Director of Public Prosecutions v Alkhafaji

[2022] VCC 1998

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION  CR 21-01572

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALI ALKHAFAJI

JUDGE:	WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February & 2 November 2022
DATE OF SENTENCE:	15 November 2022
CASE MAY BE CITED AS:	DPP v Alkhafaji
MEDIUM NEUTRAL CITATION:	[2022] VCC 1998

REASONS FOR SENTENCE

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Subject:  Criminal Law – sentence   

Catchwords: Pleaded guilty to one charge of trafficking drug of dependence – commercial quantity; one charge of trafficking cocaine; 1 summary charge  dealing with property suspected to be the proceeds of crime – 2 summary charges  of failing to comply with direction to assist –  aged 23  at time of offending - trafficking for profit –  trafficking on a single day  - acting alone – traumatic childhood -  use of drugs and alcohol from young age –  early offending  - Complex Post Traumatic Stress Disorder –anxiety and depression - Polysubstance Abuse Disorder - acceptance of responsibility for offending  - significant periods  in custody in isolation -  6 months 16 days of  Renzella time -  666 days pre sentence detention

Sentence:  Five years imprisonment with a non parole period of  2 years 4 months    

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. D. Caruso 22/02/22, Ms D. Hamnet 02/11/22, 15/11/22	Office of Public Prosecutions
For the Accused	Dr. Gumbleton 22/02/22, 02/11/22, Mr M. Bazzi 15/11/22	Theo Magazis & Associates 01/09/22, City Group Legal 07/09/22

HER HONOUR: 

1Ali Alkhafaji, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence, and one charge of trafficking in a drug of dependence.  You have also pleaded guilty to two summary charges, numbered 5 and 7, dealing in the proceeds of crime and a rolled up charge of failing to comply with a s4655A order relating to the provision of personal identification numbers for the mobile phones found at your home.

2The hearing of this plea commenced on 22 February 2022 and was adjourned for various reasons until May and again until September and then October.  A change of solicitors occurred in September, ultimately to allow time for your new solicitors to provide further documents.  The hearing was adjourned till 2 November.

The offending

3You were arrested on 21 November 2019 outside your home.  You were carrying a satchel bag which police searched and found in it cash of $9,490 and two mobile phones.  Inside your residence, they found three Ziplock bags, one containing 432.7 grams of methamphetamine, another containing 52.6 grams of methamphetamine and a third containing 302 grams of cocaine.  The two bags of methamphetamine amounted to 485.3 grams which exceeds the threshold amount of 250 grams, and so is a commercial quantity.  The threshold for cocaine is 3 grams for trafficking and 500 grams for trafficking in a commercial quantity.  Therefore, you have pleaded guilty to over 100 times the trafficable quantity. 

4Police also located $37,050 in Australian cash, which together with the cash found in your possession earlier, forms the summary charge of possessing the proceeds of crime.  Various items used in trafficking were also found in the residence, including electronic scales and plastic snap lock bags.  When analysed, the methamphetamine was found to have a purity of 67 per cent and 54 per cent, respectfully, with the purity of the cocaine being 63 per cent.  The police explained to you your obligation to reveal you pin in relation to each mobile phone, but you refused to do so.

Time spent in custody 

5You were remanded in custody on 21 November 2019 until 29 September 2020, a total of 314 days.  The calculations of times spent on remand are somewhat complicated, and it is convenient at this point to set them out.

6Bail was granted on 29 September 2020 but was revoked on 10 August 2021 when you were arrested for a matter which is still before the Magistrates Court.  You were then released on 29 November 2021, having spent 111 days on remand.  Those days will not be taken into account in relation to the matters with which I am dealing.

7As of the first plea date, 22 February 2022, you had been in pre-sentence detention for a further 85 days, resulting in a total period of 399 days.  By the second plea hearing on 2 November 2022, the total period of pre-sentence detention was 653 days.  This does not include the 111 days referred to earlier.  Since 2 November, a further 13 days have passed, bringing the total to 666 days, not including today.  Those days are to be reckoned as already served, and I shall have them noted on the court record.

8You are due to appear in the Magistrates Court on 30 November to face a number of outstanding charges, and I understand that a plea of guilty is likely. 

Gravity of offending

9Clearly, drug trafficking in a commercial quantity is very serious offending, and the severe penalties decided by the legislature are a guide to that. The maximum penalties for trafficking in the commercial quantity and trafficking are 25 years and 15 years imprisonment, respectfully. Charge 1 is a category 2 offence, so s5(2H) of the Sentencing Act applies, meaning the court must impose the custodial sentence, unless one of the exceptions applies.  None of those exceptions apply in this matter.  The maximum penalty for each of the summary offences is two years imprisonment.

10The circumstances of this case point to trafficking for profit, rather than to sustain a habit, even though you were a user – and that has been conceded by Dr Gumbleton on your behalf.  You were trafficking in two drugs of dependence in a single day at relatively high levels of each drug, and the proceeds found in your possession were substantial.  There is a significant need for the principle of general deterrence to be reflected in the sentence.

11The prosecution position was that your offending should be assessed as being at the high end because of the quantity of both drugs and the money found.  It was submitted that being on a CCO and on bail at the time were aggravating features.  That, of course, is to be taken into account, even though you would be sentenced for the bail offence separately on a later date.  On the other hand, the offending was limited in scope and time and you were acting alone.  The defence did not, in effect, quibble with the description of “high end” offending, noting that it was not at the highest end.

Personal background and circumstances

12You were born in Iraq and grew up in a village in the south near the Kuwaiti border.  Your family is of Shi’ite Muslim background.   Your father and two uncles were conscripted into the Iraqi army during the Iran/Iraq war in the 1980s.  Tragically, your uncles were jailed and executed by the Saddam Hussein regime.  Your father had fled Iraq by the time you were one year old, and as a child you witnessed atrocities occurring after the fall of the Saddam Hussein regime and during the American coalition occupation.

13In 2007, your father came to Australia on a protection visa.  Shortly after that, aged 11, you and your mother fled Iraq and came to Australia seeking protection.  You lived here with your parents who found it difficult to adjust.  Your father was injured in a work accident and was placed on a disability support pension.  In 2010, you returned to Iraq to visit your terminally ill paternal grandmother, to whom you were close.  She died shortly after your visit, and you were greatly affected by that.  You had found it difficult to adjust on your arrival in Australia, and you were bullied at school due to your background and poor English.

14You left school part way through year 10, and have had little employment, apart from some work in an abattoir and later some scaffolding work.  You had become associated with negative peers at a young age using drugs and alcohol.  At the time of the offending, you were using methylamphetamine and cocaine, sometimes staying awake for three to four days.  Your first experience of drug treatment was while on bail for this matter, when you were placed on CISP until the committal.  At that time, CISP was not available in the County Court, so you could not continue. 

15You began offending at an early age with some Children’s Court appearances, followed by drug-related and driving offences, but you have only ever been sentenced to 14 days in custody and have no previous convictions for trafficking.  The serious complication in your criminal history occurred when, on 6 February 2019, you were arrested and remanded in custody in relation to murder allegations.  You and three others were arrested over the shooting of Anwar Teriaki in Roxburgh Park on 9 August 2017.

16The charge against you was struck out at the committal hearing in August 2019.  As a result, you spent six months and 16 days in prison for which you have received no credit.  It is sometimes called dead time or Renzella time, and may be taken into account by a sentencing judge as a matter of general mitigation to moderate the sentence, but it cannot be used arithmetically to reduce the length of any prison sentence. 

17On 3 July 2019, a month before the committal, you had been sentenced by a magistrate to six months imprisonment for breaching an earlier CCO.  You appealed that sentence and came before Judge Fox, then of this court, who allowed the appeal and imposed a CCO[1].  Judge Fox took into account an unquantified portion of the “dead time”.

[1] Although breach proceedings were in contemplation, the time for initiating those proceedings had expired under s 83(AH) of the Sentencing Act

18In early February 2022, you were assessed by consultant psychologist, Mr Ian McKinnon, who diagnosed Complex Post-traumatic Stress Disorder, with features of anxiety and depression.  This disorder had its origins in the traumatic and distressing experiences of your early childhood, with your later difficulties also contributing.  Excuse me.  Mr McKinnon also diagnosed Polysubstance Abuse Disorder, described as having occurred in the context of elevation of your symptoms of Complex Post-Traumatic Stress Disorder at times of chronic distress, and your attempts to self-medicate.  Mr McKinnon observed this to be in remission since your incarceration.  He also considered that you are vulnerable to relapse into substance abuse in unstable circumstances.

19You indicated to Mr McKinnon your acceptance of responsibility for your offending and that you are distressed about it.  He considers that a long period of imprisonment is likely to cause you to deteriorate psychologically, and at that time you could not have any treatment because of the limitations on programs in prisons due to the pandemic. 

20Other aspects of your time in custody are also relevant.  You have spent significant periods in custody and isolation due to the need to separate you from other prisoners associated with criminal groups.  This was connected with the serious charges against you which eventually did not proceed, which I mentioned earlier.

21The effects of the COVID pandemic have meant few visits, restrictive movement in and out of your cell and limited rehabilitation and educational programs.  In particular, these limitations have added to your experience of Post-Traumatic Stress Disorder, and there is a risk that this ongoing situation may cause elevated levels of anxiety and depression. 

Other Mitigating Factors

22There are a number of other mitigating factors to which I turn now.

23You were aged 23 at the time of the offending and you are still a young man, aged 26.  You have had a very difficult past, which still affects you.  The benefit of treatment, some insight and increasing maturity may help you to avoid relapsing into drug use and reoffending.  Other matters that need addressing are your need for further education and training and, of course, employment.

24Your prospects for rehabilitation should be assessed, at least in part, against the background of your experience of incarceration since your initial arrest, because it was your first time in custody.  As I alluded to earlier, from your arrest until you were bailed on 29 September 2020, a total of 314 days, you were detained in the high security remand unit in solitary confinement and locked up for 23 hours a day.  That period included the first six months of the COVID 19 pandemic.  In either circumstances, you had no access to any programs and this was the main focus of your bail application.

25While on bail, you participated in the CISP program, and according to your Exit Report you engaged very well.  In January 2021 you were referred for drug counselling for long-standing polysubstance abuse in the context of self-medication, as mentioned earlier.  By August 2021, you were back in custody and there was no record of your progress between January and August of that year.  From August 2021, you were again housed in solitary confinement in Port Phillip prison.  That persisted until March this year, when you were placed in a unit housing intellectually disabled prisoners and bizarrely, members of motorcycle groups.

26At the same time, you had your first opportunity to join programs and you took part in a Learning Plan, preparing you for undertaking Certificate courses.  Several months later, you completed a drug education course and you have commenced a course in business management.  Because opportunities for drug counselling in prison were not available due to the waiting list, you commenced private counselling, which I understand was funded by your family.  This was conducted by a reputable and experienced clinician, Ms Karly Doyle, over several sessions via teleconferencing between April and July and several further sessions since then.

27Ms Doyle reported that you confirmed your abstinence from drugs since 2020, and you were able to identify the personal circumstances which had assisted with this such as stable accommodation, family support and regular employment.  She considered that your goals are protective and you were very responsive to treatment.  While general deterrence remains a significant sentencing objective, your progress, remorse and insight should result in a reduced focus on specific deterrence. 

28Dr Gumbleton submitted on your behalf that a prison sentence that might otherwise be appropriate for drug trafficking such as this could be reduced because of the combination of mitigating circumstances.  These include the extremely difficult conditions of your imprisonment, your motivation for rehabilitation demonstrated by the steps you have taken, as well as your progress in that regard.  There is ample evidence of all those factors.  In the case of any recovering drug abuser with a considerable criminal history related to that abuse, prospects for rehabilitation are usually considered guarded.  Your prospects, while still guarded, appear to have some positive foundations.

29You state in your letter to the court that you realise how drug use has an impact on the community, and although that perhaps falls short of an expression of remorse, your stated intention for a better life carries with it an underlying regret for your offending.  Your plea of guilty is of great value to the court and to the criminal justice system for having avoided a trial, particularly when the court still has an enormous backlog of trials because of the effects of the pandemic.  It means you are entitled to a significant discount on your sentence, greater than might often be the case. 

30The combined mitigating factors provide a compelling reason for leniency and warrant a relatively modest head sentence.  Your recent successful engagement with counselling leads me to acknowledge your good progress by fixing only a short further period to be served, before being eligible for parole.  I have given earnest consideration to Dr Gumbleton’s submission that time served was a sufficient sentence, but having weighed all the competing factors, I disagree. 

Sentence

31I sentence you to the following terms of imprisonment.  For Charge 1, four years.  For Charge 2, two years.  For summary Charge 5, 1 year.  For summary Charge 7, 1 year.  The sentence for Charge 1 is the base sentence, for purposes of cumulation. 

32I order that six months of the sentence for Charge 2 and three months of each of the sentences for the summary charges be served in cumulation upon the base sentence.  That results in a total effective sentence of five years.  I order that you serve two years and four months before being eligible for parole. 

33Pursuant to s6AAA, if you had pleaded not guilty to these charges, I would have sentenced you to seven years imprisonment with a non-parole period of four years. 

34Orders for forfeiture and disposal are sought by the prosecution, and I make that order subject to any objection on your behalf.  Mr Bazzi, is there any objection?

35MR BAZZI:  No, Your Honour, there’s not.

36HER HONOUR:  Thank you.  I’ve already stated that pre-sentence detention is 666 days, not including today.  Is there any comment on the accuracy of that calculation?

37MS HAMNETT:  No, that is the calculation, Your Honour.  Just to clarify, there was a forfeiture order and a disposal order.

38HER HONOUR:  There are both, are there?

39MS HAMNETT:  Yes.  Yes, Your Honour.  Thank you – and Your Honour has those.  Thank you.

40HER HONOUR:  Thank you for clarifying that.

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