Director of Public Prosecutions v Belhaj
[2017] VCC 1619
•8 November 2017
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00494
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED BELHAJ |
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JUDGE: | HIS HONOUR JUDGE MEREDITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September 2017 | |
DATE OF SENTENCE: | 8 November 2017 | |
CASE MAY BE CITED AS: | DPP v Belhaj | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1619 | |
REASONS FOR SENTENCE
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Subject: Traffick methylamphetamine, manufacture. One day only,
Catchwords: disparity with co-offenders
Legislation Cited:
Cases Cited:
Sentence: 2 ½ years with 15 month minimum, 123g gross, 42g pure
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Goodenough | Office of Public Prosecutions |
| For the Accused | Ms D Caruso | Patrick Dwyer Lawyers |
HIS HONOUR:
1 Mr Belhaj, you have pleaded guilty before me to one charge of having trafficked in a drug of dependence, namely methylamphetamine, on or about 11 March 2015. The maximum penalty for this offence is 15 years’ imprisonment.
2 The prosecution case is that you were part of a joint criminal enterprise which engaged in the manufacture of this substance.
3 Your matter was originally listed before me for trial on Monday, 25 September 2017 and, after two days of legal argument concerning the admissibility of telephone intercepts, you pleaded guilty on 27 September before me to a reduced indictment.
4 On your trial, in addition to the charge to which you have pleaded guilty, you were facing three additional charges of possessing precursor chemicals, namely pseudoephedrine, iodine and hypophosphorous acid. These charges are no longer before me.
5 The circumstances of your offending were outlined in a prosecution summary which has been tendered in these proceedings. Having regard to this fact, I will summarise them fairly briefly.
6 At approximately 5 pm on 11 March 2015, police raided premises in Melton West. The premises in question were a small bungalow in a quiet semi-rural location on the outskirts of suburban Melbourne. Found at the premises at the time of the raid were yourself, a Mr Barkho, and a Mr Peterson. A search of the premises revealed several different quantities of methylamphetamine, which included quantities found in dishes, a jug, a container in a hallway cupboard, filter papers, and other areas, which totalled 123 grams in mixture and approximately 42 grams pure of this drug. The bungalow contained all of the equipment necessary to enable the manufacture of this drug, which included solvents, chemicals, heating apparatus and glassware. In short, the bungalow contained a clandestine drug manufacturing laboratory.
7 A trafficable quantity of methylamphetamine is constituted by three grams of the drug in mixture form. A commercial quantity of this substance is constituted by 500 grams in mixture form or 100 grams in pure form. Whilst in the scheme of things the quantity, whose manufacture you are charged with, is not at the higher end of the range, the fact that you were engaged in the manufacture of this substance in circumstances where you were found in a manufacturing laboratory is of concern.
8 Located in the bungalow were substances which could have been employed in a further manufacturing process. Whilst you are no longer charged with possessing the relevant precursors, the fact that significant quantities of pseudoephedrine, in the form of Dimetapp tablets and Sudafed were located, in combination with quantities of iodine, and hypophosphorous acid, suggests that there was the capacity for further production of methylamphetamine.
9 Mr Ian Neely, a chemist, opines that the quantity of pseudoephedrine located was capable of producing between 63 and 92 grams of methylamphetamine. This supports the contention that it was anticipated that the enterprise would be an ongoing one with the capacity for further production. I make it plain however, that I am not entitled to nor do I sentence you for involvement beyond the day of the police raid. It is apparent however, that having regard to the nature of the equipment and substances found you had involved yourself in a relatively sophisticated enterprise. When interviewed by police you declined to comment, as is your right, on the allegations that had been put to you.
10
The role which you pursued in the joint criminal enterprise is of some concern. Other members of the joint criminal enterprise are said to be Mr Barkho,
Mr Peterson, and Mr Dislakis. You performed a significant role in the manufacturing enterprise, in that you financed Mr Peterson. You are described as being “heavily involved and central’ in the operation of the joint criminal enterprise. Mr Peterson was sentenced on the basis that he was the person engaged to be “hands on” in the relevant manufacture of the methylamphetamine or, as is colloquially known, “the cook”.
11 Mr Peterson and Mr Dislakis have been sentenced by His Honour Judge Gamble of this Court and I shall make further reference to His Honour’s sentencing comments in due course. Mr Dislakis was sentenced on the basis that he sourced pseudoephedrine and engaged in trafficking of methylamphetamine over the charged period.
12 Intercepted phone calls in conjunction with banking records support the inference that you can be heard trafficking in an unidentified drug and laundering money through the bank accounts of intermediaries. I was told by your counsel during preliminary argument, that originally in the Magistrates Court you faced charges referable to this conduct. In this court these charges have not been pursued. No doubt there is good reason for this, and I am not critical of prosecuting authorities in any way for this. This means however that I cannot impose a sentence on you referable to other criminal conduct which may be inferred from the intercepted telephone product.
13 So far as your personal circumstances are concerned you are now 33 years of age. Whilst your plea of guilty came after two days of legal argument, it was before my ruling on the admissibility of the intercepted materials, and notwithstanding that comparatively speaking it was late in the piece, you are entitled to a discount of your sentence for having facilitated the course of justice. In addition I accept that your plea demonstrates some remorse on your part.
14 You have a number of prior convictions. In the main these are for offences of dishonesty. The most significant sentence of imprisonment imposed on you previously has been a term of five months for offences of handling and burglary. You were placed on a CCO of five years duration by His Honour Judge McInerney of this court in August of 2012. This was for offences of intentionally causing injury and affray. The offending on which I must sentence you occurred during the currency of this order. You have outstanding matters currently listed in the Magistrates Court of burglary. The prosecution of you for these matters is at an early stage and I am not able on the limited information available to me able to draw any adverse conclusions regarding these matters, nor was I asked to.
15 You are currently aged 33. You were born in Morocco in October 1984, and immigrated with your family to Australia when you were four or five years old. You are the second youngest of seven children, and you have three brothers and three sisters.
16 Your family grew up living in public housing estates in Clifton Hill and Reservoir, and you reported to psychologist Dr Gina Cidoni that your family life during that time was marred by violence perpetrated by your father against your mother, and also yourself. You were made to leave home several times during your teenage years due to your objections to your father’s treatment of your mother, and during those times you couch surfed with friends. You did not have the benefit of an appropriate role model so far as your father was concerned, and yours was not an environment where it was easy for you to continue your education and I have taken this into account
17 Your father has now returned to Morocco, having done so in around 2011, and the rest of your family remain in Australia. You are comparatively close to the other members of your family, including your mother with whom you lived prior to entering custody. You have been in a relationship with your fiancé since around 2011, and I am told that she continues to support you through these proceedings. She works in her family’s business and has not been convicted of any offences I am told.
18 So far as your education is concerned, you successfully completed Year 10 at Thomastown Secondary College. You described yourself as an average student. You report having undertaken several courses to further your education since finishing high school, including completing two and a half years of a plumbing apprenticeship, a personal training course, and a Certificate III and IV in health and fitness.
19 Your work history is solid, and includes stints working with your brothers in their roller shutter business; working as an apprentice plumber for two and a half years; working for one and a half years at a leather manufacturer; working in the health and fitness/personal training industry for a year; and working via a job agency for a hardware store.
20 In May 2014 you sustained serious injuries to your lower legs as a result of a car bomb, and required hospitalisation for three and a half months following the incident. Since then you have been unable to work, and were in receipt of a Disability Support Pension. Prior to the car bombing incident you were very physically active and attended the gym six days a week and played soccer. As a result of your injuries you are no longer able to pursue these activities.
21 During your extended recovery you have been subject to a number of surgical procedures and rehabilitative measures, and reports indicate that you continue to suffer pain and nerve damage in your lower legs, and have some difficulties with your mobility. Since your remand you are medicated with pain relief, however, should pain occur at unexpected times I accept that your status as an inmate raises certain practical difficulties for you in accessing pain relief, for example at night.
22 In addition you are diagnosed as suffering from a chronic post-traumatic stress disorder, and anxiety and depression. Your post-traumatic stress disorder can manifest itself in the form of flashbacks and startling at loud and sudden noises. I accept that these circumstances combine to make your incarceration more difficult than for another who does not suffer from the combined effects of these difficulties, and I have sensibly taken these matters into account in your favour.
23 It was in the context of your physical and psychological injury that you began using drugs, namely methylamphetamine, and developed a gambling problem. You reported to Dr Gina Cidoni that during your three and a half month hospital stay you were placed on a strong painkiller medication regime, and that following your discharge you commenced smoking ICE almost immediately. Prior to then you had not reported using drugs. You report that methylamphetamine helped you forget what had happened to you, and eased your symptoms.
24 So far as your gambling is concerned, you report that you commenced gambling while in hospital, using online sports and pokies. After your release from hospital you gambled at the TAB and at the casino.
25 Your drug usage and gambling contextualise your involvement in the offending on which I must sentence you. They do not however excuse your behaviour. It was not suggested on the plea that your anticipated gain would be limited, for example, solely to securing a further supply of methylamphetamine. There is nothing to suggest that you were other than fully conscious of your criminality and had determined to resolve your difficulties by the commission of serious criminal conduct.
26 Whilst it is the case that each of Mr Peterson and Mr Barkho were integral to the success of the manufacturing venture, your offending was also central to the success of the venture, albeit that you are charged with involvement of only one day. In my view, your background of gambling addiction and drug use is of little effect in reducing your moral culpability in the circumstances of your case. It does have a greater role to play for sentencing purposes, in my view, in areas such as assessing your rehabilitative prospects.
27 So far as your rehabilitative prospects are concerned I am cautiously optimistic concerning them. On the positive side, you have no drug related prior convictions, you have the support of a long term girlfriend who I am told is law abiding, as well as broader support from your family, and your last offending prior to this matter occurred a number of years previously. Balanced against this however is what I have been told is an entrenched pattern of methylamphetamine usage and a gambling problem. These issues, aside from your remand and forced abstinence, remain largely undealt with. In these circumstances, provided you determine to sever your connections with the drug world, I am of the view that your prospects give rise for some optimism.
28 In sentencing you, I have had regard to the important sentencing principle of parity. Equal justice requires identity of outcomes in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect. Disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each played in the relevant criminal conduct or enterprise.
29 Mr Peterson, on the charge of trafficking received a term of four years imprisonment, and Mr Dislakis a term of three years and six months. Mr Barkho pleaded guilty to a charge of possessing equipment for the purposes of trafficking, namely a PH meter and was dealt with in the Magistrates Court receiving a term of 75 days imprisonment.
30
There are significant differences between you and Mr Peterson and Mr Dislakis, notably, you are only charged with offending on the day of the police raid, both of them were dealt with for offending spanning between 12 February and
11 March 2015.
31
Mr Peterson’s relevant antecedence included a prior conviction for trafficking by manufacture of methylamphetamine which resulted in a sentence of
545 days' imprisonment with 530 days' imprisonment suspended for two years. Mr Dilsakis’ offending breached a four months suspended sentence he had received for dishonesty offences. There are other relevant personal differences.
32 Both Mr Peterson and Mr Dislakis were sentenced on the basis that their offending was “crucial to the success’ of the venture. I am of the view that your offending ought be similarly characterised, however, as I have said your offending is limited to one day only.
33 Balancing all matters, on the charge of trafficking I sentence you to two years and six months' imprisonment and fix a non-parole period of 15 months. I declare and I think it is 122 days served by way of pre-sentence detention. That can be checked.
34 MR GOODENOUGH: I think it is 121, Your Honour, or 120.
35 HIS HONOUR: Have a discussion and agree on a figure. I will indicate that but for your plea of guilty I would have imposed a sentence of three years and four months and fixed a non-parole period of 22 months. Have a seat for now.
36 MR GOODENOUGH: I have discussed it with my friend and it is 121 days and there is an application for disposal, Your Honour, in respect of TAB betting tickets and a mobile phone. I understand it is not opposed.
37 HIS HONOUR: Are there any further orders required?
38 MR GOODENOUGH: No, sir.
39 MS CARUSO: No, Your Honour.
40 HIS HONOUR: If you could remove Mr Belhaj please?
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