Director of Public Prosecutions v Chaarani
[2021] VCC 720
•3 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-00869
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OSAMA CHAARANI |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 May 2021 |
DATE OF SENTENCE: | 3 June 2021 |
CASE MAY BE CITED AS: | DPP v Chaarani |
MEDIUM NEUTRAL CITATION: | [2021] VCC 720 |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Trafficking in a drug of dependence – commercial quality; possess a drug of dependence; prohibited person possess firearm
Legislation Cited: Drugs, Poisons and Controlled Substances Act; Firearms Act; Sentencing Act 1991;
Cases Cited:DPP v Condo [2019] VSCA 181; Gayed, Mena v The Queen [2021] VSCA 141; Gregory (a pseudonym) v The Queen (2017)
268 A Crim R 1.Sentence:Total effective sentence of 4 years and 7 months imprisonment; non-parole period of 2 years and 8 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office of Public Prosecutions |
For the Offender | Mr J. Saunders | Valos Black & Associates |
HER HONOUR:
1Osama Chaarani, you have pleaded guilty on indictment to charges of trafficking in a drug of dependence (methylamphetamine) in not less than a commercial quantity, possessing a drug of dependence (Cannabis L), and being a prohibited person in possession of a firearm.
2You have also entered pleas of guilty to two related summary offences, one of possess cartridge ammunition without a licence, and the other a fail to comply with a lawful direction to provide police access to a data storage device, which actually references your mobile phone.
3In sentencing you for these crimes I must have regard to the maximum penalties for the offences that you have committed. The maximum penalty for trafficking in a drug of dependence in not less than a commercial quantity is 25 years imprisonment.
4This charge, Charge 1 on the indictment, is a Category 2 offence, which means that section 5(2H) of the Sentencing Act applies. The court must impose an order under Division 2 of Part 3 - that is, a custodial order - unless one of five exceptions apply. This provision will have little application in your case and no exceptions are sought.
5The charge of possessing a small quantity of cannabis carries a maximum penalty of five penalty units. Being a prohibited person in possession of a firearm carries a maximum of ten years imprisonment. Possession of ammunition without a licence carries a maximum of 40 penalty units; and failing to comply with a direction to provide police with access to data storage carries a maximum of two years' imprisonment. These maximum penalties do reflect the seriousness with which Parliament regards these offences.
6In terms of your offending, the circumstances of your offending were set out in a document entitled "Summary of prosecution opening on plea" dated 22 April 2021. This was an agreed document and represents an acceptance by you of all the elements of the offences to which you have pleaded guilty and the factual basis on which I am to sentence.
7In brief terms, your offending took place on a single day, 23 October 2018.
8At about 5:30 am on that day police from the Fawkner Divisional Response Unit executed a search warrant pursuant to section 81 of the Drugs, Poisons and Controlled Substances Act at your address in Lalor.
9At that time you were present with your wife in the master bedroom. Police conducted a search of the master bedroom and found as follows:
a.Firstly, a black resealable Ziploc bag containing one smaller clear Ziploc bag containing a clear crystal substance and another black resealable Ziploc bag containing four smaller Ziploc bags, also containing a clear crystal substance. Those items were found near you on the bed. The substances were seized and analysed. The contents of a single bag and the four bags were combined and weighed a total of 124.9 grams and contained 109 grams of pure methylamphetamine. A commercial quantity for methylamphetamine is 50 grams pure.
b.Police also located a silver spring loaded pen pistol with two .22 ammunition rounds in a small black and blue pouch in the walk in wardrobe.
c.And, two Ziploc bags containing a small quantity of green vegetable matter in the dining room on the dining table. This green vegetable matter was subsequently analysed and found to be cannabis L.
10At the time of your offending you were defined as a "prohibited person" within the meaning of s3(1)(d)(iii) of the Firearms Act as outlined in the prosecution opening. The pen pistol located by police fits the definition of a firearm for the purpose of Charge 3 on the indictment, prohibited person possess firearm.
11You were arrested and charged on the day of the search, 23 October 2018. Whilst not detailed in the Crown document I was told that at the time of your arrest your mobile phone was seized by police. You were given a direction to give information to allow police to access data on your phone and you failed to comply with that direction. This forms the basis for the summary charge of failing to provide police with access to a data storage device.
12You were subsequently interviewed by police. As is your right, you gave a "no comment" record of interview. You were charged and remanded into custody, where you have remained since.
13In terms of the gravity of the offending, I see Charge 1 as the most serious on the indictment.
14In assessing the gravity of Charge 1, both parties have referred me to a decision in Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1 and DPP v Condo [2019] VSCA 181. In return I referred the parties to a recent decision of Gayed, Mena v The Queen [2021] VSCA 141 which assists with the current bases on which to use each of those cases referred to me by counsel, including confirmation that the uplift referred to in Gregory is neither a determinative nor a controlling factor in the sentencing calculus. I have had recourse to each of the decisions.
15Whilst not provided with any information as to the valuation of the methylamphetamine found in your possession, I accept, in general terms, that methylamphetamine is a profitable drug which must have formed part of your motivation.
16I have not been referred to any comparable cases but accept that a charge of trafficking in a drug of dependence in not less than a commercial quantity arises in widely varying sets of circumstance.
17In the circumstances of your case, and under a quantity-based sentencing regime, the quantity of drugs is a significant indicator of the seriousness of a drug offence.
18In your case, the drugs located were obviously in a not insignificant quantity and could not be said to be low in terms of the purity of the drug, methylamphetamine. As the Crown pointed out, you had twice the commercial quantity of pure methylamphetamine. By the same token the amount located could not be said to be close to a large commercial quantity.
19I accept the charge of trafficking in not less than a commercial quantity of a drug of dependence has occurred on a single date in circumstances where you were in possession for the purposes of sale and, in all likelihood, were a drug user at the time, so in part selling drugs to support your own habit. I note that the Crown opening contains no evidence of actual sales, nor of your involvement with others or oft seen accoutrements such as scales, tick lists or deal bags. No evidence was led of a business in operation.
20I assess the gravity of this particular offending to be at the mid, or slightly below the mid-range for an offence of its type, such that such descriptions assist.
21However, you were obviously at least prepared to be involved in the pernicious trade of drug trafficking. It is a lucrative business with enormous negative and devastating impact on the community through the offending that results from drug addiction, the physical and mental health impacts, and the behaviours drugs then produce. You would have been aware of some of these from your own experience as a user.
22General deterrence and denunciation are an important part of the sentencing mix and the message needs to be clear to those who may be tempted to engage in such activities that stern punishment will result.
23The same principles have application to your other offending, particularly your possession of a firearm when a prohibited person. Your possession of a firearm with access to ammunition, the subject of a separate charge, is also of concern.
24However, there was no evidence that the gun had been used. In your case the possession of the firearm, a pen pistol, has some association with criminal activity which does elevate somewhat the seriousness of this offence. Access to illicit firearms in the community and criminal fraternity is extremely serious and of obvious concern. Again, general deterrence, denunciation and, indeed, community protection are important sentencing considerations with such offending.
25In your refusal to provide police with the information to access your data you, in effect, potentially impacted on their investigation. I am not being told that this is so.
26In terms of your plea of guilty I am obliged to take into account the stage at which you entered your plea of guilty. This matter resolved post-committal and pre-trial. The committal was submissions only and no persons were cross-examined.
27Whilst charged on 23 October 2018, you entered your plea of guilty on
5 February 2021, just prior to the start of the COVID-19 pandemic. Your counsel submits that it cannot be said that there was an early plea, but it still provides utilitarian benefit. I accept this. The court has been saved the time and expense of contested proceedings and you have facilitated the course of justice and demonstrated an acceptance of responsibility for both your conduct and its consequence.28These factors will all be reflected in your favour.
29In terms of your prior history you do have a relevant and admitted prior criminal history, albeit you do not appear to have intersected with the criminal justice system until a later stage when around the age of 29 to 30 years.
30Your first appearance was at the Broadmeadows Magistrates' Court on
12 September 2014 for offences of handling stolen goods, obtaining property by deception and attempting to commit an indictable offence. You were fined without conviction.31On 2 December 2014 you appeared at the Moorabbin Magistrates' Court in relation to charges of going equipped to steal, attempted theft and possess amphetamine. You were sentenced to three months imprisonment, which was wholly suspended for a period of 12 months, in addition to a fine with conviction.
32Some two years later, on 12 August 2016, you appeared at the Broadmeadows Magistrates' Court in relation to a range of matters, including burglary, theft, obtain property by deception, retain stolen goods, attempted theft of motor vehicle, commit indictable offence whilst on bail, make false document and possess methylamphetamine. At that time, you were sentenced to 15 days imprisonment in combination with a community corrections order of 18 months duration. Eight days were reckoned as served.
33On 22 November 2016 the Broadmeadows Magistrates' Court dealt with a contravention of the suspended sentence imposed on you by the Moorabbin Magistrates' Court on 2 December 2014. That court found that exceptional circumstances existed and no order was made as to the suspended sentence.
34On 17 January 2017 you appeared at the Broadmeadows Magistrates' Court and were sentenced to a six month community work only corrections order for a charge of obtain financial advantage from a Commonwealth entity.
35On 28 March 2017 you appeared at the Heidelberg Magistrates' Court in relation to charges of obtain property by deception and fail to answer bail for which you received another community work only corrections order of
12 months duration.36On 3 May 2017 you appeared at the Sunshine Magistrates' Court in relation to a range of matters which included burglary, theft, obtain property by deception, deal with proceeds of crime, tamper with motor vehicle and drive whilst suspended. You were convicted and placed on a 12 month corrections order. On this day you were also dealt with contravening a corrections order imposed on you on 12 August 2016. That original corrections order was varied and extended.
37On 21 September 2017 you appeared at the Broadmeadows Magistrates' Court in relation to charges of possess amphetamine, burglary and theft. You were convicted and again placed on a corrections order for a period of
12 months.38Most recently, on 7 August 2018, you appeared at the Heidelberg Magistrates' Court for a charge of possess methylamphetamine and were fined without conviction.
39Your criminal history is one which therefore represents offences of dishonesty, drug possession and breaches of court orders. It does not reflect violence. Sentencing orders to date do not reflect high level offending. You are not to be punished for these offences a second time, but your history is relevant to the weight in sentencing to be given to specific deterrence, that is, putting you off further offending, denunciation and indeed protection of the community.
40That history as outlined would also reflect the drug use that has clearly been part of your life for some time. I note that you have not previously been sentenced for drug trafficking. The offending before this court does represent an escalation from your offending of the past.
41The time you have spent on remand in relation to this offending, being some 954 days, is certainly the longest period of time you have spent in custody, and, in that sense, is already capable of acting as both a sanction and a deterrent.
42I turn now to your personal circumstances.
43At your plea, a psychiatric report authored by forensic psychiatrist Dr Nina Zimmerman dated 20 April 2021 was tendered on your behalf and helpfully set out much of your background.
44You are currently 36 years of age and were 34 at the time of your offending.
45You were born and raised in Australia. Each of your parents were born in Lebanon and they remain together. You have an older brother and three younger sisters.
46Each of your parents, after having worked for Ford, are now retired. You described your mother to Dr Zimmerman as a loving woman, but said that you did not feel loved by your father when you were a child. You explained your father was very strict and physically abusive towards you and your brother. Your parents would fight frequently.
47You struggled academically at school but managed to complete Year 11 at high school.
48After high school you completed a four year apprenticeship in spray painting and worked in this industry. You have also worked in security, run your own business supplying receipt paper rolls and worked in both maintenance and lawnmowing.
49Important to you is your Muslim faith.
50You informed Dr Zimmerman that you were married for ten years and had two daughters, now aged seven and 11. Your marriage broke down in 2014.
51You have remarried and have been with your current wife for approximately three years. She has a four-year-old son from a previous relationship. You have known this child since he was 18 months of age and he does refer to you as his father.
52In terms of substance use, you told Dr Zimmerman that you never took drugs when you were young because your father was so strict, but that you began to use drugs when you left home.
53The main drug of choice for you is methylamphetamine. You told Dr Zimmerman that you were using .5 grams a day when you started using ice at the age of around 25, but this escalated to 3.5 grams of ice per day prior to your arrest. Dr Zimmerman describes this as a "substantial habit".
54You informed Dr Zimmerman that you have been able to see and hear things since you were about 15 years old. You accept that you suffer from schizophrenia, including auditory and visual hallucinations, but believe that a curse was placed on you by a previous neighbour which has exacerbated your experience.
55You described to Dr Zimmerman a history of unusual perceptual experiences in your grandfather and your sister that were similar to those you began to experience in your late teens.
56You told Dr Zimmerman that between 2010 and 2016 you had a series of misfortunes. Your marriage broke down, you lost your employment, you started using ice, you began offending to support your drug use, and you had four admissions to mental health units.
57Dr Zimmerman had access to a range of comprehensive materials and referred to a letter from Northwestern Mental Health dated 31 January 2017 which indicated that you were brought to the Emergency Department after being found unresponsive under a tree in June of 2016. At that time you had been threatening suicide, had delusions of people being in your roof and had grandiose beliefs that you had enormous powers. It was noted that your decline in mental state occurred in the context of increased use of ice as well as psycho-social stressors. You responded well to depot anti-psychotic medication, Risperdal, as well as abstinence from ice.
58A further letter from Northwestern Mental Health dated 8 November 2018 indicated that your depot anti-psychotic medication changed to Paliperidone in 2018. By November of that year you were being treated as a voluntary patient under the Mental Health Act, and you were attending appointments with a case manager, registrar and a psychiatrist.
59Since being on remand you have been prescribed depot anti-psychotic, Paliperidone. You commenced oral anti-psychotic Olanzapine to help you sleep, but ceased using it due to the associated weight gain. You informed Dr Zimmerman that you prefer to be on depot because you can be sure that you will take it. You do report some re-emergence of attenuated psychotic symptoms towards the end of the month just before your next depot injection is due.
60Dr Zimmerman opines in her report that you suffer from schizophrenia, a relapsing and remitting illness, stating that "it seems likely that illicit drugs, particularly methylamphetamines, played a role in precipitating a psychotic illness in a biologically vulnerable young man".
61Dr Zimmerman notes that you respond well to anti-psychotic treatment and that your illness is currently in remission in the context of abstinence from drugs and treatment on a depot medication. She does suggest, however, that given the re-emergence of some symptoms just prior to your next depot injection being due, that your current dose is only holding relapse at bay. Overall, in her assessment, that circumstance militates against a diagnosis of drug-induced psychosis.
62Dr Zimmerman states that your illness is lifelong, and you will need to take medication long term. Your ability to function successfully into the future will depend in no small part on your ability to remain off methylamphetamines and to engage with treatment.
63You do report being abstinent from drug use during your time in custody and are confident that you will remain abstinent once released because you have now been drug-free for a period of over two years. In recognition of your established illness and the need for treatment, you intend to keep taking depot medication and attending appointments with mental health workers when you are released.
64Whilst you do have a lengthy period of sobriety, Dr Zimmerman does note that the behavioural pattern of abusing ice will remain a challenge for you when you return to the community and I accept that this is likely to be so.
65Dr Zimmerman opines that in terms of reducing your risk of reoffending engagement with drug and alcohol services is vital. This is perhaps obvious. She does not see your illness as preventing your successful engagement in rehabilitation programs.
66Dr Zimmerman did not conclude that there was a relationship between your offending and schizophrenia, nor am I satisfied that it has made your time in custody more burdensome, as there is simply no evidence before me that this is so, and you have complied with and been responsive to treatment. Your illness is a factor I will take into account in a general sense in terms of your personal circumstances.
67For your period of remand you were subject to the Corrections response to the COVID-19 pandemic. Generally, this limited some prisoner movement and access to treatment and courses. You told Dr Zimmerman that for over a year you could not see your family because visits were not allowed.
68I do accept again in a general sense these matters have made your remand period more difficult. You are more fortunate than some, however, to have a billet's position which gave you more freedom of movement than others, and, given the materials tendered on your behalf, you were able to access some courses and programs. I have had recourse to the certificates tendered.
69This has allowed you to use your time as wisely as you could in the circumstances. The certificates tendered including programs "Skating on ice", "Healthy Living", and you have obtained certificates in cleaning, warehousing operations and kitchen operations.
70This further demonstrates your stated wish for a different life than the one you were living up until 23 October 2018.
71In the report of Dr Zimmerman you are said to have expressed regret over your actions and to recognise the link in your offending to your drug abuse.
72You told Dr Zimmerman that you want to go home, live a normal life again and maybe have your children come to live with you one day.
73Your counsel submits that your pleas of guilty may be regarded as evidence of remorse over and above your sentiments expressed to Dr Zimmerman.
74I accept that your lengthy period of time on remand has given you the opportunity to reflect and that you are remorseful for your offending of
23 October 2018.75I accept the contents of Dr Zimmerman's report in its entirety, noting that it was unchallenged.
76In terms of your prospects of rehabilitation, they are firmly based on your ability to maintain abstinence from drugs and to accept and receive medication and treatment for your recognised psychiatric illness. You have been compliant with treatment in the past and are presently.
77Given the lengthy amount of time you have spent in custody to date, together with your stated intent and insights, at this point in time your prospects for rehabilitation are real, but they are contingent on the matters to which I have referred.
78There is merit in a submission made by your counsel that this can be best supported, and indeed the community can be best protected, by a lengthy period of a supported transition returning you to the community.
79I have indicated that I will make the ancillary orders as sought for disposal of drugs and associated property, and for the forfeiture of the pen pistol and ammunition.
80I turn now to sentencing.
81The basic purposes for which a court may impose a sentence include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.
82I must also balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking to ensure, as far as is possible, that offenders are rehabilitated and are reintegrated into society.
83I have taken into account relevant sentencing guidelines referred to in section 5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, as well to the principles of both totality and proportionality.
84In terms of Charge 1, trafficking in a drug of dependence in not less than a commercial quantity, you are convicted and sentenced to four years and four months imprisonment.
85Charge 2, possess a drug of dependence, given the small quantity and referencing again the principle of totality on this charge, but your relevant prior history, you are convicted and fined the amount of $200.
86Charge 3, prohibited person possess firearm, you are convicted and sentenced to 12 months imprisonment, of which three months is cumulative on the base sentence which is Charge 1.
87For the summary offence of possessing cartridge ammunition you are convicted and discharged.
88For the summary offence of failing to provide police access to data on your phone, you are convicted and sentenced to four months imprisonment. This sentence is concurrent with the others I have imposed this day.
89Your total effective sentence, Mr Chaarani, is one of four years and seven months imprisonment.
90954 days are reckoned as having already been served.
91You are to serve a period of two years and eight months before being eligible for parole.
92Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to those charges. If not for your pleas of guilty you would have been sentenced to a total effective of six years imprisonment with a minimum of four years and two months before being eligible for parole.
93Thank you. Mr Gray, as indicated is there anything I have missed from your end?
94MR GRAY: No, Your Honour, thank you.
95HER HONOUR: Mr Saunders?
96MR SAUNDERS: No, thank you, Your Honour.
97HER HONOUR: As indicated, Mr Saunders, I will give you the opportunity to speak with your client with your instructor in private. You will just have to give my associate a few minutes to disconnect the rest of us. Otherwise I will close the court. Thank you.
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