Director of Public Prosecutions v Assafiri

[2014] VCC 857

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00159

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAIM ASSAFIRI

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2014
DATE OF SENTENCE:	28 May 2014
CASE MAY BE CITED AS:	DPP v Assafiri
MEDIUM NEUTRAL CITATION:	[2014] VCC 857

REASONS FOR SENTENCE
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Subject: Criminal sentencing - trafficking in a drug of dependence - having in one's possession or control an explosive substance for an unlawful object - handling stolen goods.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper	Craig Hyland, Solicitor for the Office of Public Prosecutions
For the Accused	Mr N. Tehan	Slades & Parsons

HER HONOUR: 

1Naim Assafiri, you have pleaded guilty before me on indictment to one charge of having in one's possession or control an explosive substance for an unlawful object, one charge of trafficking in a drug of dependence, one charge of possession of a drug of dependence, and that relates to methyl-amphetamines in relation to both Charges 2 and 3; and one charge of handling stolen goods. 

2In addition you have pleaded guilty to four charges that have been transferred pursuant to s.145 of the Criminal Procedure Act 2009 and that relates to one charge of dealing with property suspected of being the proceeds of crime, the gold coloured men's Rolex watch, Charge 22, having in your possession cartridge ammunition that you did not properly store; Charge 23, being a non-prohibitive person possessing an imitation firearm; Charge 24, which is having body armour without an exemption, or certificate of approval under the Control of Weapons Act 1990, namely a ballistic vest.

3On 11 July 2013 you were arrested when police executed a search warrant at the place where you were then living, that is at Unit 2, 32 Sullivan Street, Hadfield. At that time they located one pipe bomb, which is the subject of Charge 1, possess an explosive, one white Samsung Galaxy mobile telephone, one snap lock bag containing white crystals, and that is Charge 3, possess drug of dependence, methyl-amphetamine, one box of testosterone sachet, that is Charge 4; possess drug of dependence, one ‘Acer Aspire One’ notebook computer, Charge 5; handling stolen goods, one Rolex wrist watch, which is one of the summary charges and six shot gun cartridges. 

4At the time of your arrest police arranged for your Samsung Galaxy mobile phone to be examined and that revealed a number of text messages that form the basis for trafficking drug of dependence on the one day that is alleged, which is on 9 July 2013.  The messages on the phone that were received by you included: "Listen, just give me a point and take the money please, I'm really sick," and those sent by you included the responses: "How much are you after?  What are you after? And "Hey, do you want gear so I can put my money plus yours" that the formed the basis for Charge 2, the trafficking methamphetamine on that one day.  The photographs on the telephone showed you holding a silver coloured imitation sawn‑off shot gun and wearing a blue ballistic vest.  That forms the basis for Charges 23 and 24 of the summary matters that were uplifted. 

5These charges are serious and the maximum penalty that is prescribed by law are in respect to Charge 1, that is a level 6 matter, five years' imprisonment; Charge 2, level 14, 15 years' imprisonment; Charge 3, level 6, five years' imprisonment; Charge 4, level 6, five years' imprisonment; and Charge 5, level 4, 15 years' imprisonment.  Summary matters, Charge 21 is a level 7 offence which a two years' imprisonment; Charge 22, penalty is six penalty units or
12 months' imprisonment; and Charges 23 and 24, maximum penalty is
240 penalty units or two years' imprisonment. 

6I note on the date of your arrest, you were taken to Fawkner Police Station where you participated in a record of interview during which you admitted knowledge of the pipe bomb, the watch, the testosterone and the ammunition, but stated that a friend had left them at your house and you admitted ownership of the methamphetamine. 

7Later investigations traced the Acer Aspire One notebook computer to a residential burglary in Lalor on 25 June 2013. 

8I note that you were aged 25 at the time of the offending and you are now 26.  You did not have any prior criminal history at the time of commission of the these offences but there are some subsequent matters that are yet to be dealt with at the Broadmeadows Magistrates' Court.  I understand that that hearing is on the 18 June 2014.  It relates to driving offences and possession of ammunition and possess methyl-amphetamine. 

9I note that this matter proceeded to a committal hearing at which hearing more serious charges that had been laid against you were struck out.  You then elected on the remaining charges to have the matters dealt with in this court notwithstanding that they would have been dealt with by the Magistrates' Court.  You entered a plea of guilty at an early stage.

10The context to your offending was that you were using methamphetamines.  Your use had spiraled out of control following the breakdown of your second marriage and other psychological factors. 

11You will be sentenced on the basis that the trafficking is confined to one day only.  I accept that you were dealing at street level.  These crimes, nonetheless, are still serious and that is evidenced by the various penalties and in particular, the penalty for trafficking in a drug of dependence.

12Whilst I am prepared to accept that you have some degree of cognitive impairment that has been confirmed through neuropsychological testing conducted at the request of your solicitor by Ms Jane Lofthouse, I am not satisfied that the principles of Verdins in this case have been enlivened.  I am satisfied that cognitive impairment goes to some extent to explain your lack of judgment concerning the commission of these offences, but the precise degree of your impairment is not known.

13Both Ms Carla Lechner, the forensic psychologist who examined you and
Ms Jane Lofthouse, a neuropsychologist, have only interviewed you on the one occasion and did not have access to any secondary evidence such as brain scans that may have confirmed your assertions.

14I consider, having regard to the objective features of your offending as outlined in the plea opening, that you were aware of what you were doing and, therefore, I am not prepared to reduce your sentence having regard to the principles outlined in Verdins.

15You are a relatively young man, aged 26. You have shown a level of immaturity in respect to the involvement with respect to this offending, having in your possession items such as an explosive device, namely the pipe bomb, the ballistics vest and imitation guns, and also involving yourself in trafficking amphetamines. They are serious breaches of the law, and there is a need to emphasize both general and specific deterrence in this sentence.

16I have, however, had regard to the matters put in mitigation, and I accept that you entered a plea of guilty at an early stage.  By your plea you spared the State the cost and the inconvenience of a trial, and you have thereby facilitated justice. 

17I further accept that you are remorseful.  This is evidenced by the comments that you made to Ms Lechner when being examined by her, and is also reflected in your Uncle Walid El-Asmar's letter to the court.

18As discussed during the plea hearing, I did not accept that all of the limbs of Verdins had been enlivened.  I find no causal connection between your current symptoms of post-traumatic stress disorder and major depression and cognitive impairment in the commission of these offences, so as to reduce your moral culpability or to your reduce your need to emphasize both general and specific deterrence.

19As I said earlier, both authors relied on self-reporting by you.  There was no independent verification of many of the facts, such as the investigations for brain trauma following the assault in 2011, and a further incident in 2012, when you self-harmed by banging your head against a concrete wall, and then the assault in 2013 by several prisoners, when it was said that you lost consciousness and had treatment at St Vincent's Hospital.  No efforts were made to obtain the brain scan or any treatment records from either the Austin Hospital or St Vincent's Hospital to verify your account of injury.

20You self-report to Ms Lechner that you used Ice on a daily basis throughout 2013, and that pattern continued until your recent incarceration.  Your heavy drug use may well explain your involvement in this offending.

21Further, I note Ms Lechner, herself, considered that you are capable of reflecting on the impact of your behavior and the impact that it has had on both yourself and others, although more recently your judgment and decision-making has been adversely affected by emotional factors and your drug use.  Therefore, there is a need in sentencing you, to emphasize the importance of both general and specific deterrence.  That is, I need to impose a sentence that is sufficient to deter you from further offending and others.  I must also, on behalf of the community, formally say that what you did was wrong.

22Whilst Ms Lechner states you show signs of post-traumatic stress disorder and major depression, you are not currently being treated for those problems.  She does, however, recommend treatment, including medical review to determine if anti-depressants are indicated and she also recommends supportive psychotherapy to assist with mood management.  In all other respects, I have had regard to the findings of both Ms Lechner and
Ms Lofthouse in formulating the appropriate sentence.

23I have taken into account the reference material from your uncle and aunt.  Your uncle is Walid Samir El-Asmar, and your aunt is Siham El-Asmar.  And I have also taken into account the reference from your employer, Haythem Kabbara.  The contents of those references confirm that you have, in the past, demonstrated an ability to work, that you have an appropriate work ethic, and that you work effectively.

24Your uncle employed you for two years fulltime as a tyre-fitter, and at that time you displayed a great enthusiasm for work.  You were reliable, trustworthy and honest, and you demonstrated professionalism, dedication and punctuality in your work.  You showed appropriate attitudes to your work, and to your fellow employees and stakeholders.

25Mr Kabbara states he employed you in early 2010 and you progressed from assistant to a skilled glass fitter, and during that time you exhibited many great skills and behavior.  You were able to supervise and oversee fellow employees, you were quick in your ability to learn and to apply your skills and knowledge in the work environment. He says that you were an asset to his organization.

26He said that you were able to maintain a high level of respect with respect to customers, whilst maintaining a credible image and a goal orientated vision for the company. 

27I accept that you are now demonstrating appropriate remorse and that has been evidenced in the reference material from your aunt and uncle.

28From what I gather, prior to the commission of this offending, you were held in high regard. You were a young a man with a lot of potential to make a positive contribution to our community.  It seems to me that the effects of your use of Ice has been the real catalyst for your involvement in this offending.

29Since your incarceration you have completed two courses, one in Relapse Prevention and one in Workplace Safety, and you have also successfully re-established your relationship with your aunt and uncle who are and remain supportive of you. Both of them have expressed, in writing to me, that they are prepared to allow you to live with their family upon your release.

30You have detoxed in prison, and overall I consider that you now have good prospects of rehabilitation.  That, however, is contingent on you being able to remain abstinent from using drugs.

31I note that you have received notification from a delegate of the Minister for Immigration and Border Protection that says, as you are an unlawful non-citizen, at the time you would otherwise be entitled to be released from custody you will be removed from Australia, and from the time you would otherwise be entitled to be released from custody of Corrections Victoria, you will be kept in immigration detention until your removal or deportation from Australia.

32I have taken into account that whilst in prison you have had to cope with the very real prospect that you will be deported to Lebanon upon expiration of the period of imprisonment.  I note that you have requested a reassessment of your immigration status.  That is still pending.  Nonetheless, the prospect of deportation has made the burden of imprisonment greater for you than for somebody who does not face that risk.

33Finally, in sentencing you I must impose a just sentence.  I have taken into account your relative youth, your lack of prior convictions, the early plea of guilty, your demonstrated remorse, and also the difficulties you have had serving the pre-sentence detention having regard to the aspect of the deportation hanging over your head.  I have also had regard to your personal history and circumstances that is set out in full in the reports of
Ms Carla Lechner and Ms Lofthouse.  I do not propose to go through those in any great detail, other than to note that I have read those materials and I have taken them into account.

34In sentencing you I make the following orders. Could you please stand. 

35On Charge 1, possess explosive substance, convicted and sentenced to three months imprisonment.  Charge 2, traffic drug of dependence methyl-amphetamine, 169 days imprisonment, Charge 3, possess drug of dependence methyl-amphetamine, convicted and sentenced to one months imprisonment, Charge 4 possess drug of dependent, testosterone, convicted and sentenced to one month imprisonment, and Charge 5, retention of stolen goods, convicted and sentenced to three months imprisonment.

36Essentially I consider that this is a course of conduct that happened in a close period of time, so all of those sentences are to be served concurrently.

37In relation to the summary charges, Charge 21, retention of stolen goods, convicted and sentenced to two months, Charge 22, failure to properly store ammunition, convicted and sentenced to 14 days, Charge 23, non- prohibited person in possession of an imitation firearm, convicted and sentenced to one month imprisonment, and Charge 24, possess ballistics vest, convicted and sentenced to one month.  Those sentences are also to run concurrently with the sentence that I have announced in respect to the indictment.

38I declare 169 days pre-sentence detention pursuant to s.6AAA of the Sentencing Act 1990.  But for the plea of guilty I would have imposed a sentence of nine months' imprisonment.

39I make the order for the retention of the forensic sample, having regard to the seriousness of the circumstances of the offending, and I consider the orders warranted.  I note the orders by consent, and I consider the order is in the public interest and I finally make the disposal order sought and the forfeiture order sought.

40MS HARPER:  As Your Honour pleases.

41MR TEHAN:  As Your Honour pleases.

42HER HONOUR:  So effectively that is time served and I suppose the corrections authorities will now arrange for his release to the Department of Immigration and Border Control.

43MR TEHAN:  Yes Your Honour.

44HER HONOUR:  Which has now got a new name.

45MS HARPER:  And they have been notified of that Your Honour, yes.

46HER HONOUR:  Sorry?

47MS HARPER:  They have been notified.

48HER HONOUR:  Oh, good.

49MS HARPER:  So that should be in place.  Well the informant is and she has notified them this morning.

50HER HONOUR:  All right, so then that leaves the matters in Broadmeadows to be dealt with.

51MR TEHAN:  Yes Your Honour.

52HER HONOUR:  Did you want to spend some time just talking to your client here or do you wish to go downstairs?

53MR TEHAN:  I'm happy to go downstairs and see him Your Honour.

54HER HONOUR:  All right, well thank you, we can adjourn.

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