Director of Public Prosecutions v Almandalawy

[2017] VCC 2002

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01844

DIRECTOR OF PUBLIC PROSECUTIONS

v

RASSOUL ALMANDALAWY

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2017
DATE OF SENTENCE:	21 December 2017
CASE MAY BE CITED AS:	DPP v Almandalawy
MEDIUM NEUTRAL CITATION:	[2017] VCC

REASONS FOR SENTENCE
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Subject:  Sentencing; plea of guilty

Catchwords:  Trafficking commercial quantity of MDMA; possession of unregistered handguns; youthful offender; very strong steps towards rehabilitation

Legislation Cited:     Crimes Act 1914 (Cth) ss 16A(1) & (2); Sentencing Act 1991 (Vic) ss 5(3), 6AAA

Cases Cited:Berichon v R [2013] VSCA 319; Saracevic v R [2017] VSCA 212; DPP v Basic [2016] VSCA 99; DPP v Basic [2017] VSCA 376; R v Nguyen; R v Pham [2010] NSWCCA 238; Nguyen v R; Phommalysack v R [2011] VSCA 32; R v Renzella [1997] 2 VR 88; Akoka v R [2017] VSCA 214;

Sentence:Total State sentence: 8 months imprisonment; Commonwealth sentence: 5 years imprisonment; Non-parole period: 2 years; cumulation between State and Federal: 2 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Barry	Commonwealth Director of Public Prosecutions
For the Accused	Ms E. Ellis	David Barrese & Associates

HER HONOUR:

1Rassoul Almandalawy, you have pleaded guilty on a Commonwealth indictment to a charge of attempting to traffic a commercial quantity of a controlled drug, namely MDMA.  On a State indictment you have pleaded guilty to one charge of possessing a drug of dependence, namely methylamphetamine, and one charge of possessing three unregistered handguns, those being State charges.  You have also agreed to have transferred and heard in this court and have pleaded guilty to a summary charge of possessing a silencer without a permit.

2The maximum penalty for the Commonwealth charge is life imprisonment. 
The maximum penalty for the State charge of possession of methylamphetamine is five years' imprisonment or, if I were satisfied that it was not for the purpose of trafficking, a lower maximum of one year imprisonment.  The maximum for possession of an unregistered handgun is 600 penalty units or seven years' imprisonment for a first offence, which yours was, and I note that this is brought as a single charge.  The maximum for the summary charge of possession of a silencer without a permit is 120 penalty units or two years' imprisonment. 

3You have also admitted a prior criminal history to which I shall refer later.

4The circumstances giving rise to each of these charges are set out in detail in the Prosecution Openings which I shall not repeat at length, but only summarise parts to enable an assessment of the seriousness and your involvement in these offences. 

5The Commonwealth charge relates to your conduct on 24 December 2015,  when, together with your co-accused,
Mr Mohammed Elakkoumi, you assisted in collecting and transferring a parcel which you believed to contain a significant amount of illegal drugs.  In fact the parcel no longer contained such drugs by the time you dealt with it, and that is why the charge is of attempting to traffic such drugs.  However the maximum penalty is no lower just because the drugs were no longer present and the circumstances are no less serious, because your intention was to deal with the package believing that it did contain a significant quantity of drugs.

6In essence, a package sent by post from overseas had been intercepted by authorities a week earlier, and the 12 glass bottles it contained, labelled as
pre-packaged bread mix, on examination were found to contain a total of just under eight kilograms of material which contained the controlled drug known as MDMA of which 6.142 kilograms was pure MDMA.  The legislation sets 500 grams or more as a commercial quantity of that drug,  so the package contained more than 12 times the threshold amount for a commercial quantity.  The street value of the drug was in excess of $2 million. 

7After interception of the package, Australian Federal Police commenced an investigation, as part of which they substituted an inert substance for the drugs and undertook a controlled delivery under surveillance, with listening devices placed in the package. On 24 September 2015 the parcel was delivered to the addressee, Mr Shaw, and he was kept under surveillance. 

8Later that afternoon Shaw drove to South Melbourne where he entered a café which at about the same time you also entered with two other men and sat at a table with them.  You say you had simply come with them for a coffee after having a tattoo.  About 20 minutes later you all left the café and met on the pavement Mr Elakkoumi, who had just driven there in a black Renault car which had been hired by you about a week earlier. I infer that he came to meet you.

9You and Elakkoumi went to the Renault, and in it followed Shaw who drove his car home.  While Elakkoumi followed Shaw into his home, you swapped to the driver's seat of the Renault and re-positioned it to allow easy access.  Elakkoumi then carried the package which had previously been delivered to Shaw to the car, got into the back seat, and while he held and opened the package, you drove away.  Conversation between the two of you was intercepted through the listening device in the package. 

10You drove to a block of apartments in Lorimer Street, Docklands, Elakkoumi giving you some directions.  This was for the purpose of the parcel being transferred into another car parked in the car park of that building.  The car space in which that car, a Toyota Corolla, was parked, had been leased by you or a person using your identification, more than three months earlier for a four month period.  A swipe card giving access to the car park had been provided when the car space was leased. 

11On reaching the car park, you got out of the car and waited outside while Elakkoumi drove the Renault into the car park using a pass card, then drove to beside where the Toyota Corolla was parked, removed the 12 bottles from their box and wrapping and placed them into the boot of the Toyota Corolla.  He then drove out of the car park, collected you, and the two of you drove off via Citylink to Tullamarine.  This active participation by you in the transferring of this parcel had lasted barely an hour and a half.  You eventually drove that car to where you were living at Gimlet Close, Meadow Heights.  

12At about 8.30 that night AFP officers arrested you as you entered the driver's seat of the Renault.  The premises and car were secured and searched the next day. 

13A search of the Renault revealed, relevantly, the empty box for the consignment in the rear seat and a car rental agreement for the Renault in your name. 

14On searching your home police found on the bedside table of the master bedroom, a soft drink can which had a hidden twist top lid, inside which were four clip-seal bags each containing white crystalline substance, which on examination totalled about 17.1 grams of pure methylamphetamine.  A trafficable quantity of that drug is three grams, so this was more than five times a trafficable quantity.  This is the basis of Charge 1 on the State indictment of possession of methylamphetamine.  Also found in the bedroom was a substantial sum of cash, but its source is disputed, and I am not in a position to make any finding about that.  You had about $910 cash on you.

15Police also found and seized a Smith & Wesson revolver from under a bedside table in the master bedroom.  In the garage, a 9 millimetre Parabellum calibre pistol was found under the rear roller door, and a .32 auto-calibre self-loading pistol also found inside the rear roller door in the garage.  None of these firearms was registered.  These three guns are the subject of Charge 2 on the State indictment, possession of unregistered handgun.  All of these guns were reasonably capable of being raised and fired by one hand.  None was loaded at the time.  Ammunition found in a cupboard under the en suite sink, and some found in a silver Honda outside the house, would all have fitted the third gun, the self-loading pistol. 

16A silencer was found behind a tray inside the fridge.  This is the basis of the related summary offence of possessing a silencer without a permit. 

17Also found in the fridge were two black firearm magazines, one containing rounds. One magazine was capable of holding cartridges to load the Parabellum pistol.  The other magazine had the capacity to hold seven .32 auto-calibre cartridges capable of being fitted to the self-loading pistol.

18The revolver under the bedside table had no rounds in the chamber, and the chamber appeared to be jammed.  On examination this revolver was in poor mechanical condition, missing several components including the trigger spring that would have allowed it to function normally; however on testing it was capable of intermittently discharging a chambered cartridge.

19The 9 millimetre Parabellum was partially disassembled when found, and re-assembled for examination purposes.  It had been fitted with an aftermarket barrel of Italian manufacture.  It had a thread which would have enabled the fitting of the silencer to it. 

20The .32 Browning self-loading pistol had an obliterated serial number which was not able to be restored. 

21The silencer was capable of being screwed to the muzzle of a firearm, the second one that I have described, that had been threaded.  The baffles of the silencer were heavily sooted consistent with previous use.  When attached for testing to the Parabellum self-loading pistol, it noticeably decreased the noise of discharge of that pistol.  DNA found on that pistol provided extremely strong support for the proposition that the main component of the DNA came from you.

22Starting with the State offences I must assess the objective and subjective seriousness of the offending. 

23For Charge 1, of possession of methylamphetamine, I find the applicable maximum and its reflection of relative seriousness to be five years' imprisonment, as it was conceded by you that some of that drug was in your possession for sale.  I take into account however that you were using that drug heavily at the time yourself, and the possession, insofar as it was for sale, was to enable your own use.  That is not to condone this offending but I regard it as at relatively low, although not the lowest, level of seriousness for this offence. 

24In relation to Charge 2, offences for possession of firearms appear to be becoming more prevalent and must be treated seriously by any sentencing court.  The circumstances of the possession are central to assessment of the seriousness of any particular firearm offence. 

25In the case of Berichon,[1] which dealt with the offence of being a prohibited person in possession of an unregistered firearm, an offence carrying a higher maximum penalty than the present one, Redlich JA distinguished the conduct of offenders as being placed in two broad categories of seriousness. The first is of cases where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity.  Sentences of a low order of imprisonment are usually appropriate for these, unless the previous criminal history of the offender warrants a more substantial sentence proportionate to the gravity of the offence. The second category of cases is where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose including as a means of enforcement, where more severe sentences are then usually in order.  The conclusion as to whether a firearm is in the possession of the offender for the purpose of criminal activity depends on the court being satisfied of that beyond reasonable doubt. 

[1]Berichon v R [2013] VSCA 319.

26I was also referred to the Court of Appeal decision in Sarajevic v R[2] in which a sentence of 18 months' imprisonment for possession of an unregistered general category handgun was not overturned although argued to be manifestly excessive when viewed against current sentencing practice. In that case, at first instance, the County Court judge had concluded that the circumstances were a very serious example of a serious offence - the facts being that the offender was arrested getting into a car on his way to a meeting to collect a debt, having in the foot well of the front passenger seat a

[2] [2017] VSCA 212.

semi-automatic pistol with a fully loaded magazine and ten additional rounds of loose ammunition along with a pair of latex gloves.  The judge made a finding that the offender possessed the firearm for entirely criminal purposes, and that finding was not challenged on appeal.

27I have also taken into account the even more recent decision handed down just this week by the Court of Appeal in DPP v Basic[3] as well as the decision in Basic's[4] case in 2016.  Those again were for the more serious offence of being a prohibited person in possession of firearms, and included loaded firearms being kept for likely imminent use, although in the 2017 case the imminent use was anticipated to be in the offender's own defence, and that was an offender with a recent and serious criminal history including for similar charges. 

[3] [2017] VSCA 376.

[4]DPP v Basic [2016] VSCA 99.

28Applying the Berichon categorisations to the present case I consider that there are very clear differences between this case and either the cases of Basic or Sarajevic. While there were three guns found, and some items consistent with the possibility of them being loaded, none of the handguns was actually loaded.  One was partly disassembled and the one found in the bedroom, while being in the same room as the methylamphetamine found in your possession, and a substantial sum of money, that gun was in poor mechanical condition with several parts missing so normal firing was not possible.  On testing, each of these guns was capable of discharging, but none in a form to readily do so.  The explanation for the presence of these guns by you was that you have developed an interest in firearms simply from watching movies. 

29In the circumstances I do not consider that I could find beyond reasonable doubt that the gun in the bedroom, although in the vicinity of drugs and a substantial sum of money, was for a criminal purpose. 

30I do not overlook the importance of general deterrence in imposing a sentence for this charge, and indeed, specific deterrence to persuade you to give up your interest in firearms, or at least to not pursue it without registration or permits as required.  However, I could not be satisfied that these were in your possession for any ongoing criminal activity or criminal purpose nor even for a purpose of being used at all. 

31I am satisfied that the circumstances of this offence therefore bring it into the low range for sentencing, however still require a sentence that will deter you and others from repeating it.

32As for the silencer, the keeping of it in the fridge is wholly unexplained and does raise a question as to its intended purpose.  I note that a forensic examination concluded that it had been used, although there is no time frame on that.  However, apart from it being capable of attachment to one gun in the garage, indeed a gun that was found partly disassembled at the time, I have insufficient evidence to conclude that it was being possessed for ongoing criminal activity or criminal purpose.  It is related to the offence of possession of the handguns and in my view does not call for any cumulation of sentence on that charge.

33The most serious of the charges on which I must sentence you is clearly the Commonwealth charge of attempting to traffic in a commercial quantity of MDMA.  The maximum penalty of life imprisonment is a clear reflection of that objective seriousness. 

34Under s.16A(1) and (2) of the Crimes Act (Cth) there are various principles which I must apply in determining your sentence on that charge. Under s.16A(2)(a) I must take into account the nature and circumstances of the offence. In doing this I must assess the level of criminality of your role in this enterprise. I have had regard in doing so to the principles distilled in the New South Wales decision in Nguyen and Pham[5] set out in the Victoria Court of Appeal in Nguyen and Phommalysack,[6]  although those cases were of importation charges. These principles include that the quantity of the illegal drug involved is highly relevant in determining the objective seriousness of the offence, and is often the main factor available to assess comparative seriousness of criminality. 

[5]R v Nguyen; R v Pham [2010] NSWCCA 238.

[6]Nguyen v R; Phommalysack v R [2011] VSCA 32.

35In this case the quantity, being over six kilograms of pure MDMA, which was more than 12 times the threshold amount for a commercial quantity of this drug, makes it a significant commercial quantity, although by no means the highest as very much larger quantities have been detected. While you probably did not know the actual amount involved, your plea of guilty reflects that you anticipated that there would be a significant quantity of the drug inside the parcel that you were participating in transferring. 

36As the principles make clear, and as is not unusual in a case such as this, it is impossible for me to directly compare your role with that of others, apart from Mr Elakkoumi, in this enterprise.  I am informed that no one else involved on the day was charged.  I take into account that there is nothing to suggest that your role included organising the importation of the drugs, nor arranging for its ultimate distribution and sale, nor in sharing of the ultimate profits. 

37Your role was to go with Mr Elakkoumi while he collected the parcel from Shaw at his home and to transport it to the car park in the Lorimer Street building where it was to be transferred into another car parked in a car space you had leased some months earlier. It is implicit from matters mentioned on the listening device during the car transfer of the parcel, that both you and Mr Elakkoumi were aware that you were transferring drugs, and aware of what colour they should be. 
The only reasonable inference available is that your motive for being involved in this activity was financial reward, but there is nothing to indicate how much reward you anticipated nor, as I have said, that you would share in ultimate substantial profits.

38Although you had hired the Renault car used to transport the parcel, I could not make a finding beyond reasonable doubt that you did so for this specific purpose.  Nor do I find, beyond reasonable doubt, that you leased the car space some three months earlier for this purpose. 

39I assess the objective level of your involvement as a little lower than that of Mr Elakkoumi, as he seems to have been the person assigned to actually carry the parcel that involved him being trusted both at the point of collection from Shaw and perhaps more so entering the car park alone to convey and transfer the content of the parcel into the other car. I accept that your role was confined in time and level of criminality but sophisticated importations of this order often involve numbers of people taking relatively brief actions as part of a much larger chain of distribution for ultimate sale. 

40From a subjective view I accept that you were relatively young at the time, being aged 22.  I also accept that you were vulnerable to being influenced by others, especially as you were a heavy user of methylamphetamine at the time, and taking into account your background of some difficulty adjusting to life in Australia after your refugee experiences.

41Your role was effectively next after first arrival of the parcel, exposing you and Mr Elakkoumi to possible detection, which also reflects your being at a relatively low level in the overall operation.  I find that your criminality was nowhere near as high as would have been that of an organiser of the importation, nor of a person who would eventually arrange or participate in possible processing and sale, nor indeed one who would reap the potential profits from the sale of this importation of drugs. Nevertheless, as is pointed out in many cases, involvement at any level in a drug trafficking offence must necessarily attract a significant sentence or the interests of general deterrence would not be served.  You participated knowing that you were doing so as a confined part of what you must have realised was a significant operation of drug trafficking.

42General deterrence, formally here referring to s.16A(2)(ja), is the most important sentencing purpose in cases of this type, and in this case especially having regard to the significant quantity of the drug involved and the apparent degree of planning.  The sentence must reflect the stern punishment to be expected by people who participate, even if not the organisers of such an operation.  The maximum penalty reflects the seriousness with which parliament regards such offending and features of such offences, including the difficulty of detecting it and the great social consequences that follow from the distribution and use of such drugs. As I have said these features mean that general deterrence must be given very considerable weight.  It is also necessary for adequate punishment to be conveyed by the sentence as well as the need to denounce the conduct in which you engaged. 

43HER HONOUR: Mr Almandalawy, I notice you are moving around.  Have you got particular discomfit or it is just having to listen to all of this?

44OFFENDER:  Ah, was getting comfortable, just listening.  That's all.

45HER HONOUR:  Are you able to concentrate if I keep going?

46OFFENDER:  Yeah.

47HER HONOUR:  All right.  You have pleaded guilty to these charges and under both Commonwealth and State sentencing principles that entitles you to some leniency in your sentence.  You indicated an intention to plead guilty to the firearms and possession charges earlier than the more serious Commonwealth charge.  Although you did not plead to the Commonwealth charge until after the trial had commenced, and after your co-accused Mr Elakkoumi had, you did so before a jury was empanelled.

48This was a plea to an amended charge compared with the one on which the trial was to be run, as it was with your co-accused, Mr Elakkoumi.  Whilst by no means an early plea of guilty, I take into account that the charge to which you pleaded is different from the one on which the trial commenced, even though it carries the same maximum penalty reflecting a similar level of seriousness. Even at the stage that it did occur, and effectively earlier for the State charges, there is considerable utilitarian value in your pleas of guilty in saving the community the time and cost of a jury trial and witnesses the inconvenience of having to give evidence.  You are entitled to some lenience for that utilitarian value alone.  In addition, in your case, I accept that you have shown a willingness to facilitate the course of justice and to accept responsibility for your actions.

49Although the formal pleas of guilty were delayed, I find that you have otherwise demonstrated a strong degree of contrition or remorse for your offending, consistent with your very strong efforts towards your own rehabilitation in the meantime about which I will mention more shortly. 

50After I have imposed sentences I shall state what they would have been had you not pleaded guilty. 

51I turn now to your personal circumstances.  You are now aged 24.  You were 22 at the time of this offending.  You were born in Iraq and came to Australia aged six with your family, fleeing violence in Iraq and to avoid your older brothers being conscripted.  Your family was granted refugee status but initially spent many months in Woomera detention centre.  You have described recently to Dr Cunningham still being haunted by an incident when you were alone in the family home in Iraq when it was robbed.  You also described to him your experience in Woomera, and compared it with being here in prison on remand. You thought prison preferable to the refugee camp at Woomera.

52You have three siblings, two older brothers born in Iraq and a younger sister born in Australia.  Your older brothers are both married with children, have been in no trouble with the law here, and you describe them, like your father, as being incredibly hardworking.

53Your father established a refrigeration business and you describe him, as I have said, as incredibly hardworking.  Unfortunately he is now very seriously ill.  Your mother has returned to work as a childcare worker.  You have mainly lived with your parents over the years and recently have still being doing so.

54After Woomera detention camp, the family lived in Shepparton then moved to Heidelberg where you commenced primary school.  The family moved twice more while you were still at school, and you moved schools each time. 
You struggled at school, being teased and bullied, getting into frequent trouble with other students, and struggling with the school work.  As a result you did not complete Year 9.

55At the age of about 15 you started working in your father's refrigeration installation business.  Unlike your older brothers who also went into that business and qualified as refrigeration mechanics and now run their own business, you did not manage to complete the qualification at trade school and eventually dropped out.

56Since about 2006 you have worked for your older brother, Matada, who is a refrigeration mechanic and he gave evidence before me.  He confirmed that years ago you did try trade school but found it hard to concentrate at those studies, with a lot of maths and physics and formulas.  He confirmed that you are still working for his company, and are now working very much harder than you used to do, are much more reliable than you were previously, and that you are much more mature and willing to listen to him.  He describes you working for him between March and September 2015 but only three or four days a week then, and being unreliable at that stage.  Your brother describes summer as a busy time for his business and that you would be working at least 50 hours per week whereas in winter the hours would range between 30-50. 

57The current arrangement is that you live at your parents' home, and as you do not have a car and are not permitted to drive, your brother sends one of the two other people who work for him to collect you in the mornings at about 5.30 am, and brings you to join him, and that you would not be finishing work before 6.00 pm and sometimes later.  He describes there having been massive changes in you in that you are now calmer, speak more clearly, take advice and have matured a lot.

58Due to your father's poor health over recent months, and inability to work more than about two hours and even then needing assistance, he sends you to help your father.  He described that this September, when he fractured his eye socket and was hospitalised, he gave you the keys to carry out work of his business, and you attended urgent calls for him, whereas two to three years ago when he went overseas he could not rely on you, and he left those keys with another company.

59He was aware that you were arrested. You were working for him at the time but he describes it as on and off, about three days a week compared with him being on call seven days a week.  He said in 2015 he was often paying you in cash.  He was aware that you had a substantial sum of cash from selling a property you had owned.  Asked whether he was aware of you using drugs in that period, he said that you would not tell him, but he was aware of you being very temperamental and there being real difficulty getting you to listen to him.

60I am told that you began some intermittent drug use in your teens but that it was in early 2015 that you began using regularly, commencing at bars and nightclubs using cocaine, and then in March 2015 you began using methylamphetamine.  Within a month you were using it daily, and it escalated up to the time of this offending some six months' later.  Its effect on you was reflected in your older brother's descriptions, that I have just mentioned, of noticing in that period that your attitude and attendance at work was unreliable, and your behaviour and manner temperamental.

61You do have some prior criminal history but not extensive and nothing nearly as serious as the present charges.  You were first before the Children's Court in January 2012 on a charge of possessing a controlled weapon, which I am told was a knife.  A good behaviour bond without conviction was imposed and the matter dismissed six months later on compliance with the bond.  There was one other appearance in 2012 at the Children's Court, involving criminal damage and threatening serious injury.  I am told that that arose out of a fight which broke out at a party you were attending when everyone had been consuming alcohol and was intoxicated.  You were aged 17 at the time.  A youth supervision order was imposed, which you do not appear to have breached. 

62Since the matters for which I sentence you, you have been dealt with at the Magistrates' Court for driving offences, and also for possessing methylamphetamine, assault with a weapon, and possessing cartridge ammunition and a prohibited weapon.  I am told that in February 2016, while on bail, you were stopped by police and produced what police thought was a gun but was not.  However, on searching they found a samurai sword at your home, that being the offensive weapon, and found you in possession of methylamphetamine.

63While you do not come before the court with a completely clear record, I do not regard any of your prior offending or indeed the subsequent matters as significant in deciding your sentence.  The particular relevance of the subsequent matters I will discuss later as they affect the time that you have spent in custody.

64After your arrest on 24 September 2015 on the Commonwealth charge, you were remanded in custody.  You were granted bail just over a month later, with strict conditions, but a month later charged and again remanded in relation to the items found at your residence, being the subject of the three other charges that are now before me. 

65You were granted bail again on 27 November 2015, but two months later, on
4 February 2016, you were arrested and remanded for other offending, being the charges I have just described when you were stopped by police whilst driving.  For those offences you were ultimately sentenced to a fine, and no custodial penalty.  You had remained in custody, however, on those charges until bailed on 6 June last year. It is relevant that you had spent almost four months in custody in respect of those February 2016 charges, which period of time has not been counted in the relevant sentence on them.  As you were formally on bail for all of the present charges, that period will not formally be credited as pre-sentence detention.  However, I have taken it into account under the principles discussed in Renzella's case, and have moderated both your head sentence and non-parole period on the Commonwealth charge accordingly.

66These periods on remand were your first experience of imprisonment, and as a 22 year old and in adult custody they must have been a salutary experience.  Your behaviour since June 2016 when again bailed is consistent with you having learnt the need to reform your conduct, and in particular the drug use and associations that led you into such trouble. You have applied yourself to address those problems ever since.

67On 6 June 2016you were granted bail to a residential drug rehabilitation facility called Melbourne Addiction Recovery Program (MARP).  That facility runs a 12-14 week whole of life residential rehabilitation program and you were there for 13 weeks.  A report from the manager of that program is strongly supportive of how well you became involved and progressed there.  Indeed it is the most supportive report of such type that I have read in many years as a judge of this court.

68It was noted that initially you were quite juvenile in your remarks and responses to issues, but that to your credit within a very short time you became extremely mature and insightful.  You completed more than 50 groups and participated in weekly one on one drug and alcohol counselling sessions.  You presented as honest and humble in both the group and individual counselling sessions, and were able to reflect on the issues which had contributed to your offending behaviour.  You were noted to spend time getting to know the other clients. 
You showed particular kindness towards a client who had lost his mother while in the program. All random drug urine screens and breathalyser tests of you were clean.
The writer notes that you were a pleasure to work with, showed respect to all staff and co-residents, and what initially had appeared to be bravado, turned into a very positive and humble gratitude for the opportunity you had been given. Towards the end of your stay you were allowed to return to work with your brother whilst still resident at MARP, and showed enjoyment at working with your family and assisting your mother. 

69That report was written in September 2016, and at that stage you had remained in contact each week with the writer and had shown yourself very motivated and encouraged by your recovery progress remaining sober.  I am told that you have remained abstinent from drugs since, and that was confirmed by you to Dr Cunningham last month.

70This is one of the strongest responses to a drug rehabilitation program that
I have seen in anyone of any age coming before this court.  It reflects that notwithstanding the extreme level of drug use to which you had escalated over quite a short period of time, and in which you were engaged at the time of this offending, at the age of 23 you had the strength of character and determination to apply yourself fully to a rehabilitation program in order to cease using these drugs and to address the causes of your offending.

71Dr Aaron Cunningham provided a psychological assessment of you last month.  Testing of your cognitive and intellectual functioning produced results showing significant differences with non-verbal reasoning, much better than verbal reasoning, and Dr Cunningham considered that this weakness in verbal reasoning would have caused difficulty for you coping with formal school as you had related your experience to him.  Overall your reasoning skills were in the low-average range, assessed as 86, but with much lower results for the processing speed index and the verbal comprehension index. 

72Dr Cunningham considered that you showed clinical elevations of anxiety and proneness to anger.  The anxiety was consistent with your current worry over imprisonment which you knew would be imminent.  You reported difficulties with managing emotions and anger.  You reported that since completing the MARP program in 2016 you have not relapsed into drug use but that your experience is that you feel more emotional while not using the drugs.

73Dr Cunningham was of the view that you do not present with a significant mental illness or cognitive impairment.  His opinion is that your offence behaviour occurred in the context of your drug abuse and association with drug abusing peers, and he considers that you were vulnerable to these peer associations in the context of your relative immaturity, and lower than average intellectual functioning, being an individual who was easily led and influenced by peers.

74There is nothing in Dr Cunningham's opinion that enlivens any legal principles requiring moderation or reduction in your sentence.  However matters that he raises about the contribution of your drug use, the influence of peer associations, and your vulnerability and immaturity arising in part from your childhood and school experiences, while not excuses, are relevant to place your offending in context, and are some explanation of how you became involved.

75I note that a reference from Brother Prout of the Olympic Village Exodus Community, who had known you and your family since your move to Heidelberg, supports these aspects of your personality and background, and aspects of your character that have been mentioned by Dr Cunningham.

76Dr Cunningham also provides information relevant to the strength of your prospects of rehabilitation.  You showed insight into the wrongfulness of your behaviour, and also into the risk factors of drug use and associating with drug-using peers.  You presented with positive indicators of rehabilitation in the form of your supportive and stable family, stable accommodation and access to employment, and that you had engaged with drug and alcohol counselling and remained abstinent.  In these circumstances he noted that your risk of re-offending would be dependent on you remaining abstinent from drug use and drug using peer associations.

77He records that he held an interview with your mother who described you having difficulty adjusting to life in Australia, and that you had struggled with comprehension and anger, and struggled with school.  She said that you have now changed for the better, and have ceased association with negative peers, and are working regularly.  She confirmed that you were stressing a lot and suffering anxiety due to the prospect of prison.  She also said you had been a great support for her with regard to her husband.

78Notwithstanding the letter from your father's doctor, the evidence about your father's grave state of health was not suggested by your counsel to be sufficient to attract what must be exceptional circumstances of family hardship to warrant a non-custodial sentence where a term of imprisonment would otherwise be required. It is a sad fact that it is not unusual for there to be very considerable hardship on an offender's family as a consequence of that person's imprisonment.  However, I do take into account that your concern about your father's health and its likely deterioration, and the impact of that on your mother and siblings, will weigh heavily and make your time in prison more burdensome for you. 

79I have also been told, without a specific time frame, that your younger sister has been in a very vulnerable state and took an overdose.  I am told that you have been very supportive of her through this, and are concerned about her too. 
Your concern about her ongoing situation, I accept, will also weigh on you during imprisonment and also make it more burdensome.

80As to your time in prison, I do take into account that although largely related to your anticipation of imprisonment, especially as you have some experience of it from the time you were on remand, while you continue to suffer anxiety about that that will also make the experience of imprisonment somewhat more burdensome for you than for someone not suffering from that anxiety.

81You were aged 22 at the time of the offending, and although that does not qualify you as a “young” offender, you are still to be regarded as youthful.  I am satisfied that your immaturity contributed to you becoming involved in the arrangement to assist to transfer drugs.  I also take into account that at your age, now still only 24, your ultimate rehabilitation is in the community's interests, as well of course as your own and your family's. 

82As you are not a first time offender and given the serious nature of reoffending, and the most important sentencing factor being general deterrence, your rehabilitation should not be the principal sentencing consideration.  Nevertheless, given the very strong signs of your progress in rehabilitation, lasting for over 18 months now,
I consider that more weight should be given in your sentence to that progress and encouraging its continuation and not crushing your motivation to continue it than would usually be the case.

83I was referred to the decision in the case of Akoka[7] in which it was confirmed that residential rehabilitation involving a restricted environment and quite rigorous conditions on daily activities, may properly be taken into account as showing not only an offender's commitment to rehabilitation but as having already imposed on the offender a period of restricted conduct. While not strictly the equivalent of pre-sentence detention, I am prepared to take into account that you engaged fulsomely in the MARP program for approximately 13 weeks, during which you complied with all restrictions on where you lived, submitted to drug screens and indeed attended and fulsomely participated in the program and abided by its conditions.

[7]Akoka v R [2017] VSCA 214.

84Your co-offender, Mr Elakkoumi, was sentenced by me on the single charge of attempting to traffic a commercial quantity of a controlled drug.  He was sentenced seven years' imprisonment with a non-parole period of three years and ten months.  I took into account the extent of his role, that he was a youthful offender, himself a drug user, and had a prior criminal history but not as serious as the present offending, and also that he had lost the opportunity for parole on a previous sentence. 

85Your role in the same offence was a little different, and as I have already said,
I find your role marginally less responsible but overall of similar culpability to his.  You are of similar ages, he being a little younger, but having more serious prior offences.  The greatest difference between the two of you is your significantly different attitude and demonstrated actions towards your own rehabilitation generally, and in particular in relation to rehabilitation from drug abuse.  He had refused to engage with earlier sentencing options offering treatment and rehabilitation, and had breached a suspended sentence, and although apparently having resolved more recently whilst undergoing a different prison sentence to try to cease drug use, you have shown yourself to be much further advanced in that regard. 

86When given the opportunity in June last year of bail for this offending you applied yourself, as I have said, to a 13 week rigorous residential drug rehabilitation program and have remained abstinent since.  You have also applied yourself to work and to taking responsibility within your family, showing maturity towards taking responsibility with your family and contributing to the community.

87For the Commonwealth offence, s.16A(1) of the Crimes Act (Cth) applies.
That requires the court to impose a sentence that is of a severity appropriate in all the circumstances of the offence. That principle includes that the sentence should not be any more severe than would adequately achieve all sentencing purposes and principles. The same principles apply to the State charges, and what is called the principle of parsimony specifically pursuant to s.5(3) of the Sentencing Act 1991 (Vic).

88I have already outlined the matters I consider of relevance but to formally summarise those for the Commonwealth charge, I have taken into account as relevant the matters set out in ss.16A(2)(a), (f), (g), (j), (ja), (k), (m), (n) and (p). 

89Prosecuting counsel submitted that some cumulation should be ordered as between the Commonwealth and State charges, although conceded that there should be some concurrency.  I consider that some but only a small degree of cumulation is necessary in this case to reflect that there was other offending by you than just the single Commonwealth offence, but taking into account that the other charges arise from what was found in your possession when you were arrested for the Commonwealth offence, and applying the principle of totality I must consider the total effective sentence in relation to the totality of the offending.

90It was conceded on your behalf that no sentence other than imprisonment would be appropriate in the current case.  Having regard to your age, the contribution of your youth and difficulties stemming from childhood experiences to your offending, having regard to the very strong signs of your rehabilitation, taking into account your pleas of guilty, your contrition, acceptance of responsibility for your offending and taking responsibility towards your family and the community, and taking into account all of the information provided,
I consider that this is a case where both head sentence and in particular the non-parole period should be set significantly lower than might otherwise have been the case. 

91I have also moderated both head sentence and non-parole period to take into account the near four months you spent in custody last year under Renzella principles, and have taken into account the 13 week residential program you completed as being a period of strict conditional confinement and supervision although not exactly the equivalent of that length of time had it been in prison. 

92Would you stand up now please, Mr Almandalawy.

93Rassoul Almandalawy, on the Commonwealth charge of attempting to traffic in a commercial quantity of MDMA you are convicted and sentenced to five years' imprisonment commencing today.  I fix a non-parole period on that sentence of two years.  I declare 39 days pre-sentence detention reckoned served and direct that that be recorded in court records.  It will be deducted administratively.

94Turning to the State offences on the indictment, the State indictment, on Charge 1 of possessing methylamphetamine you are convicted and sentenced to three months' imprisonment.  On Charge 2 of possession of unregistered handguns you are convicted and sentenced to eight months' imprisonment.  I direct no cumulation between these two charges so the total effective sentence on that indictment is eight months' imprisonment.

95On the summary charge of possession of a silencer without a permit you are convicted and sentenced to one month imprisonment.  I order no cumulation on that charge so it falls to be served concurrently with all other charges imposed today.

96I direct that two months of the total effective sentence on the State indictment be served cumulatively on the sentence imposed today on the Commonwealth charge.  The overall effective sentence is therefore five years and two months and the non-parole period, which is only set on the Commonwealth matter starting today, is of two years of which 39 days is reckoned served.

97I state that if you had not pleaded guilty but been found guilty of these charges after a trial, and that is an artificial exercise but one that at least the State legislation requires me to undertake and the Commonwealth asks me to undertake, on the Commonwealth charge I would have imposed a term of imprisonment of nine years with a non-parole period of six years to commence four months after the sentence on the State charges.

98Pursuant to s.6AAA of the Sentencing Act (Vic) I state that on the State charges on the indictment I would have imposed a total effective sentence of 21 months' imprisonment with a non-parole period of 15 months.

99Technically the summary charge would not have come to this court without a plea of guilty and in any event if it hypothetically had I would have ordered it to be served wholly concurrently with the charge for the handguns. 

100Now you can take a seat, Mr Almandalawy.  First I need to check with counsel, have I covered all matters that I need to?  I do not think there were ancillary orders sought?

101MR BARRY:  No.

102HER HONOUR:  If there were I've forgotten about them.  All right.

103MR BARRY:  No ancillary orders.

104HER HONOUR:  Now, the structure of the sentence - I'm always wary when combining Commonwealth and State sentences.

105MR BARRY:  Yes, Your Honour.

106HER HONOUR:  I am aware that had the State sentence required a State
non-parole period, to work it would have had to go first, but I believe that with State sentences not requiring a non-parole period there can simply be a degree of cumulation ordered on top of the Commonwealth sentence and it goes first with its non-parole period.  I stand to be corrected about that.  It takes me a lot of time to rethink that through but, Mr Barry, you're probably much more experienced with that interchange.  Do you want to take time to consider whether that works?  I don't want to get it technically wrong.

107MR BARRY:  Can I ask for just a few minutes, Your Honour?

108HER HONOUR:  Yes.

109MR BARRY:  I'm pretty sure Your Honour's right.  I just want to absolutely make sure.

110HER HONOUR:  I'll give you that chance ‑ ‑ ‑

111MR BARRY:  Thank you.

112HER HONOUR:  ‑ ‑ ‑ while the orders are - they're being prepared in the meantime but I will not sign them if it doesn’t work that way.  Ms Ellis, do you want to be heard at this stage?

113MS ELLIS:  No, Your Honour.

114HER HONOUR:  Or I can just - if you like I can leave the Bench for a few minutes and let you both think about the structure.

115MS ELLIS:  I'd be grateful if Your Honour would do that.

116HER HONOUR:  I think I've stated what I intend.

117MS ELLIS:  Yes, Your Honour.

118MR BARRY:  Yes, Your Honour.

119HER HONOUR:  I have - well I've given it thought but the structure is always complicated.  I'll ask that Mr Almandalawy remain in the court room.  That'll allow Ms Ellis to approach him if she wants to talk with him.  I'll just leave the Bench for a few minutes.

120MR BARRY:  Thank you, Your Honour.

121(Short adjournment.)

122HER HONOUR:  All right.

123MR BARRY:  As far as the Commonwealth's concerned, Your Honour, that's an appropriate way to deal with the matter.  Thank you.

124HER HONOUR:  All right, but you're appearing for both Commonwealth and State.  I want to know what - but you do understand technically that works to the result that I've said that ‑ ‑ ‑ 

125MR BARRY:  Yes.

126HIS HONOUR:  ‑ ‑ ‑ I am intending.

127MR BARRY:  It's appropriate, Your Honour.

128HER HONOUR:  Good thank you very much.  All right, you have nothing to raise?

129MS ELLIS:  I have nothing to add to that, Your Honour, no.

130HER HONOUR:  All right in that case I'll ask that Mr Almandalawy be taken into custody please.  I'll let your brother approach for a minute or two.  I'm sitting here in court but he can't have physical contact with you.

131VOICE (from body of the court):  No physical contact?

132HER HONOUR:  No.  Unless there's the handing over of a bag or something.  ---