Director of Public Prosecutions v Aychee

[2017] VCC 104

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00896

DIRECTOR OF PUBLIC PROSECUTIONS

v

KALED AYCHEE

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	25 January 2017
DATE OF SENTENCE:	20 February 2017
CASE MAY BE CITED AS:	DPP v Aychee
MEDIUM NEUTRAL CITATION:	[2017] VCC 104

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sharp	Office of Public Prosecutions
For the Accused	Mr A. Lewin	Turnbull Lawyers

HER HONOUR:

1Kaled Aychee, you have pleaded guilty to trafficking in both methylamphetamine and cannabis and possession of methylamphetamine.  The maximum penalties for each of these trafficking offences is 15 years and the possession in your circumstances, is one year.

2In June 2015, the police commenced a covert operation concerned with the drug trafficking activities of you and your co-accused, Hamdam El Kobaili.  Investigations revealed that you trafficked methylamphetamine from your home, which had been supplied to you by the Sydney based El Kobaili.

3Information obtained from Qantas concerning the travel of El Kobaili between Sydney and Melbourne revealed that between 25 September 2015 and 24 October 2015, El Kobaili travelled between those cities on eight occasions, and that he stayed for differing periods of time in Melbourne.

4On one of these occasions, on 12 October at approximately 1.26 pm, he travelled to your home by taxi from the airport.  He remained at your address for three minutes before returning to the airport at approximately 2 pm.

5On other occasions he attended your home from the airport in a chauffeur driven car.  Those trips were for the purpose of arranging for the delivery of methylamphetamine to you, for you to sell.

6Investigators also monitored your mobile phone.  You were in frequent contact with El Kobaili over the relevant period, discussing or organising meetings and the details three times.  There were calls on the 24 October 2015 between you, when you discussed the potential sale of methylamphetamine and cannabis.

7On 29 October 2015, El Kobaili was intercepted by police at Tullamarine after he had arrived on a flight from Sydney.  El Kobaili was searched and a clear snap lock bag containing a white crystal substance was located wrapped inside a sock in his bag.  This substance was methylamphetamine and weighed 276.5 grams, with a purity of 82 per cent.  This amounted to 226.73 grams of pure methylamphetamine.

8I note that under Part 3 of the relevant act, a commercial quantity of this drug is 100 grams.  It is accepted by the prosecution that El Kobaili was to bring you an undetermined amount of methylamphetamine, but an amount that was in at least in excess of the trafficable amount being 3 grams.

9Your counsel conceded this was serious offending, however, remarked that the prosecution was not in a position to prove that all the drugs found with El Kobaili were intended to be provided to you.  That is, not the whole amount of the 226.73 grams of methylamphetamine.

10Later that day, police attended your home and conducted a search.  You were arrested.  As a result of the search, investigators located a bungalow at the house, set up like a home office.  A desk in the office contained scales, deal bags and a book containing prices and weights relating to drug transactions.

11Investigators also located a black leather pouch, which had two snap lock bags, each containing a white crystal substance.  The first bag contained 16.2 grams of methylamphetamine, with a purity of 84 per cent – amounting to 13.6 grams of pure methylamphetamine.  The second bag contained .82 grams of methylamphetamine, with a purity of 39 per cent, amounting to .32 grams of pure methylamphetamine.  That is Charge 3.

12Also, discovered in the bungalow were differing amounts of cannabis as follows:  In the ensuite, 439.6 grams; in the oven, four plastic bags contained a total amount of 1.78 kilos; in the oven, another clear plastic bag was found, in which there was a further nine snap lock bags, in total weighing 243.5 grams and in the cupboard of the office area, a blue Irwin bag was found, that in turn, had within it six plastic bags that contained 2.68 kilos of cannabis.

13Thus, the total amount of cannabis found by police was 5.14 kilos.  That is the amount on the subject of Charge 2.

14A trafficable amount under the Act is 250 grams and a commercial quantity is 25 kilograms.

15There were some aggravating features of your offending:

(1)  A comprehensive surveillance system was operating at your house and the review of the footage revealed you frequently attending the bungalow and meeting drug customers.

(2)  Additionally, a significant number of telephone intercepts had you speaking  with unknown parties in relation to trafficking of drugs.

16You were arrested on 29 October 2015 and remanded in custody.  You were released on bail on 16 February 2016.

17Prior to the committal hearing proceeding on 20 May 2016, you indicated an intention to plead guilty and the matter proceeded by way of straight hand-up brief.

18You were arraigned in this court on 11 October 2016 and your bail was revoked.

19You have therefore spent in total 243 days in custody.

20You were born on 24 July 1983 and are currently 33 years.  You and your wife are of Lebanese decent and you reside with her and your three children aged nine, four and two in Meadow Heights.  Family members, including your wife, were in court to support you.

21You came to Australia in 2007 and your wife is an Australian citizen.

22I was informed that your immediate family reside in Lebanon in a troubled region near the Syrian border.  The location of your immediate family is of relevance to the burden you face in respect of this sentence, with the real prospect of deportation at the conclusion of any period you serve in custody, a matter I will address later in these reasons.

23You are fluent speaking in both Arabic and English.

24At the time of this offending, you were employed as a bobcat excavator driver for First Class Demolition and asbestos removal in Campbellfield.  I was informed your capacity for work was reduced given a foot injury that you incurred in an accident, and that you are waiting for elective surgery.

25I received a number of personal or character references, Exhibit C and E.  I take all of that material into account.

26It is apparent that you are a good family man and have contributed voluntarily to sporting and other community activities involving your children and others.  Your wife remains supportive of you whilst you have been in custody and has regular contact with you.

27I was provided with a report from forensic psychologist, Dr Aaron Cunningham, dated 7 October 2016, Exhibit 1.

28You reported to Dr Cunningham that you commenced using methylamphetamine approximately four years ago.  In combination with this drug, you were also using alcohol.  You told Dr Cunningham that your usage was the means for you to cope with financial pressures and problems regarding your limited employment.

29This history is consistent with your prior matters relating to drug use and possession.  Dr Cunningham is of the opinion that you have no indication of mental illness or intellectual disability.  Your drug abuse is seen as the main contributor to this offending.

30You have a number of relevant prior convictions in 2011 and 2014 relating to drugs, but have also some prior to driving offences.

31You have previously successfully completed a community based order in 2011.  However, these matters are a step up in seriousness in your offending.  Specific deterrence is a relevant sentencing consideration in your circumstances.

32As previously indicated, you were arrested on 29 October 2015 and released on bail on 17 February 2016.  You did not commit any further offences during the period whilst you were on bail and in the community.  Your bail was revoked on 11 October 2016 and you have been in custody since that date.

33As to your current immigration status, I was informed that whilst you were on bail for these matters, you failed to lodge an application for renewal for your spouse visa.  You were placed in immigration detention once that status was discovered.  That is, that you were in Australia at that time without a current visa.

34You had a period in the community before being detained, then after you were arraigned in this court, you were placed in custody.  Material was relied upon that the only outstanding matter in respect of your current visa application is the character test.  See Exhibit 2.

35Section 501 of the Migration Act (Commonwealth) provides in effect that if you are sentenced to a term of imprisonment of 12 months or more, then you will inevitably fail the character test pursuant to that section.

36You are therefore liable to immediate deportation, unless you can pass the character test, which is to be considered as part of your application for a new visa.

37Reference was made by your counsel to Nguyen v The Queen [2016] VSCA 198 and the authorities referred to therein. It was submitted your immigration situation was analogous to others who had an existing visa at the time of sentence, given that you previously were on a spousal visa. The reason you were not on a visa at the time of sentence was not because you were an illegal as a consequence of you never having a legitimate status, rather it was because of your failure to renew your visa and it had expired.

38As outlined in Nguyen at 35:

"The nature of expectation, an offender may enjoy of remaining in Australia, where the offender resides in Australia legally under a visa at the time of sentencing, but whose visa is liable to be cancelled and who lives with the uncertainty of not knowing whether an application for revocation of the decision to cancel the visa will succeed does appear qualitatively different from that of an offender who is not lawfully resident in Australia because his or her visa has expired.  In the circumstance, the cancellation of an existing visa could be seen to be attended by a sense of real loss or of the prospect of settling in Australia, which the offender had previously secured.  In the later circumstance, the offender has not lost an existing right but only the possibility of securing a visa."

39Your counsel argued, and the prosecution conceded, that your circumstances were analogous to that of a person who resided in Australia and had settled here with family and property, rather than a person who was not lawfully resident in Australia at any stage.

40I accept therefore that the prospect of your deportation is a relevant matter that should be taken into account when considering your personal circumstances, and accept that prison will be more burdensome for you, given the uncertainty of your application and the real risk of deportation.

41As noted previously, the consequences of deportation, given the situation where your family resides in Lebanon, is significant.

42I take into account your plea of guilty.  You have pleaded at the earliest opportunity and there is a significant utilitarian benefit in the plea, saving the community the cost and inconvenience of a trial and avoiding the need for witnesses to give evidence.  Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice.

43Your counsel submitted that your rehabilitation prospects were good and relied on the following:  Dr Cunningham's view regarding your positive prospects with protective factors such as the family support and constellation, together with the expectation of you gaining full time employment; (2) your period of time in custody when you have been drug free and (3), that you were not involved with any offending when you were on bail and in the community.

44It was submitted that you had undergone a change in attitude since being incarcerated and also, given the threat to the security of your life in this country, which you have now established with your wife and children.

45I accept that you have good rehabilitation prospects, but I am somewhat cautious given your drug issues.

46You had a relatively sophisticated set up, running your business with video security and home office.  There was a significant amount of activity detected and it related to two different types of drugs.

47On any scale, trafficking is a serious offence, given the societal problems that any drugs cause.  Trafficking of any drugs affects the health and lives of many in the community, and the impact of the availability of illicit substances on the community cannot be underestimated.

48Principles of general deterrence are of importance to this kind of offending.  Those who engage in the business of trafficking drugs should be aware that if caught, they will be punished.  The community demands denunciation and just punishment for this kind of offending.

49The prosecution submitted that a term of imprisonment was warranted and that you should be required to serve a period additional to that which you have already served.  The prosecution conceded that a sentence of a term of imprisonment, with a community correction order to be undertaken at the end of that term, was within the range of sentencing options available to me.

50Your counsel conceded that a term of imprisonment was warranted but submitted that the period imposed should be less than 12 months.  Your counsel relied upon the combination of factors including an early plea of guilty, your family circumstances, the real risk of deportation and the nature of the offending in this case, which did not, it was submitted, require a longer sentence.

51I had you assessed by the Office of Corrections who reported you as being a medium risk of reoffending.  You were deemed suitable to undertake a community correction order with conditions regarding your drug treatment, rehabilitation and also supervision.  Given your foot injury, I do not require you to perform any community work, recognising the punitive element of the sentence imposed relates to your time in custody.

52If you could stand up please, Mr Aychee.

53In respect of Count 1, trafficking in methylamphetamine, you are convicted and sentenced to a period of imprisonment of eight months.

54OFFENDER:  Yes.

55HER HONOUR:  In respect of trafficking cannabis, Charge 2, you are convicted and sentenced to a period of imprisonment of eight months and in respect of the possession of methyl amphetamine, Charge 3, you are convicted and sentenced to a period of seven days' imprisonment.

56OFFENDER:  Yes.

57HER HONOUR:  Two months of the sentence imposed in respect of
Charge 2 will be cumulative in respect of the sentence imposed on Charge 1, giving a total effect of sentence of ten months.  You will be required at the expiration of that sentence to undertake a community correction order for a period of two years.  Within that order, there will be a condition regarding alcohol and drug treatment and supervision.

58Be warned, Mr Aychee, that if you do not comply with the conditions in the order, particularly in respect of the drug and alcohol treatment and rehabilitation, I will have no hesitation in having you sent back into custody.  I am somewhat cautious of your prospects because you have had such issues with drugs and this was very serious offending.

59Now, the Crown also applied for a s.464 order and a disposal order.  I have got those there signed.

60If you had not pleaded guilty, Mr Aychee, pursuant to s.6AAA of the Sentencing Act, I would have imposed a sentence of imprisonment of 18 months and I declare presentence detention of 243 days.  Are there any other matters?

61MR LEWIN:  There is one other matter, Your Honour, in relation to a pending application for costs.  It is reserved on 14 December.  I don't believe my friend has a position yet in response to that so we are not better informed but the application is still there and the reservation of cost has not been made.

62HER HONOUR:  What are we going to do about it?

63MR SHARP:  Your Honour, unfortunately my instructing solicitor is not present in court.  I have just spoken to him and it is a matter that he overlooked in briefing.  I would ask Your Honour that that cost application be adjourned to a date to be fixed, Your Honour, to allow my learned friend's instructing solicitor and mine to engage in discussion and try and resolve it.

64HER HONOUR:  Yes, I think you should try and resolve it.  I do remember what happened and I can say that I am pretty sympathetic to the defence application.

65MR SHARP:  I will make sure my instructing solicitor is aware of that, Your Honour.

66HER HONOUR:  Thank you.  It was just a mix up but I came on the Bench, thinking that all the parties knew that the matter was going to be adjourned and that was clearly not the case.

67MR SHARP:  Yes, Your Honour.  I will pass that on.

68HER HONOUR:  Thank you.

69MR LEWIN:  Thank you, Your Honour.

70HER HONOUR:  All right.  Now, could you take the order down for Mr Aychee to sign or does he do that later?  No, I will come back at 10.30 and we can do it then.  All right.  Thanks.

71(Short adjournment.)

72Stand up please, Mr Aychee, I thank you.  Mr Aychee, if you just listen to my associate, she will now read out to you the terms of the order that will come into effect when you are released from custody. 

73ASSOCIATE:  (Indistinct) must attend the Broadmeadows Community Corrections Services at 25-27 Dimboola Road in Bulla Road, Broadmeadows within two clear working days after (indistinct) community corrections officer, you must not commit another offence with which you could be imprisoned during the time that the order is in force.  You must comply with any of the (indistinct) must report to and receive visits from (indistinct).  You must report to Community Corrections Centre within two clear working days of the order starting (indistinct) must not leave Victoria without first getting permission to do so from (indistinct), must obey all lawful instructions from and directions of (indistinct).  (Indistinct) under the supervision of a Community Corrections officer for a period of two years.  (Indistinct) rehabilitation, you must undergo assessment and treatment including testing for drug use or dependency (indistinct) and must undergo assessment treatment including testing for alcohol use or (indistinct).

74HER HONOUR:  Thank you.  Yes please, thank you.  Thank you, I will just sign this order.  Thank you, you can remove Mr Aychee please.

75OFFENDER:  Thanks, Your Honour.

76HER HONOUR:  Thank you, the parties are excused.

77MR SHARP:  As Your Honour pleases.

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