Director of Public Prosecutions v El Cheikh

[2024] VCC 1879

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00777

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDRE EL CHEIKH

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2024
DATE OF SENTENCE:	21 November 2024
CASE MAY BE CITED AS:	DPP v El Cheikh
MEDIUM NEUTRAL CITATION:	[2024] VCC 1879

REASONS FOR SENTENCE

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Subject:Criminal Law - Sentence – Guilty Plea – Drug Trafficking -  Firearm Related Offences

Catchwords:   Drug Trafficking - Commercial Quantity – Firearm Possession – Prohibition of FPO – Existing Drug and Alcohol Treatment Order – Persistent re-offending

Legislation Cited:  Sentencing Act 1991 (Vic)

Cases Cited:Berichon v R [2013] VSCA 319; Polos v R [2022] VSCA 258

Sentence:  4 Years Imprisonment with non-parole period of 34 months commencing from date of Drug and Alcohol Treatment Order previously imposed; License Disqualification for 12 months from this date.

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APPEARANCES:	Counsel	Solicitors
For the DPP	J. Malobabic	OPP
For the Accused	J. Anderson	Slades & Parsons

HIS HONOUR:

1Andre El Cheikh, you have pleaded guilty to trafficking a commercial quantity of methylamphetamine; possessing a revolver contrary to a Firearm Prohibition Order; possessing firearm-related items contrary to the same FPO and summary offences of dangerous driving, failing to stop on police direction, driving unlicensed and possessing property reasonably suspected to be proceeds of crime.

Summary of Offending

2The agreed basis of your guilty plea is set out in the prosecution opening dated 16 November 2024.  

3In summary, on 16 January 2024 you were driving on the Calder freeway swerving dangerously through traffic, at more than 45 kilometres an hour over the speed limit (summary Charge 4).

4A few minutes later Police tried to intercept you, directing you to stop and deployed a tyre deflation device, but you drove on (summary Charge 5). You did all this whilst unlicensed (summary Charge 6).

5You stopped a couple of minutes later outside the apartment building at 964 Mt Alexander Road, where you fled the vehicle, leaving the engine running and the driver's door open. As you approached the door to the building, you said to the man who let you in, 'the gun, they got the gun bro, the gun's in the car'.

6Police arrived soon after and searched the car. They found your loaded silver revolver in the driver side door pocket (Charge 2), as well as ammunition, a magazine and a holster (Charge 3).

7You had also left a bag containing 248.8 grams of methylamphetamine, (214 grams pure) in the glovebox (Charge 1).

8Upon further inspection, police later found a Mazda car key; a Hyundai car key; a Mercedes car key; eight computer hard drives; and seven laptops in the boot of the car, which are suspected to be proceeds of crime (summary Charge 7).

9At the time, you were subject to a Firearm Prohibition Order, served on you on 3 May 2021, due to expire on 2 May 2031.

Procedural History

10Police arrested you for these offences seven days later on 23 January 2024 as you were released from the Melbourne Assessment Prison.

11They interviewed you, during which you admitted to being aware of the conditions of your Firearm Prohibition Order, and that it remained active. 

12You were remanded in custody, where you have remained since.

13At the time of your arrest, you had just served six days by way of a sanction under a Drug and Alcohol Treatment Order imposed on you in the County Court Drug Court.

14You pleaded guilty to these offences at a committal mention on 15 May 2024 and this was at an early stage in the proceeding. Your plea demonstrates you accept responsibility, your willingness to facilitate the course of justice and it benefits the community by avoiding the need for a trial.

Personal circumstances

15You are now 34.  You were raised in Melbourne, in Thornbury and Keilor.

16Your parents ran a grocery business, and you report that you spent much of your time as a teenager unsupervised. You deny, however, any trauma or hardship growing up.

17You began using drugs as a teenager: using cannabis at age 16 during Year 10 and you were expelled from school.

18After that, you began using ecstasy, amphetamines, and cocaine by 18. Then, you started with methylamphetamine and have used it for most of your adult life. You also frequently used 1,4 Butanediol.  

19Consistent with your drug use, you have been unemployed for most of your adult life.

20You have a son with a previous partner, who is now five years old. Your relationship with him is very important to you, you say, and you have recently resumed contact with him from custody. You claim your relationship with him motivates you to stop using drugs and that you are sorry for the impact your drug use has had on that relationship.

21You have an extensive criminal history beginning in 2012 when you were 22. It is apparent that it mostly relates to drug use.

22In 2013, you were convicted of robbery, assault and possessing a weapon. Later that year you were imprisoned for nine months, partially suspended, for robbery and related offences. You breached that sentence with burglary, theft, weapons and drugs offences and failing to answer bail, resulting in 70 days' imprisonment.

23In 2015, you were sentenced for three armed robberies, at least one of which involved a firearm, and possessing methamphetamine, to four years and six months.

24In 2020, you were sentenced to 38 days combined with a therapeutic CCO for drug and property offences, and breaching bail.

25In 2021, you were sentenced to 12 months with a non-parole period of six months for trafficking methylamphetamine, possessing other drugs and proceeds of crime, failing to stop on police direction, dangerous driving, and weapons offences in breach of the 2020 CCO.

26In relation to 2022 offences of trafficking methylamphetamine, 1,4 butanediol and cannabis, handling stolen goods, possessing an imitation firearm contrary to your FPO, possessing drugs, you were later accepted into the County Court Drug Court.

27In the meantime, you were granted bail to engage in residential rehabilitation, which you did from 21 October until 3 December 2022 when you left and your bail was revoked.

28On 3 April 2023 however, the Drug Court, after what I accept was a thorough assessment, accepted you and sentenced you to 40 months’ imprisonment to be served by way of a Drug and Alcohol Treatment Order. 

29The Drug Court Judge also sentenced you for related summary offences, including driving similar to the offences in this case, to 220 days' time-served, which was not included in that 40 months.

30During the operation of that Drug and Alcohol Treatment Order over the ensuing nine months, you attended just over half your appointments, you were sanctioned on five occasions each resulting in seven days in custody. You were tested for drug use on 81 occasions with all but one of them revealing ongoing use. You were assessed as not having gotten past the contemplative stage of change (Exhibit 1, Progress Reports dated 22 February 24 and 8 March 24).

31I find your progress under the DATO to have been poor.

32Ultimately, on 11 April 2024 the Drug Court cancelled your DATO and activated your sentence, and having had regard to your time in the community and time previously served on those offences, required you to serve 23 months with a non-parole period of 15 months in custody. That sentence declared the time you had spent since arrest on this matter as pre-sentence detention, and you remain in custody on that sentence.

33Your counsel, Mr Anderson, relied on your Custody Movement Log (Exhibit 2) to show that you have spent the vast majority of your time since 2013 in prison. I accept you struggle with institutionalisation and that in order to succeed you will require intensive supervision and support upon your release.

34In custody, you are currently a 'peer listener' in your unit, a position in which you serve as a mentor to other prisoners. You have engaged in the first of a six-module drug and alcohol treatment course and are also enrolled in a small business course. You have been drug tested nine times that revealed no further drug use while on remand (Exhibit 4).

35You have maintained contact from prison with your mother and current partner. They provided references for you (Exhibit 3), indicating their ongoing support of you and that you continue to express a desire to be drug free.

36I accept your repeated expressed desire to be abstinent, albeit your desire has remained contemplative. I also accept your plea reflects remorse. I will take that into account alongside all the other matters, including your attempts, such as they have been, to put those desires into action.

Sentencing issues

37The maximum penalty for Charge 1 is 25 years' imprisonment.  For Charges 2 and 3 it is 10 years each. The maximum penalties for summary Charges 4, 5, 6 and 7 are two years, one year, six months and two years respectively.

38Charge 1, trafficking a commercial quantity of drug, is a category 2 offence under the Sentencing Act 1991 and I will impose a term of imprisonment for it, and not a combined one, as required.

39Your offending in this case is made more grave because you did so while you were on the sentence from the Drug Court. This was the case even though you were permitted to remain in the community under that sentencing order at that time.

40The gravity of your trafficking is to be understood in light of the quantity being more than four times the pure commercial quantity threshold and that you did so while serving the DATO. While you are only charged with trafficking on a single date, you were clearly trusted to carry a very significant quantity of a valuable drug. I find that profit was a significant motive for your conduct. Your moral culpability for this offence, in my view, is high.

41Your possession of the firearm and related items whilst on the Firearm Prohibition Order, while serious enough, is made more serious because you did so while you were trafficking in methylamphetamine.[1] Further, the revolver was loaded, capable of being fired, you kept it unsecured in the door pocket and left it there with the door open to the public when you ran off. Your offending in this respect reveals an utter disregard to the serious risk such firearms pose to the public.

[1] Berichon v R [2013] VSCA 319, [26].

42To be clear, I have been careful not to punish you doubly due to the relationship between Charge 1, trafficking, and Charge 2, possession of the firearm. While I have found your possession of the gun to be more serious because you did so while running drugs, I have not sentenced you for the trafficking on the basis that it was more serious because you had the gun with you at the time.

43Your speeding on this night was appalling – more than 45 kilometres an hour over the limit. It is a serious example of dangerous driving. Your failing to stop when police indicated you should, including taking them on a merry chase through suburban areas are other factors.

44You have offended in very similar ways in the past. You have been imprisoned twice before for trafficking methylamphetamine and four times for possessing or using weapons of various kinds, not all of them firearms. I will not punish you again for your past offences, but your repeat offending increases the weight I must give to deterring you specifically from offending again and tends to decrease your prospects for rehabilitation, which I find to be guarded.

45Sentencing in such circumstances requires significant weight to be given to general deterrence, denunciation, and punishment.

46I will do as your counsel submits and take into account the totality of your offending in 2022 that resulted in the Drug Court sentence, as well as the entirety of the sentence imposed there, namely 40 months, when arriving at the sentence in this case. I will do so in such a way that the total combined sentence reflects the total of your offending and no more. I have had regard to and follow the decision of the Court of Appeal in Polos v R [2022] VSCA 258 in this regard.

47As of today, I note that you have effectively served 24 months and 10 days of the 40-month original Drug Court sentence, and seven months 10 days of the 15 month non-parole period set by the Drug Court in April 2024.

48Given the time that has passed on that sentence, in relation to which I can no longer order concurrency, I will adjust down the sentence on the charges before me so as to arrive at an appropriate total.

49Accordingly, the individual sentence I impose on Charge 1, the trafficking, the base sentence, should be understood to be less than what I would otherwise have imposed. I will make a similar adjustment when setting a new non-parole period.

50Both the prosecutor and your counsel submitted that the only appropriate sentence was one of imprisonment that attracted a non-parole period and I agree.

51I have had regard to the comparative cases and the principles set out in cases both the prosecutor and your counsel referred me to during submissions. Of course, I have arrived at the following sentence based on the specific facts of your case and the sentences in other similar cases are but one factor I have taken into account.

52I sentence you as follows:

(a)   On Charge 1 trafficking a commercial quantity of methylamphetamine – 3 years and 2 months.

(b)   On Charge 2, possession of the firearm contrary to your FPO – 2 years and 6 months.

(c)   On Charge 3, possessing firearm related items contrary to the FPO – 1 year.

(d)   On summary Charge 4, dangerous driving, summary Charge 5, failing to stop on police direction and summary Charge 6, unlicenced driving – aggregate term of 9 months.

(e)   On summary Charge 7, possessing reasonably suspected proceeds of crime – 6 months.

53Six months of the sentence on Charge 2; three months of the aggregate sentence on the summary Charges 4, 5 and 6; and one month of the sentence on summary Charge 7 are to be served cumulatively upon each other and upon the sentence on Charge 1.

54The total effective sentence in this case is 4 years and that sentence commences today.

55I fix a new non-parole period, commencing on the date that the Drug Court sentence imposed on 11 April 2024, of 34 months.

56There is no pre-sentence detention to be declared in this matter due to the fact that you are currently serving the sentence from the Drug Court.

57In accordance with s6AAA of the Sentencing Act 1991, but for your plea of guilty, but disregarding the adjustments that I have had to make due to the totality principle; I would have imposed 7 years and fixed a non-parole period of 4 years 11 months in this case alone.

Ancillary orders

58On summary Charge 4, dangerous driving involving speeds of more than 45 kph over the limit, any driver licence you hold is cancelled and you are disqualified from obtaining one for 12 months, effective today.

59I make the forfeiture and disposal order, as sought, under s78 of the Confiscation Act for the methylamphetamine.

60I make the forfeiture and disposal order, as sought, under s151 of the Firearms Act for the revolver and all firearm related items, including the ammunition.

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