Director of Public Prosecutions v Al-Dimachki
[2019] VCC 1708
•17 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-18-00622
CR-18-00623
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAJED AL-DIMACHKI ASHLEY ATKINSON |
---
| JUDGE: | HER HONOUR JUDGE BRIMER |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 17 October 2019 |
| CASE MAY BE CITED AS: | DPP v Al-Dimachki & Anor |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1708 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: sentence – trafficking in a commercial quantity of a drug of dependence and related charges – offending occurred in the context of drug addiction
Legislation Cited: Sentencing Act 1991
Cases Cited: Verdins; Buckley; Vo [2007] 16 VR 269
Sentence:AL-DIMACHKI: Four years and eight months’ imprisonment, non-parole period of two years and ten months – ATKINSON: Five years and six months’ imprisonment, non-parole period of three years and two months
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Triandos (plea & sentence) | Office of Public Prosecutions Victoria |
| For Accused Al-Dimachki | Dr M. FitzGerald (plea & sentence) | Doogue & George |
| For Accused Atkinson | Mr D. Cronin (plea) | Emma Turnbull Lawyers |
| Mr A. Lewin (sentence) |
HER HONOUR:
1Mr Al-Dimachki and Ms Atkinson, the circumstances of your offending are set out in detail in the summary of prosecution opening for plea dated 21 June 2019, which was tendered, and to which I have had regard, (noting the deletions by agreement at paragraphs 31, 32 and 33).
2I have also had regard to the submissions made on your behalf, Mr Al-Dimachki, by Dr FitzGerald, and on your behalf, Ms Atkinson, by Mr Cronin, and the material tendered on your pleas.
3Having regard to the detailed summary of the prosecution opening remaining on the court file, I will summarise the circumstances of your offending briefly.
4On Wednesday 26 July 2017, you, Ms Atkinson, were seen driving on Mount Alexander Road with you, Mr Al-Dimachki , in the passenger seat.
Police searched both of you and a number of items, including a driver's license in the name of Vicky Giannopoulos, a Kennards Self Storage receipt, cash, and a small amount of methylamphetamine were found either in the car or in your possession, Mr Al-Dimachki .
5Enquiries in relation to your license, Ms Atkinson, revealed that you had been disqualified from driving for two years from 4 August 2015.
6Later that day, police searched the home in Niddrie where you were both living. There, police found drugs: 1,4-butanediol, testosterone, oxycodone, MDMA and other items, including two other drivers’ licenses and scales.
7Enquiries were made at Kennards Self Storage resulting in the execution of a search warrant on storage unit 1058. On 27 July 2017, this unit was purchased by you, Ms Atkinson, in the name of 'Vicky Giannopoulos.' Also searched was Unit A31, which was purchased by you Mr Al-Dimachki, in the name of 'John Saluni.'
8When police opened Unit 1058, they found drums and other containers of
1,4-butanediol and a number of other items, including scales and a Lockwood safe that was bolted to the floor. Further enquiries revealed that the two of you bought the safe from Bunnings on 14 July 2017 on your credit card,
Ms Atkinson.
9When police opened unit A31, they seized a number of items including a Hotco wax immersion heater, which further enquiries revealed you, Mr Al-Dimachki , had bought using another person's credit card on 26 June 2017. Also found was an Ozito transfer pump bought by you, Ms Atkinson, on 21 July 2017.
10Also found in the storage units were various items including credit cards, identity documents, and other goods, including bags, watches and cameras.
11When police opened the Lockwood safe, they found items including $66,115 cash and ziplock bags containing methylamphetamine, MDMA tablets, and a small amount of cocaine.
12Further enquiries revealed phone numbers were registered to people who either had no knowledge accounts were set up in their names, or had not given permission.
13Examination of CCTV footage from Kennards showed each of you at times, together with your co-accused, Mr Marinau, attended the storage facility loading and unloading items, including drums of 1,4-butanediol.
14When interviewed by police following your arrest on 26 July 2017, each of you made 'No comment' interviews.
15Arising out of those circumstances, you, Mr Al-Dimachki , pleaded guilty to the following charges.
16Charge 1, obtaining property by deception; namely, the Hotco heater bought using a credit card you were not authorised to use.
17Charge 2, handling stolen goods, being Teina Howden's driver's license, the license found when you were searched at the car on 26 July 2017.
18Charge 3, possession of methylamphetamine, relating to your possession of the ziplock bag containing 3.7 grams of methylamphetamine when you were searched at the car on 26 July 2017.
19Charge 5, possession of 8.4 grams of testosterone, 100 milligrams oxycodone, 27.2 grams of methylamphetamine, and 7.6 grams of MDMA relating to the drugs found at the house on 26 July 2017.
20Charge 7, trafficking in a commercial quantity of 1,4-butanediol found at the house, in storage unit 1058, and storage unit A31, the total weight being 98.2284 kilograms.
21Charge 12, negligently dealing with proceeds of crime, being the goods including bags and cameras listed in schedule 3 to the indictment, ('the goods’).
22Related summary offence 13, dealing with property suspected of being the proceeds of crime, including $2,000 cash and another person's driver's license.
23You, Ms Atkinson, have pleaded guilty to the following charges. Charge 4, possession of 8.4 grams of testosterone found at the house, 100 milligrams of oxycodone found at the house, and 1 gram of cocaine which was found in the Lockwood safe in storage unit 1058.
24Charge 6, trafficking in a commercial quantity of 1,4-butanediol found at the house and in storage units 1058 and A31, the total weight being 98.2284 kilograms, and a total of 380.8 grams of methamphetamine, 327 grams of which was pure methylamphetamine, found at the house and in storage unit 1058.
25Charge 8, trafficking in 433.4 grams of MDMA, found at the house and in storage unit 1058.
26Charge 9, knowingly dealing with the proceeds of crime, being $66,115 found in the Lockwood safe in the Kennards storage facility.
27Charge 10, handling stolen goods, being the driver's license of Vicky Giannopoulos and the items listed in schedule1 of the indictment, being stolen identity documents.
28Charge 11, negligently dealing with proceeds of crime, being the items listed in schedule 2 and schedule 3 of the indictment, including identity documents and the goods.
29Related summary offence 12, dealing with property suspected of being the proceeds of crime, including another person's driver's license and other items.
30Related summary offence 21, being driving whilst disqualified.
31The charge of trafficking in a commercial quantity of a drug of dependence is a category 2 offence under the Sentencing Act 1991. Pursuant to s.5(2)(H) of the Act, the court must impose a custodial order for this offence unless the circumstances set out in paragraphs (a) to (e) of that sub-section exist.
Plea of Guilty
32You were both committed for trial on 23 March 2018, following a contested committal. The trial was listed on 18 February 2019. The matter resolved before the trial, and the plea indictment was filed on 26 February 2019.
Ms Atkinson, you were arraigned and pleaded guilty on 25 February 2019.
Mr Al-Dimachki, you were arraigned and pleaded guilty on 27 February 2019.
33Mr Al-Dimachki, Dr FitzGerald submitted that although no formal plea offer was made, negotiations leading up to your arraignment resulted in the withdrawal of very serious charges. You pleaded guilty to the indictment as now framed at the earliest opportunity. The utilitarian value of the plea is not diminished.
It had been set down for a 15-day trial. Given the material before the court,
the plea also ought be considered an expression of remorse.
34Ms Atkinson, your counsel submitted that plea negotiations started in September 2018. Some firearms offences were a stumbling block and prevented a counter-offer from the Crown being accepted in October 2018. When the matter was approaching trial, there were further discussions.
The prosecution enquired as to whether the plea offer made by the defence was still open. That plea offer was accepted by the Crown, and is largely consistent with the indictment and summary offences now pleaded to.
35I have considered the submissions and circumstances of your pleas. I accept and take into account that you both pleaded guilty, which is indicative of remorse and acceptance of responsibility. I accept that your plea of guilty has facilitated the course of justice by preventing community expense and the need for witnesses to come and give evidence in a trial at your matter, which was set down for 15 days of hearing.
Pre-sentence detention
36Mr Al-Dimachki, the prosecution contends that you have 87 days of pre-sentence detention to be declared pursuant to s.18 of the Sentencing Act 1991. You have spent 813 days in custody since 26 July 2017. Until 22 July 2019, you were serving terms of imprisonment imposed in respect of other offences.
37Dr FitzGerald submitted that the time you have been in custody since 26 July 2017 is available to be declared as time served under s.18(1) of the Sentencing Act. He relied on Younger [2018] VSCA 199 at [68]-[70]. Alternatively, if I do not consider it appropriate to declare some or all of the time served as pre-sentence detention, I ought moderate the head sentence to reflect time you have spent in custody since 26 July 2017, in accordance with the principle of totality.
38Written submissions, dated 14 October 2019, were filed on your behalf in response to Crown submissions dated 7 October 2019. The Crown submitted that the serious drug offender provisions in the Sentencing Act apply to you,
Mr Al-Dimachki. Dr FitzGerald accepted on your behalf that the serious offender provisions apply. He accepted that the sentencing court should approach the issue of totality in a manner which does not have the effect of undermining the legislative policy in s.6(E).
39Section 6(E) provides that every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
40He submitted further, that community protection is of reduced importance as a sentencing purpose, giving the matters in mitigation, to which I will come.
41Mr Triandos submitted that Younger does not apply in this case. It was a resentencing by the Court of Appeal. It does not overturn R v Broad [1999] VSCA 149 at [11]. The passage in Younger does not support the contention that periods of detention during which the person being sentenced was on remand for the offences in question, while serving a sentence for other offences, can be declared as time served under s.18(1) of the Sentencing Act.
42Mr Triandos initially conceded that the time you have spent in custody since July 2017 can be taken into account in a global way, applying the principle of totality. In the written submissions dated 7 October 2019, Mr Triandos submitted that s.6E of the Sentencing Act has no practical effect on the sentence to be imposed on you because any sentences in respect of other offences have been served. Nevertheless, this provision is relevant to the consideration of totality. Mr Triandos did not take that submission any further.
43The prosecution does not seek a disproportionate sentence on community protection grounds.
44I have had regard to Younger, Broad and DPP v Ty [2009] VSCA 226. I am not persuaded that Younger supports the approach of declaring some or all of the time you have spent on remand for these offences while serving sentences in respect of other matters as time served under s.18(1) of the Sentencing Act in respect of these offences. I have had regard to s.6E of the Act, to the submissions made in this regard, and to the principle of totality. I will return to this topic later.
45Ms Atkinson, you have 753 days to be declared as pre-sentence detention under s.18(1) of the Sentencing Act 1991.
Prior Convictions
46Mr Al-Dimachki, you have a number of relevant prior convictions, the earliest being 28 September 2012. These include dishonesty offences and drug offences, including trafficking in methylamphetamine and driving offences.
The offence of trafficking in a commercial quantity of 1,4-butanediol on
14 October 2014, for which you were sentenced for a term of imprisonment of 20 months by Judge Meredith on 23 April 2018, is a subsequent matter, but it is also the basis of the application of the serious drug offender provisions.
47Ms Atkinson, you have a number of relevant prior convictions, the earliest being June 2012. These include dishonesty offences, drug offences, criminal damage, and driving offences.
Personal Circumstances
48Mr Al-Dimachki, your personal circumstances are set out in detail in the psychological reports of Ms Carla Lechner, psychologist, dated 21 November 2017 and 23 May 2019. I have had regard to the detailed background and history set out in her reports. Your brother, Ray Al-Dimachki, gave evidence on your plea.
49In summary, you were born in Lebanon to a Druze family, along with your two younger sisters. Your brothers, Ray and Carl, were born in Australia.
You returned as a child to Lebanon with the family on two occasions while your father served in the army during the civil war. Living conditions were very difficult. Some experiences were traumatic, such as seeing dead bodies, skulls and open coffins when you went to get food.
50As an adult, you completed Year 12 and were a painter for about seven to eight years, and a gifted football player. You were offered a scholarship to a college in the USA. You were in America for about six weeks before you returned home, when your brother was diagnosed with tongue cancer. You organised a charity football game during which you snapped your finger. You could not use your hands, including playing sport, for three months.
51You did not return to the USA, and lost your scholarship. After you injured your hand, Ray Al-Dimachki gave evidence that you were dwelling on things in your past but did not want to say that you could not handle what was going on.
52It was during this time that you turned to drugs. Ray tried to help you, but you were a completely different person on drugs. You were using 2 grams of ice per day. It was like talking to a wall, he said. Ray was concerned you would harm yourself.
53You have a somewhat complex history of offending which is set out in the sentence of Judge Meredith dated 23 April 2018. In summary, before you committed these offences, you had been granted bail in December 2016 on condition that you live at a private residential rehabilitation facility. You were unable to afford the cost of admission.
54Given a previous arduous experience in prison, when you were assaulted, struck in the head and placed in protection, you chose to go on the run.
You spent significant periods of time at Ms Atkinson's home.
55By June 2017, you re-engaged with drug treatment services and had a number of appointments with a support worker at ReGen. You attended an information session for inpatient treatment at Odyssey House. You contacted your brother Ray in 2017, saying you wanted to change. But within a month, you were taken into custody in relation to these offences.
56You have been in custody since your arrest in July 2017. You are employed on a maintenance crew at Hopkins Correctional Centre. You have suffered from alopecia during your incarceration, and in late 2018 you were hospitalised with complications of cellulitis.
57Ms Atkinson, your family history is set out in detail in the report of Ms Gina Cidoni, psychologist, dated 21 May 2019. I have had regard to the detailed history and background set out in her report. In summary, you were born in Essendon and your parents separated when you were three years old.
58You attended a number of schools up to Year 10 when you finished school. You experienced bullying at school. You later enrolled in a beauty therapy course at TAFE for two months, though you abandoned this.
59Your father was an alcoholic with borderline schizophrenia. Your mother suffered mental health instability with bipolar disorder. She also abused substances. You had an unstable and erratic home life, including a brief period of homelessness after first leaving home at age 16. You have an older sister, with whom you have not been in contact for some time. You reported that your older cousin touched you inappropriately when you were aged five or six.
You were raped at a party when you were 14 years old.
60At age 19, you began a relationship which was extremely violent and saw the onset of illicit drug use. You sustained a spinal injury from physical abuse suffered during this period. Your partner at the time was in prison for this assault on you. I have had regard to the statement you provided to the police and which was tendered on your plea as Exhibit 2.
61Your relationship ended when you were 21. Your ex-partner suffered a stroke, following a heroin overdose in 2014. He committed suicide in 2015.
62You began a relationship with a man called Abdullah in 2011. He, too was violent, a drug dealer, and abused illicit substances. You reported that he fractured your finger when you were 21, used cigarette butts to burn your face, and knocked you unconscious in public twice. An intervention order was placed against him, and he was remanded once for violence against you.
63Your next relationship was with Mr Al-Dimachki. You reported that he was emotionally, not physically, abusive. Through counselling with CASA, you ended the relationship.
64Ms Cidoni saw you for four counselling sessions from February 2012 to work through the traumas that you had suffered, and their consequences. Counselling was largely ineffective, as you were using drugs and your mental health symptoms were acute in this period. You attempted suicide twice, and were hospitalised at Royal Melbourne Hospital for several days on each occasion.
65You have a history of substance abuse, including methylamphetamine, cannabis, heroin, GHB, benzodiazepines, alcohol abuse and misuse of antipsychotics. There were periods where you stopped; however, you relapsed. With your co-accused, you were using a gram of ice and GHB each day.
Gravity of the Offences
66The offence of trafficking in a commercial quantity of a drug of dependence is a serious offence which is reflected in the maximum penalty of 25 years' imprisonment.
67The commercial quantity of 1,4-buteanediol is in the order of 50 times the threshold. Ms Atkinson, the commercial quantity of pure methylamphetamine trafficked by you is more than three times the threshold. The quantity of substances, including MDMA, trafficked by you is many times the trafficable quantity.
68The use of false identities in the hire of the locker storage units and the purchase of equipment show sophistication in the planning and execution of the enterprise. It was trafficking on a significant scale, albeit I have kept firmly in mind that you have both been charged with trafficking over two days.
69The offending calls for considerable weight to be given to the principles of just punishment and general deterrence. Mr Al-Dimachki, your counsel accepted from the outside that the offending the subject of Charge 7 is very serious.
He submitted, however, that I ought not permit the quantity to swamp other considerations.
70There is no large commercial quantity specified for 1,4-butanediol and massive quantities - for example, tonnes - are seen in respect of some trafficking charges. Your counsel conceded that the trafficking enterprise was attended by indicia of planning consistent with its scale.
71Dr FitzGerald submitted that 1,4-butanediol has a significantly lower value than many other illicit drugs, and therefore, the additional aggravation that would arise from participation in trafficking of a more profitable substance is not present. Dr FitzGerald relied on data from the Illicit Drug Data Report, 2016 to 2017, p.156, and on DPP v Maxwell [2013] VSCA 50; in particular, on the proposition that “the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. Other things being equal, a large financial reward to the offender will be more serious than one where the expected reward is small or non-existent”.
72 Whilst I accept that 1,4-butanediol may not be as profitable as some other drugs of dependence, the quantity is a significant factor to which I have had regard in considering this to be a trafficking enterprise attended by indicia of considerable planning and scale.
73Mr Al-Dimachki, in relation to Charge 3, the Crown submitted that your possession of 3.7 grams of methylamphetamine was not for personal use, having regard to the quantity being prima facie evidence of trafficking, that it was found in a ziplock bag similar to those found at the house, and was of
86 per cent purity, similar to the purity of the methylamphetamine found at the house.
74Dr FitzGerald submitted that I should find that the methylamphetamine found on your person was for personal use, and as such, the reduced maximum penalty applies in respect of Charge 3. This is in the context of Dr Fitzgerald's submission, to which I will come, that you were an ‘addict trafficker’.
75Mr Al-Dimachki, you have not been charged with trafficking in methylamphetamine. The bag of methylamphetamine was found on your person. On that basis, I am satisfied on the balance of probabilities that the offence was not committed by you for any purpose relating to trafficking in that drug of dependence. As such, I will apply the lower maximum penalty in s.73(1)(b) of the Act.
76In relation to Charge 5, your counsel did not make the submission that I ought find that your possession of testosterone, oxycodone, methylamphetamine and MDMA was for personal use. I am not satisfied, on the balance of probabilities, that the offence was not committed by you for any purpose relating to trafficking. The greater maximum penalty in s.73(1)(c) will apply, consistent with the prosecution position.
77Ms Atkinson, in relation to Charge 4, possession of testosterone, oxycodone and cocaine, the prosecution accepts that your possession of these drugs was for personal use. I will sentence you on that basis.
78Dr FitzGerald submitted that although the offences of obtaining the Hotco heater by deception (Charge 1) and handling Teina Howden's stolen driver's license, (Charge 2), are relatively less serious examples of the relevant dishonesty offences, he acknowledged that they were committed for the purpose of facilitating more serious criminal activity. I consider that the dishonesty offences in relation to the use of stolen identity documents ought be considered as having facilitated the trafficking offences.
79Charge 12 is accepted to be a serious example of negligently dealing in proceeds of crime, being the goods, albeit with a lower value than that regularly seen in these cases.
80Ms Atkinson, in relation to the trafficking charges you face, your counsel conceded that the offending is serious and a term of imprisonment is warranted. It is not low-level trafficking.
Circumstances of the Offending
81In relation to your roles in the trafficking enterprise, Mr Triandos admitted that I can look at the charges to which of you have pleaded guilty as one of the factors to be taken into account in sentencing you.
82For example, Ms Atkinson, you have pleaded guilty to trafficking in a commercial quantity of two substances. Your plea of guilty to knowingly dealing with proceeds of crime, being the $66,115 found in the Lockwood safe, also reflects your roles.
83Mr Al-Dimachki, your counsel submitted that your role in the offending was subordinate to that of yours, Ms Atkinson, based on the structure of the indictment. The charges remove you, it was submitted, from the broader aspects of the business. There is no evidence that you engaged in sales activity in relation to the 1,4-butanediol. There ought be an appropriate disparity in the sentences to reflect this.
84Dr FitzGerald submitted that paragraphs 31 to 33 of the prosecution summary opening could be relied upon to distinguish your role, Mr Al-Dimachki, from that of yours, Ms Atkinson. Those paragraphs were deleted by the prosecutor, and you, Ms Atkinson, do not face charges in respect of those matters. Mr Triandos submitted that once deleted, the paragraphs cannot be used in any way.
I agree, and have not taken those matters into account in respect of either of you.
85Mr Cronin submitted on your behalf, Ms Atkinson, that no distinction between your roles ought be made. The charges you face are not instructive of your relative roles. I accept that in light of the charges to which you, Ms Atkinson, have pleaded guilty, your moral culpability is somewhat greater than that of
Mr Al-Dimachki. It is, however, one only, of a number of relevant sentencing considerations that I must take into account.
Victim Impact Statements
86I have had regard to the victim impact statements of Ms Giannopoulos and
Mr Ripper in which they have articulated the significant impact of the use of their identities on them. I have been careful to ensure that I do not take into account the impact of matters in respect of which you have not been charged.
Relevant Sentencing Considerations
87Specific deterrence is an important sentencing consideration in respect of both of you. Mr Al-Dimachki, your prior history shows relevant, persistent and escalating offending, albeit over a period only since 2012.
88At the time you were arrested in relation to these offences, you were at large, having failed to answer bail in respect of trafficking in a commercial quantity of the same drug, 1,4-butanediol. Dr FitzGerald accepted that this is an aggravating feature of your offending.
89Despite this, Dr FitzGerald submitted that you made attempts to rehabilitate yourself by re-engaging with a support worker at ReGen immediately before your arrest. Tendered on your plea was a letter confirming that you had been referred to Odyssey House and attended an information session on 18 July 2017, just before your arrest on these matters. Your efforts at rehabilitation in the time you have spent in custody reduces the weight needed to be given to specific deterrence.
90Dr FitzGerald submitted that you, Mr Al-Dimachki, have good prospects of rehabilitation. He pointed to the late onset of offending which coincided with your drug use. This was connected with your loss of your sporting career and stresses within your close-knit family. Before this event, you had experienced success and lived a pro-social life, including obtaining a scholarship at a university in the USA.
91The circumstances of your arrest in October 2014, when you attempted suicide, illustrate clearly that you were an ‘addict trafficker’. You remained addicted to methylamphetamine to lift your mood, and used GHB and 1,4-butanediol to moderate the effects of ice, right up to this offending. Dr Fitzgerald submitted that I should find that your involvement in this enterprise arose from the need to support your dependency.
92Whilst I accept that your offending occurred in the context of your drug addiction, given the features of the trafficking enterprise and related offending, to which I have referred, I am not satisfied on the balance of probabilities that your involvement arose solely from the need to support your dependency.
93Your mental health presentation is set out in the reports of Ms Lechner.
Ms Lechner found you to be quite insightful regarding the negative effects of drugs on your life. She assessed you as presenting with symptoms of stimulant use disorder in earlier remission, with a past history of major depressive disorder. You reported to her that your mood state had improved due to your placement at the Metropolitan Remand Centre. I accept that you experienced onerous conditions as a protection prisoner at Port Phillip Prison.
94Ms Lechner's 2019 report notes that you have remained focused on your rehabilitation. You presented as having a much better understanding of the negative effects of drugs on your life. Your mood was slightly low, relative to your previous assessment, and your scores on standard measures of depression and anxiety were in the moderate and severe ranges.
95Your current diagnosis is stimulant use disorder in remission. Ms Lechner recommends ongoing involvement with treatment services on your release from custody, and considered that you had a positive attitude towards this. Your prognosis is positive, she wrote.
96Dr FitzGerald submitted that you have maintained abstinence from illicit substance use over a considerable period of time. You have strong family support and good prospects of employment on release. A number of your family members were present in court on your plea. Your brother gave evidence that upon release, you will live with him and his family. They are building a guesthouse out the back, and there are prospects for employment in construction, painting and at Ray's gym.
97You have retained ties to community groups and sporting clubs that are willing to support you. Your commitment to rehabilitation is demonstrated by the large number of programs and courses that you have completed. They demonstrate a capacity for reform. I have had regard to the evidence of the programs you have undertaken, and tendered on your plea.
98You have written a letter to the court which I accept is evidence of your remorse and acceptance of responsibility.
99On all of the material before me, I consider your prospects of rehabilitation are reasonable.
100Ms Atkinson, Mr Cronin submitted that an analysis of your criminal history shows that the extent of your prior drug matters are possession of GHB in 2013, for which you were given a bond without conviction, and possession of methylamphetamine, for which you received a community correction order. Prior to these matters, you had not been imprisoned for drug offences, nor had you been convicted of trafficking.
101Mr Cronin submitted that your offending ought be considered in the context of your social disadvantage and traumatic upbringing, as outlined in the reports of Ms Cidoni. In particular, Mr Cronin relied on your borderline personality disorder, the discord you witnessed in your family home at a young age, your problems with bullying at school, and the trauma and assaults you suffered before you turned to drugs and alcohol, which are set out in detail in the materials tendered on your plea.
102Ms Cidoni had the benefit of seeing you on a number of occasions since 2012. She considers that you suffer borderline personality disorder and unstable mood in the form of bipolar disorder. Characteristics include mood fluctuations, naivete, immaturity, impulsivity, grandiosity, poor judgment, flight of ideas, dependency, and an inescapable fear of abandonment. These considerations affect your behaviour, with serious shifts in mood and energy and intense emotions, often resulting in harmful and impulsive behaviours.
103Dr Anthony Cidoni identified that you were insecure about your relationship with and influenced by your co-accused. You figured that if you got involved with what he was doing, he would stay with you and not seek drugs elsewhere.
104Mr Cronin made it clear that you were not saying that you were forced by
Mr Al-Dimachki into this offending behaviour. You accept that you knew what you did was wrong. Rather, you made compromised decisions in the context of your borderline personality disorder and traumatic background.
105Mr Cronin initially made the submission that the principles in Verdins; Buckley; Vo (2007) 16 VR 269 at [32] are enlivened on the basis of Ms Cidoni's report, in particular, her opinion that your offending is linked to your mental health issues and commenced with substance abuse, that your judgment was quite impaired, even after you stopped the drug use in the months before your arrest, and that you are a disadvantaged person by way of your mental illness, which has had a serious impact upon your life and daily functioning.
106After further consideration, Mr Cronin stepped back from the submission that the Verdins principles are enlivened. Rather, he submitted that the material set out in Ms Cidoni's report sets the context to explain how you got to where you are at the moment; how you found yourself in this type of offending.
107Consistent with that submission, Ms Cidoni considered that you are easily influenced, and that you function very poorly in intimate relationships where you tend to choose unhelpful and generally abusive men.
108Mr Cronin submitted that with appropriate counselling, and provided that you avoid drugs, you have good prospects of rehabilitation.
109You are currently on remand at Dame Phyllis Frost Centre, where you work as a billet in the kitchen. You described going into custody as initially confronting. Dr Anthony Cidoni noted that your mental health is stable, and you present as insightful and motivated, despite your personality disorder.
110You have been in a stable relationship whilst in prison. Prison has not been overly difficult or onerous, although the removal of your current partner is likely to be significantly stressful. Further, with ongoing incarceration, you may lose the momentum you had established, particularly after your partner is released.
111You made a complaint against a prison officer, which created some uncertainty for you. On the further plea, Mr Triandos informed the court that your matter was investigated and no charges have been laid.
112Dr Anthony Cidoni considered that you have good prospects of rehabilitation, as long as you remain abstinent and continue to engage in psychological treatment. Positively, you have reconnected with your family and have had regular contact with your father, mother and grandparents since being on remand. Despite having a strained relationship with your family growing up, you have had significant family contact since being remanded and now enjoy strong family support; that this is so supported by the references tendered on your plea.
113You have expressed remorse for your actions. Your mother has written a detailed letter setting out much of the trauma you suffered as a young girl and woman with the stated purpose of giving the court a broader understanding of your tumultuous life.
114Your mother details the turnaround she has seen in you. She has heard things she has never heard from you before such as to demonstrate insight into your offending. Your grandparents have written to say that you have the support of your family to tread a better path, choose good friends and seek employment upon your release, and thereby make a positive and ongoing contribution to society.
115You have undertaken a number of courses and are engaging in psychological trauma counselling in custody with West CASA. This is despite opportunities being less available to you whilst on remand.
116Mr Cronin submitted that this period has been significant for making a number of positive changes, including ending your relationship with your co-accused, engaging in counselling, undertaking work as a billet, and remaining abstinent from illicit substances. I have had regard to the negative drug test screens tendered on your plea.
117When released, you intend to live with your mother who is currently living in Warwick. This will provide a geographic exclusion from your previous social group and the lifestyle you became involved in. Your efforts in custody and your plans to relocate to a rural setting attest to plans to implement a strategy of remaining abstinent upon release.
118I accept that your offending ought be considered in the context of your traumatic background and the matters referred to by Ms Cidoni. I have taken them into account in determining the appropriate sentence. I accept that you have expressed remorse for your offending and have demonstrated a commitment to rehabilitation whilst you have been in custody.
119I accept that you have good prospects of rehabilitation; however, that will depend on your commitment to staying-drug free.
Current Sentencing Practice
120I am obliged to have regard to current sentencing practices in determining the sentence, so I note the guidance of the High Court in DPP v Dalgliesh (a pseudonym) [2017] HCA 41 that current sentencing practices are one of the many factors that must be taken into account in sentencing.
121Dr FitzGerald submitted that the lower profits associated with 1,4-butanediol have resulted in sentencing practices which are lower than the sentencing practices for other, more profitable drugs, such as methylamphetamine and cocaine.
122In relation to the trafficking of 1,4-butanediol, Dr FitzGerald referred me to a number of cases, including DPP v Arici, in which the relevant quantity being trafficked was 74.5 kilograms. The total effective sentence imposed in that case was six years' imprisonment with a non-parole period of four years. I note that on 15 October 2019, the appellant was resentenced on appeal to a term of imprisonment of five years with a non-parole period of three years and three months.
123DPP v Ahmad Merheby [2016] VCC 1691 involved 66.2 kilograms of 1,4-butanediol. An aggregate term of imprisonment of five years and nine months was imposed.
124DPP v Allouche [2018] VCC 1038 involved the trafficking of 42 kilograms of 1,4-butanediol over a four-month period with eight separate transactions. A term of imprisonment of six years and six months with a non-parole period of three years and nine months was imposed. I was also referred to DPP v Richardson [2016] VCC 2014, DPP v Bchinnati [2018] VCC 372 and DPP v Omer [2018] VCC 1401, to which I have also had regard.
125I have had regard to the Sentencing Advisory Council higher court sentencing statistics in relation to each offence as an indication only of the percentage of cases in which a term of imprisonment was imposed, and in respect of the length of the term of imprisonment imposed.
126Every case is different, and the court must have regard to the individual circumstances of each case, and the relevant sentencing principles that apply. This is what I have done.
Submissions
127Mr Al-Dimachki, Dr FitzGerald conceded that a term of imprisonment with a non-parole period is required, and submitted that considerations of totality apply to the sentences to be imposed for each of the charged offences. Each of the offences were committed as part of a course of conduct with Ms Atkinson in the context of a dependency on illicit substances.
128A just and appropriate measure of your overall criminality requires some moderation of the sentences imposed to reflect the time you have spent in custody, although the court must have regard to the legislative policy underlying s.6E of the Sentencing Act.
129Moderation of the non-parole period is called for on the basis of your strong,
as Dr FitzGerald submitted, prospects of rehabilitation, recognising the need for you to address your substance abuse going forward.
130Ms Atkinson, Mr Cronin submitted that when all factors are taken into account, the court ought consider a sentence that allows for a significant component of supervision in the community. Initially, Mr Cronin submitted that I ought obtain a pre-sentence report with a view to imposing a combination sentence.
Mr Cronin's fallback position was that a sentence of imprisonment with a non-parole period would be appropriate.
131On the further hearing of the plea, Mr Cronin properly referred to s.5(2H) of the Sentencing Act and conceded that a term of imprisonment must be imposed. He submitted that I should consider the extended pre-sentence report and structure the sentence in a way that provides you with the opportunity to serve a significant portion of the sentence in the community.
132I have considered the extended pre-sentence report. In summary, the author of the report confirms that you were subject to random and targeted testing at Dame Phyllis Frost Centre, where you produced 26 negative results up to June 2019. You spoke about not wanting to return to drug use, and added that the assistance you have received in Dame Phyllis Frost Centre through your attendance at programs, along with personal motivations, including your plans to have children, gave you confidence in maintaining your drug-free existence.
133In conclusion, the author of the report found that you are suitable for a community-based disposition. I accept and take into account the positive nature of the pre-sentence assessment outcome report in considering the appropriate sentence in your case.
134I have considered all written and oral submissions and material tendered, and have taken into account the matters raised in mitigation on your pleas.
In sentencing both of you, I must have regard to a range of matters, including the seriousness of the offending, your culpability and your personal circumstances.
135I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, so far as is possible, that offenders are rehabilitated into society.
136I have also considered the sentence imposed on your co-offender, Mr Marinau, and the basis on which he was sentenced. Mr Marinau, your co-accused, pleaded guilty to trafficking in a drug of dependence, 1,4-butanediol, in a commercial quantity.
137He was sentenced on 31 August 2018 on the basis that he played a very limited role with very low reward, and had limited criminal history. The prosecution conceded that he was nothing more than a courier and assistant to both of you. He gained a small quantity of drugs and money for his actions.
138He was sentenced to a term of imprisonment of 10 months, together with a community correction order of two years, with a condition that he perform
200 hours of unpaid community work over a two-year period. He was clearly in a different category from both of you, for sentencing purposes.
139Achieving party involves comparing incommensurables. This is not an easy task in this case. I must make a relative comparison of your roles in the offending and take into account your personal circumstances and prior matters. By way of illustration, Ms Atkinson, on the one hand, your moral culpability is somewhat higher than that of Mr Al-Dimachki on the basis of the charges to which you have pleaded guilty.
140On the other hand, your personal history, in particular, the trauma you have suffered, including your past relationships, together with the steps you have taken towards rehabilitation and the support of your partner whilst in custody, moderate the weight to be given to specific deterrence.
141Mr Al-Dimachki, on the one hand, you have the support of your family,
have good prospects of employment, and have taken steps towards rehabilitation in prison. On the other hand, you have a significant history of escalating offending, including offending of the same nature whilst on bail, conceded by your counsel to be an aggravating feature of these offences.
142I have considered and weighed in the balance all of the matters raised on the plea.
143Mr Al-Dimachki, as noted earlier, you are to be sentenced as a serious drug offender on Charge 7. I have had regard to s.6(E) of the Sentencing Act, and also to the principle of totality.
144Pursuant to part 2A of the Sentencing Act, I must regard protection of the community as a principal purpose for which the sentence on this charge is imposed, and unless I otherwise direct, the term of imprisonment which
I impose on this charge must be served cumulatively on any other sentence of imprisonment imposed on you. Further, I must direct that the fact that I am sentencing you on Charge 7 as a serious drug offender be entered in the records of the court, and I so direct.
145I agree with the prosecutor's submission that a sentence beyond that which is proportionate to the gravity of your offending is not required to address community protection. I will order partial cumulation only in regard to the other offences to which you have pleaded guilty in recognition of the fact that it is not necessary to impose a disproportionate sentence, the mitigatory matters in your case, and the proper application of totality notwithstanding the effect of part 2A.
146I have also taken into account that you have served a significant amount of time in custody on remand whilst serving sentences of imprisonment in respect of other matters in fixing your sentence - again, having regard to the application of totality, notwithstanding the effect of part 2A.
147Mr Al-Dimachki, I impose the following sentences.
148Charge 1, obtaining property by deception, namely, the Hotco heater,
I sentence you to a term of imprisonment of one month.
149Charge 2, handling stolen goods, being Teina Howden's driver's license,
I sentence you to a term of imprisonment of two months.
150Charge 3, possession of methylamphetamine, I sentence you to a term of imprisonment of two months.
151Charge 5, possession of testosterone, oxycodone, methylamphetamine and MDMA, I sentence you to a term of imprisonment of 12 months.
152Charge 7, trafficking in a commercial quantity of 1,4-butanediol, I sentence you to a term of imprisonment of four years and two months.
153Charge 12, negligently dealing with proceeds of crime, being the goods listed in schedule 3 to the indictment, I sentence you to a term of imprisonment of 12 months.
154Related summary offence 13, dealing with property suspected of being proceeds of crime, including $2,000 cash and another person's driver's license, I sentence you to a term of imprisonment of two months.
155I direct that the sentence on Charge 7 of four years and two months is the base sentence.
156I further direct that the sentence imposed on Charge 2, two months of the sentence imposed on Charge 5, and two months of the sentence imposed on Charge 12, are to be served cumulatively on Charge 7 and upon each other.
157This means that I sentence you to a total effective sentence of four years and eight months' imprisonment.
158You are to serve a period of two years and 10 months before being eligible for parole.
159I declare that you have 87 days of pre-sentence detention to be reckoned as having been served under s.18(1) of the Sentencing Act 1991.
160Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have imposed a term of imprisonment of six years and six months.
161Ms Atkinson, I impose the following sentences on you.
162Charge 4, possession of testosterone, oxycodone, cocaine, I sentence you to a term of imprisonment of 12 months.
163Charge 6, trafficking in a commercial quantity of 1,4-butanediol and a commercial quantity of methylamphetamine, I sentence you to a term of imprisonment of five years and two months.
164Charge 8, trafficking in 433.4 grams of MDMA, I sentence you to a term of imprisonment of 18 months.
165Charge 9, knowingly dealing with proceeds of crime, being $66,915, I sentence you to a term of imprisonment of eight months.
166Charge 10, handling stolen goods, being the driver's license of Vicky Giannopoulos and the items listed in schedule 1 of the indictment, I sentence you to a term of imprisonment of six months.
167Charge 11, negligently dealing with proceeds of crime, being the items listed in schedule 2 and schedule 3 of the indictment, I sentence you to a term of imprisonment of 14 months.
168Related summary offence 12, dealing with property suspected of being
the proceeds of crime, including another person's driver's license and other items, I sentence you to a term of imprisonment of two months.
169Related summary offence 21, being driving whilst disqualified, I sentence you to a term of imprisonment of two months.
170I direct that the sentence on Charge 6 of five years and two months' imprisonment is the base sentence.
171I further direct that two months of the sentence imposed on Charge 8 and two months of the sentence imposed on Charge 9 are to be served cumulatively on Charge 6 and upon each other.
172This means that I sentence you to a total effective sentence of five years and six months' imprisonment.
173You are to serve a period of three years and two months before being eligible for parole.
174I declare that there are 753 days served by way of pre-sentence detention, pursuant to s.18(1) of the Sentencing Act 1991.
175Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have imposed a term of imprisonment of seven years and four months. You may be seated, Ms Atkinson.
176Mr Triandos, I understand there are some ancillary orders?
177MR TRIANDOS: Yes, there are, Your Honour.
178HER HONOUR: There is a disposal order and three forfeiture orders?
179MR TRIANDOS: That's correct, Your Honour.
180HER HONOUR: Are there any matters to be raised in respect of those orders?
181DR FITZGERALD: No, Your Honour.
182MR LEWIN: No, Your Honour.
183MR TRIANDOS: It was by consent.
184HER HONOUR: Yes, thank you. I will leave the Bench before the next matter.
‑ ‑ ‑
10
0