where the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in that drug of dependence, the penalty of 30 penalty units and/or one year of imprisonment applies. In any other case the penalty of 400 penalty units and/or five years’ imprisonment applies.[6]

[6]        Drugs, Poisons and Controlled Substances Act 1981 (Vic) s73(1)(b) – (c).

37The prosecution submits that the higher maximum is applicable and that you have not discharged this onus. Your counsel submits to the contrary. Given the location and the small quantity of the relevant drugs, the fact that they were kept separately from the drugs possessed for sale, drug paraphernalia including ice pipes that were located nearby and your disclosure to CISP that you had relapsed into drug use shortly prior to your arrest, I accept on balance that the possession of drugs in Charges 3 and 4 were for your own use. The one year maximum for these offences is applicable here.

38While it has been conceded that a term of imprisonment will be imposed in your case, your counsel has submitted that a composite sentence involving a term of imprisonment plus a stern community correction order is appropriate.  The maximum term of imprisonment available for a combination disposition is 12 months.  The prosecution submits that a significant term of imprisonment with a non-parole period is appropriate and that a combination disposition would be manifestly inadequate.

39I am unable to accept your counsel’s submission as to sentence.  Even if a community correction order was imposed in combination with the maximum term of imprisonment of 12 months, given the objective gravity of your conduct in the context of your criminal history, as well as your limited mitigating matters, I consider that this submission is unrealistic.  I am obliged to impose a sentence that is proportionate to your criminal conduct and consider that a head sentence of more than 12 months is required.

40In light of your history there is no suggestion that your current offending was an uncharacteristic aberration. While you are not to be punished again for your past offending, your criminal history is an indicator of your moral culpability, your prospects of rehabilitation, the need for community protection and the increased importance of specific deterrence.  I am satisfied that the principles of general deterrence, denunciation and just punishment are clearly of relevance in the sentencing mix.

41Drug trafficking is pernicious[7].The community expects that those who elect to engage in drug trafficking must be punished and denounced for their offending. 

[7]        Zarghami v The Queen [2020] VSCA 74.

42Your prospects of rehabilitation are, in effect, in your hands.  You have not abandoned your criminal lifestyle as over the past 30 years you have demonstrated that you are not prepared to comply with the law.  Notwithstanding that your prospects may have recently improved, and that the current offending is not as serious as the case that was dealt with by the Court of Appeal, I find that your prospects remain guarded given your history overall.

43I take into account the maximum penalty for these offences and current sentencing practices. I have considered the cases to which I was referred in the course of the plea. As the parties agreed, each case turns on its own facts. The principle of totality is relevant and I have taken care not to doubly punish you for these offences. I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.

44Balancing these factors as best I can, I sentence you as follows:

CHARGE	sentence	cumulation
1      Traffick cocaine	4 years imprisonment	BASE
2      Traffick methylamphetamine.	4 years imprisonment	6 months
3      Possess cocaine	3 months imprisonment	concurrent
4      Possess methylamphetamine	3 months imprisonment	concurrent

45That is a total effective sentence of four years and six months' imprisonment.  I enter a non-parole period of three years.

46I enter in the records of the court that you have served 39 days by way of pre-sentence detention.

47I make the orders for disposal and forfeiture confirming that any reference to the summary offence material has been removed. I will sign those orders.  There is no 6AAA.

48Can I let you know that a draft of the sentence is available for both of you if you'd like it soon. Otherwise, the sentence will be available within the next few days.

49I will just check with Corrections.  Will Mr Ahmed's counsel have a chance to speak with him downstairs?

50UNIDENTIFIED VOICE:  Yes, Your Honour. 

51HER HONOUR:  All right, thank you.  You can remove him, thank you.  I will adjourn the court.

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