Director of Public Prosecutions v El-Ali
[2023] VCC 101
•2 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-01086
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMAD EL-ALI |
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JUDGE: | HER HONOUR JUDGE SYME |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 February 2023 |
DATE OF SENTENCE: | 2 February 2023 |
CASE MAY BE CITED AS: | DPP v El-Ali |
MEDIUM NEUTRAL CITATION: | [2023] VCC 101 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trafficking in a drug of dependence – Possession of a drug of dependence – Substantial progress towards rehabilitation - Excellent prospects
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic) & Sentencing Act 1991 (Vic)
Sentence: 4 months imprisonment and two $300.00 fines.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Albert | Ms. D. Tang |
For the Accused | Mr D. Edwardson KC | Ms. T. Milides |
HER HONOUR:
1Mr Mohammad El-Ali has been found guilty in accordance with my reasons for decision dated 31 January 2023. He has been found guilty of Charge 2 on the Indictment, namely, that on 28 November 2018, he trafficked in a drug of dependence, being methamphetamine.
2The quantity involved was 10.5 grams, contrary to s 71A(c) of the Drugs, Poisons and Controlled Substances Act (‘the Act’). The maximum penalty for that offence is 15 years imprisonment or, as Mr Edwardson has reminded me, two years imprisonment if the matter was dealt with in the Magistrates' Court.
3The offender also pleaded guilty to Charge 4 on the Indictment, namely, that on the same day, at the same place, he had in his possession a drug of dependence, being testosterone, contrary to s 73 of the Act. The offender further pleaded guilty to Charge 5 on the Indictment, that on the same day, at the same place, he had in his possession, a drug of dependence, namely boldenone, again, contrary to s 73 of the Act. The maximum penalty for the possession offences is one year imprisonment where the court is satisfied, on the balance of probabilities, that the possession is not for the purposes of trafficking.[1]
[1]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1)(b).
4Let me put on the record that the prosecution has very appropriately, in my view, conceded that in relation to Charges 4 and Charge 5, the possession of the two steroid substances were not associated in any way with the trafficking of those substances.
5So, notwithstanding the fact that I have found Mr El-Ali guilty of trafficking of methamphetamine, I accept, on balance, that the possession of the two steroid substances was for personal use only, and therefore, the maximum penalty that I would take into account when considering a maximum penalty, as a guideline, is one year for each of those charges.
Criminal history
6In relation to Mr El-Ali's criminal history, he has admitted some relevant prior convictions. 2013, traffic methamphetamine, together with some other charges of cultivate cannabis, possession of a firearm, and deal with the proceeds of crime. He was sentenced to a total imprisonment term of 18 months with a non-parole period of nine and a half months.
7Between 2011 and 2012, he was convicted of a series of contravened family violence orders, and I will refer to those in context later on.
8A New South Wales record of conviction shows a number of breach apprehended violence orders dealt with in 2014, and apparently, a domestic related take or detain for advantage offence in 2016. Ultimately, a suspended sentence was imposed.
9The circumstances of those prior convictions will not allow a consideration of leniency in the sentence to be imposed on these matters which I note, were committed shortly after the expiry of the section 12 bond that was imposed in New South Wales. But, of course, I acknowledge that prior convictions for similar matters do not amount to aggravating circumstances.
10The facts relevant to these offences, or more importantly, the facts relevant to the trafficking charge are set out in my reasons that I delivered this week. They were rather lengthy and detailed, and I do not propose to expand on them at all.
11After his arrest for these matters, I am now aware that he was granted bail but re-arrested again less than a year later on some further drug related matters that occurred in 2019.
12Those further drug related matters were sentenced in, I gather, the Magistrates' Court, in late 2020, and a part of the time that he had spent in custody, in total, on those matters, and on these matters, formed part of that sentence.
13We are now over two years after that sentence was imposed and four and a half years since these offences occurred. We are also three and a half years after his last involvement in any drugs or trafficking matters. That is an important consideration that requires some further comment.
14The first thing that I note is prior to the commission of this offence, it had been five years since you were involved in any serious drug related matters. After the commission of this offence, it is clear that there was another offence committed in 2019.
Personal circumstances
15I take into account, in assessing your personal circumstances, a number of documents that I have read. And the details of your history are contained, really, in a number of references that I have received on your behalf from your wife, Ms Saad and other family members including your sister, your parents, and other friends. They have given me some detail of your work and life history up until now. I have also received, and I have read, two psychological reports from a Mr. Matthew Staios, dated 3 September 2019 and Patrick Newton dated 2 July 2020. That later report was prepared in relation to some immigration proceedings, unrelated to this matter.
16Both of those reports, however, set out details of your personal history. They include your offending history and a long discussion of your drug use over the years from when you were a later teenager, if I can refer to it as that.
17It is probably fair to say, sir, that your involvement with drugs and your attempts to rid yourself of your addiction has been a bit of a ‘two steps forward, one step back’ process over the last 10 or 15 years or so. My observation, sir, is that that is not an unusual set of circumstances for people who are involved in drug use. You have, from time to time, enjoyed extended periods free of substance abuse.
18I am also able to draw the conclusion, from the information that I have, that your substance abuse has been intricately involved in your other criminal offending. Whether that be domestic violence offending or involvement in trafficking or supply, or on one occasion, a fairly dismal attempt to try to manufacture drugs for your own use.
19I note that since the commission of these offences, and specifically, really, since your imprisonment in 2019, you seem to have, again, taken hold of your life. Your wife, Ms Saad, indicates that you met her in Lebanon in 2016. She is aware of your substance abuse history. She is very supportive. And she indicates that you have tried a number of things in order to resolve those issues. I accept that.
20While you were in custody, you undertook a number of studies and courses and certificates in order to resolve a number of issues in your life, and in order to understand, perhaps, the consequences of your offending. And also, to improve your general education.
21Significantly, I note that since you were released from custody, you undertook some further assistance - private assistance – to resolve your drug abuse issues. Rehabilitation appears to have been effective.
22The correspondence and letters and reports from Lamberti Associates and Ms Amanda Brown have been read with detail. Those three letters, dated between March 2020 and September 2021, detail a series of counselling sessions you have undergone and the directions you have received from them. All of which you have complied with.
23I have received, I am told, 107 urine screens between April 2020 and 31 January 2023. You have not tested positive for any illicit drugs within that time. Although I note you have tested positive from time to time for prescribed benzodiazepines. That is something that does not detract from your withdrawing from drugs.
24I also note there is some proof, which is difficult to obtain, that you have attended and now lead Narcotics Anonymous meetings. There is a letter from one of your fellow attendees, and a family member, indicating that you have not only resolved to not use drugs yourself, but you are also assisting other people as well.
25As I said at the beginning, I accept that ceasing to take drugs of addiction is very difficult. Your urine tests indicate to me that you have successfully done so. Your continued attendance at Narcotics Anonymous is to be supported, and I accept that you are no longer using drugs.
26It will be, sir, I imagine, a life-long – I was going to say 'battle' – but I do not think that is quite right. It will be a life-long focus of your life, and it will have to be a life-long focus of your life.
27I do recall, sir, being advised by people who assist people with drug issues in the past, that, generally, you should not consider that you have overcome your drug struggles until you have been completely clean for as long as you were using prior to you resolving yourself of those drug issues. That is probably not a bad yardstick. So, you have made, sir, what I would call a very good start.
28There are no issues in the psychological reports that I have read that relate to any mental or physical health issues that I ought to be aware of that would reduce your moral culpability.
29You have significant community and family support. And taking into account your resolution to stop using drugs – proof that you have stopped using drugs – community and family support, and the number of courses and studies that you have done to understand your drug abuse issues, I am of the view that your prospects of rehabilitation, at this stage, sir, are excellent.
Objective seriousness & sentencing considerations
30I understand the submissions of your counsel, that the charge of trafficking is one that the court should take into account, looking at the objective seriousness of the offence. In my view, the objective seriousness of that offence, taking into account the quantity found in your possession, over three times the trafficable amount, taking into account the other accoutrements of supply, such as bags, scales, and money, this is an offence of less than mid-range objective seriousness. But not so significantly so as to be at the very lowest end of objective seriousness.
31I accept that looking at your drug use history, it is very likely that some of those 10.5 grams were for your own personal use. But I also found beyond reasonable doubt that some of it was for the purpose of trafficking to others.
32Relevant purposes of sentencing, as set out in s 5 of the Sentencing Act, include general and specific deterrence. Specific deterrence, to a large extent, appears to have been dealt with personally by you, sir, in the ways that I have already referred to. Undertaking rehabilitation and taking rehabilitation seriously. You are now working full-time, as I am told by your current employer, and working hard, I am told. So, specific deterrence has perhaps been dealt with.
33General deterrence is always a consideration. The statistics that counsel always want to put before the court showing how often trafficking matters are dealt with by way of a custodial sentence is something the courts like to take into account.
34The purpose of sentencing is also, however, to assist with rehabilitation and to protect the community from you. The best protection the community can have from you trafficking drugs into the community, sir, is to support your rehabilitation. In my view, the best way to support your rehabilitation is to ensure that you continue to do what you have been doing in the last year and a half, two years or so.
35That is, to have the support of your family, to have the support of your wife, to look after your newborn child, to create a family life, and a circumstance for that child where he is going to thrive in the community, to continue working, and to continue your rehabilitation process. The best way of doing that, in my view, is for the justice system to get out of your way at this stage.
36I acknowledge that you have completed, between 2019 and 2020, a significant amount of time in custody. I propose to take into account the amount of time you have spent in custody. However, even the sentence for the trafficking charge will not take care of all of it.
Sentence
37In relation to Count 2, that is trafficking methamphetamine, taking into account all of the aggravating and mitigating circumstances that I have mentioned, I propose to sentence you to a term of four months imprisonment. I acknowledge that you have already completed – I am told by the prosecution – 188 days in custody, and that will be taken into account immediately. On my calculation, there is certainly no more time to serve.
38In relation to the two charges of possession of steroid substances, I propose to impose a fine of $300.00 on each charge. I will make a disposal order with respect to the other items found in your possession, and a forfeiture order with respect to the $4,000.00-odd sum that was found in your possession.
39If appropriate, I would make a 6AAA finding in relation to the two charges that you pleaded guilty to. That is, the possession charges. Were it not for your plea of guilty, the sentence that would have been imposed would have been $450.00 on each charge rather than $300.00.
HER HONOUR: I make a formal order that 188 days of pre‑sentence detention be taken into account when calculating the amount of time he serves in custody.
MS MILIDES: As Your Honour pleases.
HER HONOUR: There will be a little bit of time while paperwork is done. After the paperwork is done, your client will be free to go
MS MILIDES: Thanks, Your Honour. May it please the court.
HER HONOUR: Okay. Thank you very much. Thank you, counsel. We will adjourn now.
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