Director of Public Prosecutions v Chaouk
[2013] VCC 1730
•8 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00517
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHMED CHAOUK |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 8 November 2013 | |
CASE MAY BE CITED AS: | DPP v Chaouk | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1730 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. D'Arcy | Office of Public Prosecutions |
| For the Accused | Mr R. van de Wiel QC |
HER HONOUR:
1 Mohmed Chaouk, you have pleaded guilty to one charge of trafficking in a drug of dependence, Charge 1, one charge of possession of a drug of dependence, Charge 2, one charge of handling stolen goods, Charge 3, and one charge of possessing false documents, Charge 4. You have also pleaded guilty to 17 uplifted summary charges. Summary Charges 9 and 10 are charges of possession of ammunition. Summary Charges 11, 12, and 13, are charges of possessing a prohibited weapon. Charges 14 to 25 inclusively are charges of driving while disqualified.
2 The maximum penalty in respect of Charges 1 and 3 is 15 years' imprisonment. The maximum penalty in respect of Charge 4 is ten years' imprisonment. The maximum penalty in respect of Charge 5 is five years' imprisonment in the circumstances which apply in this case. The maximum penalty available in respect of Charges 9 to 13 is two years' imprisonment or 240 penalty units. The maximum penalty in respect of the remaining uplifted summary charges is four years imprisonment or 30 penalty units.
3 The prosecution made application for the taking of a forensic sample from you and forfeiture of drugs and certain paraphernalia. The prosecution also sought a pecuniary penalty order in the sum of $47,550. The making of those orders was consented to.
4 The circumstances of your offending are set out in the prosecution opening which was tendered as Exhibit A. In brief the circumstances were as follows.
5 Charge 1 concerns trafficking in methamphetamine, ice, between 18 April 2011 and 27 October 2011. Telephone intercept material in that period showed that you were involved in the trafficking of ice to an established network of seven clients on a consistent and regular basis. You used three mobile phone numbers for this purpose, all of which were connected to false subscriber names and personal details. The exact quantities sold by you is unable to be determined.
6 During that period of time a covert police operative met with you on six occasions to arrange to buy ice. The operative received ice from you in amounts of 3.2 grams, 3.5 grams, 27.8 grams on two occasions and 40.4 grams. A total of 102.7 grams was received by the officer and you were given $47,550 in payment. Most of the ice you sold to the covert operative was 60 percent pure.
7 During a meeting with the covert operative on 23 September 2011 you gave the covert operative five white tablets at no cost. These tablets were effectively a sample of what you said you could supply in larger quantities. You had previously said that you could sell MDMA or ecstasy if required. Subsequent analysis found that the tablets contained the drug ketamine. It is the possession of that drug in those tablets that gives rise to Charge 2, possession of a drug of dependence.
8 You were arrested on 27 October 2011. At that point you were driving. Your car was searched and the police found a Victoria Driver's licence in the name of another person. Your possession of that licence gives rise to Charge 3 of handling stolen goods. A number of false documents were found in your car, being an NAB Visa card, a Medicare card and a Victoria Driver's licence in the name of a second person. The licence carried your photograph. Police found at your home a piece of paper with photocopies of those documents. The police also found in your car a Medicare card and a Victoria Driver's licence in the name of a third person. At your home police found a photocopy of a Victoria Driver's Licence, Medicare card and an ANZ Access card in the name of a fourth person. The police also found a Lebara mobile sim card. These documents were all false. Two of the people named in the documents did not exist and the original owner of one Medicare card and Victoria Driver's licence had had his documents stolen in May 2010. The possession of these false documents is the subject matter of Charge 4.
9 Police enquiries have not been able to reveal the source of the false documents. During your interview with the police on 25 November 2011 you said that the first group of documents, including the one which had your photograph, were provided to you to provide you with a new identification so that then nobody would know who you were. You said you did not know the documents were illegal and the additional cards were to show other people and to get more customers.
10 The police found in your garage the ammunition, including cartridge ammunition which is the subject matter of summary Charges 9 and 10. They also found a double bladed sword, a single bladed samurai sword and a cane with sword stick which are the subject of summary Charges 11, 12 and 13. On ten occasions between 23 March 2011 and 27 October 2011 you were observed by police to be driving a motor vehicle. At that time you were disqualified from driving in the state of Victoria. Your driving on those occasions is a the subject matter of summary Charges 14 to 25 inclusively.
11 In sentencing you I have taken into account your personal circumstances. You are now 64 years old. You were born in Lebanon. You had very little education in Lebanon and did not learn to read and write Arabic. You left school and worked on your parents’ farm. You came to Australia when you were about 28. Once of your brothers had migrated to Australia earlier. You married your wife in Lebanon two years later. You and your wife have four adult sons.
12 In Australia you worked in factory jobs and then security. You trained as a wrestler. You competed as an amateur at international level. For a short period of time you worked as a professional wrestler in a television program. About 15 years ago you suffered a back injury and have been on a pension since.
13 A report from Dr John Gall, forensic physician, dated 27 March 2013 was tendered as Exhibit 1. That report sets out your past and current medical conditions. You currently suffer from diabetes and require regular insulin injections. Dr Gall makes a number of recommendations as to the treatment and management that is required for your diabetes. Dr Gall says that you require specialist reviews by an endocrinologist and an ophthalmologist. Dr Gall says in summary that you have been principally suffering form diabetes which has been sub-optimally managed for many years. He says you are gradually moving towards optimal management.
14 As a result of a sub-optimal management you have developed a number of very significant medical conditions. Your vision is affected as is your peripheral vascular and nervous system and kidney function. Dr Gall says your cardiac function is probably adversely affected as well. Dr Gall says many of these conditions are potentially fatal unless you have medical management and your compliance with that management is optimal. He says additional complications may develop such as peripheral ulcers, gangrene and infections if you do not get adequate care. He says there is also the possibility of sudden, unexpected death or earlier than expected death. He says that ready access to general and specialist care is essential for you. Dr Gall says that technically effective care is available in custody but in reality his experience suggests that health care in custody may be sub-optimal for a number of reasons.
15 A report from Dr Michael King, clinical psychologist, dated 18 September 2012 was tendered as Exhibit 2. Dr King assesses you as having post traumatic stress disorder which he says arises from a fear of traumatic violence towards family members and yourself. He says that you also have "seriously depleted intellectual ability". Dr King tested you and says that many scores in the testing which measure decision making puts you below the poorest performing one percent of the population. Dr King says that you also have a narcissistic personality disorder. It is Dr King's opinion in respect of your offending that these diagnoses are relevant. He says that you told him that in the past you would use your physical presence as a potential enforcer and put people in touch with others. You were not directly involved with drugs or that type of offending. He says this time you agreed to provide illegal services and items. Dr King says
"In summary the situation involves a man with seriously depleted mental capacity operating at the decision making level of a six year old and with the additional burden of financial difficulty as well as the major psychological issue of a largely unsupported belief in himself as a man of importance.
In this situation of financial duress or financial hardship and under the internal pressure of an untreated personality disorder he has agreed to do a range of actions and services which were manifestly faulty, stupid and illegal."
16 Dr King says that the matter of your post traumatic stress disorder is well in hand as you are already receiving treatment in respect of that. Dr King says you can understand the deterioration in your cognitive function and can learn to act on the basis that you need additional advice when dealing with decisions. Dr King's opinion as at the overriding and dominating issue which sent you into difficulties is a severe form of personality disorder. Dr King says this class of disorder is treatable with specialist help from a clinical psychologist.
17 Dr King confidently predicts that you will have a distinctly lowered risk of offending in the future based on your age, conversations with your family and from the developing clarity and understanding that you show as well as your awareness that gaol is the inevitable outcome for those who repeatedly offending.
18 You have admitted a prior criminal record. Of principal relevance and concern are two court appearances in the 1980's. In 1987 you were sentenced to a term of imprisonment for a period of six years with a minimum of four years on one charge of trafficking in a drug of dependence. In 1998 you were sentenced to a term of imprisonment for a period of three months for possession of a drug of dependence, namely heroin.
19 A friend, Mr Antonio Medaca, gave evidence on your behalf. Mr Medaca said he had known you since the late 70's. He has assisted you in relation to health and financial problems. Mr Medaca said your wife is unwell. He said that you know that you have come to the end of the road. Mr Medaca described you as silly and not being the brightest person. Mr Medaca said you have been in custody for a period before you were granted bail. You became very ill and were very tense because of your concern about members of another family who may be in custody. Members of that family have had a conflict with your brother's family and you feel that they may target you.
20 Your Counsel, in sentencing submissions, referred to the conflict and ongoing violence that had occurred between your brother's family and the other family. Your Counsel said that there were many members of the other family in gaol. Your Counsel confirmed that you were very concerned about the potential that you would be targeted because of your association with your brother's family.
21 In sentencing submissions your Counsel said that you had significant health issues and had had difficulties with your medication previously in custody. He also relied on your limited cognitive abilities. Your Counsel said that you wished to go back to Lebanon. Your Counsel submitted that because your health problems you would find gaol extremely difficult and that because of your mental capacity you would have difficulties coping with the authorities. Your Counsel said in respect of the offending that your trafficking was small in nature in not within the commercial range. Your Counsel said that although you did not link your offending with your financial difficulties there did appear to be a connection as you were having trouble paying your mortgage repayments. You engaged in the offending and the undercover operative asked for increased amounts.
22 Your Counsel said your instructions were that the bank card and driver's licence in a false name had been provided by the undercover operative but that you were aware that you should not have that identification and you were ware you should not drive. The other documents, on your instructions, were found by you or given to you by someone else. Your Counsel submitted that your offending was limited and not sophisticated.
23 In respect of the ammunition your Counsel submitted that the sword sticks were in the garage because your wife regarded them as rubbish and the ammunition was left over from the past when you did have a gun licence.
24 Your Counsel submitted that a suspended sentence would be an appropriate sentence.
25 The prosecutor submitted that a term of imprisonment to be served was warranted because of the seriousness of your offending. The prosecutor's instructions were that a head sentence of between two years and six months and four years with a non-parole period of 18 months to 36 months would be appropriate. The prosecutor submitted that your prior convictions in relation to trafficking were of relevance despite the fact that they were some time ago.
26 Mr Chaouk, clearly the most serious of these offences is the trafficking in a drug of dependence. You were trafficking over a period of months to establish clients on a consistent and regular basis. From the purchases made by the covert operative you were able to supply significant amounts and were paid significant amounts of money. The business of the sale and distribution of illegal drugs is an evil trade. It makes profits from the vulnerabilities and weaknesses of others. The trade in illegal drugs causes harm to individuals and to the community as a whole. It is very important that people who think about getting involved in this business understand that they face a risk of a significant gaol term if they are caught. It is to be hoped that that will discourage others from deciding to get involved in this type of business.
27 You were well placed to understand both the evils of the drug trade and the potential consequences for yourself, given that you have previously served a lengthy term of imprisonment for drug trafficking. Despite that prior sentence of imprisonment you went along with the suggestion to engage in this business in order to make money for yourself. You employed a number of mobile phones with false subscriber names and personal details in order to carry out your business.
28 It appears that your post traumatic stress disorder is relatively well under control. I accept Dr King's opinion that at least in some respects your cognitive function is at a low level and that your decision making abilities are affected by this. That said you have been able to function quite well in terms of conducting your drug trafficking business and in trying to make sure that you could not be identified. I accept that your cognitive limitations together with your personality disorder contributed to your decision to engage in this business but in my view those matters should operate in moderation of sentence only to a relatively minor degree. In respect of the drug trafficking there is nothing to suggest that you did not know that it was wrong or illegal. On the contrary your efforts to make sure you could not be identified suggests that you were quite clear that it was illegal.
29 I accept the opinion of Dr Gall that your physical health is poor that you are likely to face difficulties obtaining treatment over the longer term in custody. I consider that you will have particular difficulties because of your mental capacity. You are likely to have problems in being able to organise the appropriate range of treatments that you require whilst you are in custody. It is to be hoped that your family will be able to assist you with this.
30 I also accept that gaol will be more difficult for you because of your fear of retribution or targeting from the other family. Given your lowered mental capacity and personality disorder the question of potential threat is likely to weigh heavily on your mind whilst you are in custody. I am, of course, unable to say whether or not your fears are well founded.
31 I accept that your drug offending was limited in its extent and its degree of sophistication. In respect of the charge of possession of a drug of dependence your Counsel did not submit that the ketamine was not possessed by you for any purpose relating to trafficking in that drug of dependence so the higher penalty applies. I could not be satisfied that it was not possessed by you for a purpose related to trafficking on a balance of probabilities given the circumstances in which the ketamine was provided to the officer. That said, the amount was small and that is a considerably less serious offence.
32 The stolen goods you possessed and the false documents you possessed are of concern and I am satisfied that you possessed those items knowing they were false and knowing you should not have had them. I am also satisfied, given what you have said, that these documents either were or potentially were connected with your drug trafficking business.
33 In my view the offending in relation to Charges 2, 3 and 4 is closely tied into your offending and trafficking in a drug of dependence and accordingly any sentences imposed should be served concurrently with a sentence on the trafficking charge. The ammunition and weapons items seized were, in my view, not of a serious, threatening or dangerous nature. You should not have possessed those items but that offending is of a relatively minor nature.
34 You knew you were not supposed to drive and you continued to drive on numerous occasions. You have no prior history of driving while disqualified. I accept that you lost your licence because of points but a sentence needs to be imposed in relation to those matters which will bring home the message that people must not drive when they are disqualified from driving.
35 You are entitled to a significant discount for your plea of guilty. You have saved the cost and inconvenience of a trial. You have accepted your legal responsibility for your offending and to that extent have demonstrated remorse.
36 A sentence of imprisonment which requires a period to be served is in my view the only appropriate sentence for the purposes of punishment, denunciation and general deterrence. I consider that specific deterrence ought to be given some weight in sentencing you, bearing in mind your advancing years and your health in the light of which you are less likely to re-offend in the future.
37 Your prospects of rehabilitation, in my view, hinge on your continued involvement with your medical treatment. You would also benefit from treatment for your personality disorder. It is also important that your family has a greater awareness of your problems. My views as to your prospects for rehabilitation are guarded given that you committed these offences despite having served the lengthy gaol term previously for similar offending.
38 I have decided to set a non-parole period rather than partially suspend the sentence. I have noted that you wish to return to Lebanon. If you are on parole that may not be possible but I have decided because of the seriousness of your offending and the potential benefits to your prospects of rehabilitation of supervision by the Parole Board that it is appropriate to impose a sentence with a non-parole period. I have set the non-parole period shorter than I would have otherwise, because of your poor physical health, cognitive difficulties and personality disorder.
39 Mohmed Ali Chaouk, in respect of Charge 1, trafficking in a drug of dependence, you are convicted and sentenced to a term of imprisonment of two years and eight months. In respect of Charge 2, possession of a drug of dependence, you are convicted and sentenced to a term of imprisonment of 14 days. In respect of Charge 3, handling stolen goods, you are convicted and sentenced to a term of imprisonment of one month. In respect of Charge 4, possessing false documents, you are convicted and sentenced to a term of imprisonment of three months.
40 In respect of Summary Charges 9 and 10 you are convicted and fined $100 on each charge. In respect of Summary Charges 11, 12 and 13 you are convicted and fined $200 on each charge. In respect of Summary Charges 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of driving while disqualified you are convicted and sentenced to one month imprisonment on each charge. In respect of Summary Charge 25 your licence is cancelled. You are disqualified from driving in the state of Victoria for a period of one year.
41 The sentence on Summary Charge 25 is to be served cumulatively on the sentence on Charge 1. All other sentences of imprisonment are to be served concurrently with the sentence on Charge 1. The total effective sentence is two years and nine months imprisonment. I fix 12 months as the period that you are required to serve before being eligible for release on parole.
42 I am making the order for the taking of a forensic sample from you. I am making that order because of the seriousness of your offending, your prior criminal history and your consent to the making of that order I also make the order for the forfeiture and disposal of the drugs, paraphernalia and other items. I make the pecuniary penalty order for the amount of $47, 550.
43 But for your plea of guilty I would have sentenced you to a term of imprisonment of three years and nine months with a non-parole period of two years and three months.
44 Mr Chaouk, I must tell you that you must not drive while disqualified. There are significant penalties if you drive while disqualified. Presumably you will be in custody for the next 12 months at least but after that you need to go through getting your licence back if you want to drive.
45 In respect of the taking of a forensic sample from you, you must cooperate with the authorities when they come to take a saliva swab from your mouth. If you do not cooperate they can use reasonable force to take the sample from you.
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