Director of Public Prosecutions v Allouche
[2018] VCC 1038
•6 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 17-01102
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BELAL ALLOUCHE |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 June 2018 | |
DATE OF SENTENCE: | 6 July 2018 | |
CASE MAY BE CITED AS: | DPP v Allouche | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1038 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trafficking in a Drug of Dependence – 1,4-Butanediol - cannabis – Ecstasy – Methylamphetamine - Commercial Quantity – Youthful offender – Conduit between suppliers and customers
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence: Imprisonment for a term of 6 years and 6 months with a non-parole period of 3 years and 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Brown | Office of Public Prosecutions |
| For the Accused | Mr Z. Zayler | Melasecca Kelly & Zayler |
HER HONOUR:
1 Belal Allouche, you have pleaded guilty to two charges of trafficking in a drug of dependence in a quantity that was not less than a commercial quantity (Charges 2 and 3) and two charges of trafficking in a drug of dependence (Charges 1 and 4). The maximum penalty for trafficking in not less than a commercial quantity of a drug of dependence is 25 years’ imprisonment. The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment.
2 You have also pleaded guilty to an uplifted summary charge of dealing with property (namely $110,815) suspected of being the proceeds of crime, for which the maximum penalty is two years’ imprisonment.
3 The circumstances of your offending are set out in detail in the Summary of Prosecution Opening tendered at the plea hearing and I sentence you on the basis of the facts contained in that document. Your offending conduct can be briefly described in the following terms.
4 Your drug trafficking activities were the subject of a police operation in early 2016 after police discovered your association with James Mobasheri ("Mobasheri"), who was the target of a separate police operation. Through the use of covert operatives as well as tracking and listening devices, police discovered that you acted as a conduit between suppliers and customers and through your extensive contacts were able to facilitate the trafficking of large amounts of drugs, on some occasions in a very brief period of time. In particular, you supplied Mobasheri with significant amounts of ecstasy (both in the form of MDMA and MDA), methylamphetamine, 1,4-Butanediol (“1,4 BD”) and cannabis which you obtained from Khaled Moustafa; and trafficked drugs of dependence directly from your home address and from a vehicle parked outside the home address.
5 On 28 June 2016, when police executed a search warrant at your address, a total of $110,815 in cash was located in various parts of your bedroom and other parts of the house. The uplifted summary charge relates to that sum.
6 Between 10 December 2015 and 15 April 2016, on eight occasions you trafficked cannabis weighing between 2.2 kg and 4.4 kg. The total cannabis trafficked was 24.7 kg. This conduct is the subject of Charge 1.
7 Between 28 December 2015 and 21 March 2016, on eight occasions you trafficked 1,4 BD in quantities between 1 litre and 13 litres. The total weight of 1,4 BD trafficked was at least 42 litres. This conduct is the subject of Charge 2.
8 Between 22 January 2016 and 9 March 2016, you trafficked on one occasion in 667 MDMA pills weighing 186.76 grams; and on three other occasions you trafficked in MDA pills (516 pills on the first occasion; 2052 pills on the second occasion; 316 pills on the third occasion) weighing a total of 807.52 grams. The total number of pills trafficked was 3551 pills, weighing 994.28 grams. This conduct is the subject of Charge 3.
9 Between 22 January 2016 and 21 May 2016, over six occasions you trafficked in a total quantity of at least 217 grams of methylamphetamine. The weights trafficked on each occasion varied between 21 grams and 84 grams. This conduct is the subject of Charge 4.
10 On 31 May 2017, you were committed for trial and on 3 April 2018, after some negotiations, the current indictment was agreed upon and you indicated your intention to plead guilty to all charges.
11
Your personal circumstances are set out in the psychological assessment of
Mr Luke Armstrong dated 15 June 2018.[1]
[1] Exhibit A
12 You are the youngest of 12 children in a Lebanese family. Your parents migrated to Australia in the 1970s. Your father treated your older siblings harshly and many of your older brothers have drug problems and criminal antecedents. You are closest to your brother Mohammad, who works as a mechanic, and to your four older sisters. You were the most academic of your siblings and your parents had very high expectations of you, wanting you to study law and become a barrister. You would have preferred to do a trade. You worked in part-time jobs from the age of 13. You finished VCE, enrolled in an Arts degree in 2013, and then transferred to law school in 2014. You felt isolated at university and dropped out. You worked for part of 2015 as a security officer but were then mostly unemployed. You felt pressure from your father throughout 2015 to resume your studies. During this time, you began using cocaine, and quickly became addicted beyond your own financial capacity. Within six months you were binging on cocaine twice per week. You were swept up into a world of fantasy, associating with other drug users, and found it difficult to escape. According to your counsel, you were able to tap into the drug connections known to your family. However, you decided to cease using cocaine a few weeks before your arrest.
13 Mr Armstrong opined that in the 12 months after June 2015 you suffered a Stimulant (Cocaine) Use Disorder of moderate severity, but that this condition is now in sustained remission. You do not suffer from any mental health conditions. Your personality profile suggests that you have had some difficulty establishing your independence from your father, have a tendency to be grandiose and competitive, and have limited insight into your own weaknesses. You told Mr Armstrong that you were ashamed of your conduct, glad to have been arrested and to have the chance to put these matters behind you and to move on with your life, and that you plan to work in construction. He noted that you have been seeing a counsellor, Ms Amanda Brown, to assist you with remaining drug free. Mr Armstrong concluded that you would benefit once released from intensive psychological treatment over “many months” to prevent a return to drug taking and to improve your insight and provide you with tools to manage underlying personality difficulties.
14 Amanda Brown, a rehabilitation consultant assisting you with your substance abuse since your release on bail, reported[2] on 19 June 2018 that you told her you have been drug free for the past 12 months. She noted that urine screen testing since April 2018 confirms your drug free status.
[2] Exhibit B
15 Your counsel tendered three references, one from your treating chiropractor and two from former employers. These letters indicate that you have a good work history and have expressed a great deal of remorse for your offending.
16 In mitigation, your counsel submitted that your offending occurred when you were a young man, only 21 years old; that you had a solid work history and no relevant prior offending; that prior to offending, you had been under a great deal of parental pressure to succeed academically, and that you were in the grips of cocaine addiction at the time of offending.
17 Your early plea of guilty demonstrates that you have taken responsibility for your actions, and you have expressed remorse to all those who have provided letters or reports to the court. Your plea has saved the community and the court and witnesses the expense and inconvenience of what would have been a lengthy trial. You are drug free, have completed two-thirds of a qualification in construction, and have good prospects of employment upon release. Provided you get some psychological treatment to assist you with your personality difficulties, your prospects of rehabilitation should be regarded as better than moderate.
18 Your counsel submitted that any sentence on the uplifted summary charge should be served concurrently with the sentence imposed on Charges 1 to 4.
19 Your counsel submitted that in these circumstances it would be appropriate for there to be a significant gap between the head sentence and the non-parole period imposed.
20 The prosecution pointed out that on quantity alone, the conduct in Charges 1 and 4 are relatively serious examples of trafficking simpliciter in that both quantities are close to the commercial quantity of each substance, whereas the quantity involved in Charge 3, namely 994.28 g, was the least serious example of your offending.[3]
[3] By reference to quantity alone
21 The prosecution agreed that you are a youthful, intelligent offender with no relevant prior matters and with better than moderate prospects of rehabilitation, but that the principle of general deterrence looms large in your case. It was conceded that you should get the benefit of a discount for your plea of guilty, and that there should be a considerable disparity between the head sentence and the non-parole period. It was submitted that if imprisoned on Charge 2, you fall to be sentenced on Charge 3 as a serious drug offender. However, the prosecution indicated that it did not seek the imposition of a disproportionate sentence in relation to Charge 3. It was pointed out and was submitted that any sentence on Charge 3 would be cumulative upon the sentence on Charge 2 unless the court directs otherwise. In relation to cumulation and concurrency, the prosecution conceded that you were trafficking multiple substances at the same time, but submitted that the number of transactions and quantities involved demonstrated that the offending went far further than facilitating your own habit.
Sentencing reasons
22 The basic purposes for which a court may impose a sentence are: denunciation; punishment; general deterrence; specific deterrence; and protection of the community. In sentencing you, I must have regard to a range of matters including, relevantly, the seriousness of your offending, your culpability for it, and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated into society.
23 Your offending is serious and deserves to be denounced. It took place over five months, involved four different drugs of dependence, commercial quantities of two of those drugs of dependence, and in relation to cannabis, a quantity just short of the commercial quantity. In relation to the drug 1,4 BD, the quantity trafficked is 22 times the commercial quantity of that drug. In relation to MDMA and MDA, the quantity trafficked is nearly twice the commercial quantity. It is clear that you played an important role in sourcing and supplying these drugs, notwithstanding that you were addicted to cocaine during the period of offending. The number of transactions and quantities involved establishes that the offending was for the purpose of financial gain. Your conduct is to be denounced as a serious example of drug trafficking. General deterrence is the overriding sentencing consideration in that I must impose a sentence that will deter other potential offenders from engaging in drug trafficking.
24 The sentence imposed upon you must also deter you from re-offending. Given your age, intelligence, lack of relevant prior convictions, cocaine addiction at the time of offending, remorse, family support, educational efforts and job prospects, I accept that you are unlikely to re-offend and that specific deterrence has less weight in sentencing you than it would in the absence of these factors.
25 In sentencing you, I have also had regard to current sentencing practice.
26 I accept the matters put in mitigation by your counsel. Your early plea of guilty shows that you have taken responsibility for your offending and has saved the court the time and expense of a jury trial. I accept that you have expressed remorse to your assessing psychologist and to those who provided character references for you. You are a youthful offender with no relevant prior convictions. You have solid family support, are completing a qualification in construction, and have promising employment prospects. I assess your prospects of rehabilitation as better than moderate.
27
In relation to cumulation and concurrency, I note that I have taken into account that your offending took place over a confined period during which you trafficked multiple substances at the same time. I acknowledge that on Charge 3, you are to be sentenced as a serious drug offender, and any sentence imposed on this charge must be served cumulatively upon the sentence imposed on
Charge 2 unless I direct otherwise. I also note that the prosecution did not seek a disproportionate sentence. I also note the prosecution’s concession that in relation to quantity alone, Charge 3 is the least serious example of your offending when compared to the quantities involved in the remaining charges.
28 Taking all of the relevant factors into account, I impose the following sentence. Would you please stand?
29 On Charge 2, I sentence you to a term of imprisonment of four years. This is the base sentence.
30 On Charge 3, I sentence you to a term of imprisonment of two years. I note the concession made by the prosecution concerning the seriousness of the offending the subject of this charge. However, on the authorities, quantity of a drug of dependence trafficked is only one of the factors which must be considered in the sentencing process. I therefore direct that 12 months of the sentence on Charge 3 is to be served cumulatively upon the sentence imposed on Charge 2.
31 On Charge 1, I sentence you to a term of imprisonment of two years. I direct that nine months of this sentence is to be served cumulatively upon the sentence imposed on Charge 2.
32 On Charge 4, I sentence you to a term of imprisonment of two years. I direct that nine months of this sentence is to be served cumulatively upon the sentence imposed on Charge 2.
33 On the uplifted summary charge, I sentence you to six months’ imprisonment, to be served concurrently with the sentence imposed on Charge 2.
34 The total effective sentence is one of six years and six months' imprisonment. I direct that you serve a period of three years and nine months' imprisonment before being eligible for parole.
35 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that if you had proceeded to trial and had been convicted, you would have received a sentence of at least nine years with a non-parole period of six years.
36 There are 25 days of pre-sentence detention, is that correct?
37 MS BROWN: That is correct, Your Honour.
38 MR ZAYLER: Yes, Your Honour.
39 HER HONOUR: So I declare that the 25 days that you have served in pre-sentence detention is to be reckoned to be part of the term of imprisonment that I have just announced and is to be deducted administratively.
40 The prosecution has also sought an order pursuant to s.464ZF of the Crimes Act 1958 in relation to the taking of a forensic sample and you have consented to that order through your counsel. I will make that order because you have consented to it and because having regard to the nature of the offending, I consider that it is in the interest of justice for the order to be made.
41 In making this order, I need to inform you, Mr Allouche, that I am signing this order that requires you to undertake a forensic procedure for the taking of a scraping from the mouth and/or a blood sample until a sample of sufficient standard is obtained for placement on the database. I advise you that if at the time of the request for such a sample is made, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand?
42 Lastly, the prosecution has also sought a forfeiture order in relation to six separate items of Australian Currency totalling $110,815. You have consented to that order through your counsel and I will make that order. The only thing I want to know is to which charges should that forfeiture order attach?
43 MS BROWN: The related summary offence, Your Honour.
44 HER HONOUR: Just the related summary offence. All right. Thank you. Are there any other matters that need to be addressed?
45 COUNSEL: No, Your Honour.
46 HER HONOUR: All right.
47 MR ZAYLER: As Your Honour pleases.
48 HER HONOUR: Thank you. So we will make the orders.
49 MR ZAYLER: Thank you.
50 HER HONOUR: Perhaps Mr Allouche can be taken out. Thank you.
51 MR ZAYLER: Thank you, Your Honour.
52 HER HONOUR: All right.
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