Director of Public Prosecutions v El-Cheikh

[2022] VCC 658

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-01003

DIRECTOR OF PUBLIC PROSECUTIONS

v

FAWZI EL-CHEIKH

JUDGE:

HER HONOUR JUDGE DALZIEL

WHERE HELD:

Melbourne

DATE OF HEARING:

09 February 2022

DATE OF SENTENCE:

10 May 2022

CASE MAY BE CITED AS:

DPP v El-Cheikh

MEDIUM NEUTRAL CITATION:

[2022] VCC 658

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Attempting to possess a drug of dependence – Theft – Trafficking in a drug of dependence 

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v R [2021] VSCA 169

Sentence:                  Convicted and sentenced to a total effective sentence of one year and eight months’ imprisonment, with a non-parole period of twenty months.

Section 6AAA declaration: Conviction and total effective sentence of three years and six months’ imprisonment, with a non-parole period of two years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B. Sonnet	Office of Public Prosecutions
For the Accused	Mr Gurvich, QC and Mr Bourbon (plea) Mr P. Smallwood (Sentence)	Slaveski & Associates

HER HONOUR:

1Fawzi El-Cheikh you have pleaded guilty to one charge of attempting to possess a drug of dependence, one charge of trafficking a drug of dependence and three charges of theft.

2The facts founding these charges have been set out in detail by the prosecution in the Summary of Prosecution Opening.[1]  The description of the charges I will now give is a precis of the Opening, but I will take into account all the facts in that document when sentencing you.

[1]Summary of Prosecution Opening dated 8 February 2022.

3Your offending was discovered as part of a larger operation by the Echo Taskforce into the drug importations and trafficking conducted by a larger group, led by Dominic Luzza. Luzza was at that time the Victorian Treasurer of the Comancheros OMCG.

4You knew Luzza and another Comancheros member, but were not yourself a member of that OMCG.  At the time of this offending, you were aged 19 and then 20.  You were driving a RAV4 which was registered in your mother’s name, and you used three different mobile numbers, each registered in a name other than yours.  These numbers were subject to lawful telephone intercepts.

5Charge 1 is that you attempted to possess a drug of dependence. This relates by attempts by you to take possession of two parcels of a drug of dependence which had been sent from China to Australia. Each parcel contained approximately 50 kilograms of the drug methyl alpha- acetylphenylacetate, which is an analogue of phenyl-2-propanone.  I shall refer to this drug as MAPA. MAPA is a chemical used in the manufacture of amphetamine and methylamphetamine.  The weight of drug found in these parcels is not stated in the Opening.

First Parcel

6On 1 February 2019 a package sent from China arrived in Australia, via FedEx Australia.  It was addressed to a false name (Liam Dimech) and address, although the surname was connected to an associate of yours, Mr Sasulu.

7The declaration on the package was that it contained a food preservative, and that it weighed a total of 50 kilograms.  Australian Border Force (ABF) inspected the package and seized it.  Its contents were examined and found to contain MAPA.

8Contact was made with FedEx regarding the parcel via two mobile phone numbers that were connected to you, one being subscribed in the name of your mother and one in a false name but where the SIM card and handset were found in your possession on 20 February 2019.  Contact was also made via an online chat forum, and an email provided which was connected to Luzza.

9On 5 February 2019 you drove your RAV4 to the FedEx depot in Derrimut.  Sasulu got out of the passenger seat and went inside, where he produced a handwritten note purportedly from the addressee of the parcel.  He was told the parcel was being held by ABF, and he left.

10Around 40 minutes later you and Sasulu went back to the FedEx depot.  He was again told the parcel was being held by ABF, and he went back to your car where he spoke to you.  You then went inside and were told the parcel was waiting on customs clearance.

Second Parcel

11Also, on 1 February 2019 another parcel arrived in Australia, from China.  It was addressed to Peter Papa which was a false name, at a false address.  This parcel arrived with the first parcel which was addressed to Liam Dimech, as part of a consolidated consignment.  It  was also labelled as containing a food preservative, with a declared weight of 50 kilograms. This parcel was seized and examined and found to contain MAPA.

12On 4 February 2019 Koray Biricik went to the FedEx depot in Derrimut to collect this parcel.  He had with him a handwritten note purporting to be from Peter Papa, authorising Biricik to collect the parcel.  He was told the parcel was being held by ABF and he left.

13You had given the details of the parcel to Biricik, and told him and what to put in the note.  The messages directing him about this were found on your mobile phone.

14You did not take possession of either parcel, although you took all the steps you could to do so.  It is not alleged that you were the person who ordered the drugs from China.  The prosecution do not allege that you knew what the drug was, or its weight, but rather that you were aware that it was likely the parcels contained a drug of dependence. 

Charge 2

15On 9 July 2019 a grey 2017 Maserati Levante valued at $159,000 was stolen in the course of a burglary in Wheelers Hill.  At some point later you took possession of that vehicle.  It was observed in the driveway of your home on 26 July 2019, with cloned plates attached.  A cloned plate is a registration plate which belongs to a vehicle of the same type and colour.  Later that day, and again on 7 August 2019 you were observed driving that car.

16On 7 August 2019 the car was impounded by police and when searched it had the cloned plates attached, and your debit card and mobile phone inside.

Charges 3, 4, & 5

17On 12 September 2019 the larger investigation wound up, in the course of which your home was searched.  In the course of the search police located a number of relevant items, including:

(i)five mobile phones,

(ii)two press-seal bags containing white powder,

(iii)two keys for a Mercedes vehicle,

(iv)a set of Victorian Registration plates, and

(v)a white Mercedes Benz AMG GLC344, with cloned registration plates attached

18The white Mercedes had been stolen from a business in Vermont on 29 August 2019.  At the time it was stolen it was valued at $117,000.  When found at your home on 12 September 2019 it had suffered extensive damage.  Your possession of this stolen vehicle is the subject of Charge 3.

19The key found in the search belonged to a black Mercedes, which was also in your possession.  This car had been stolen on 1 July 2019, and was valued at $75,000.  This is the subject of Charge 4.

20These charges of theft are based upon your later possession of the vehicles, not on the basis that you were the original thief.

21Charge 5 relates to the two press-seal bags of white powder found in the search.  These were analysed and found to contain 16.1 grams and 0.3 grams of cocaine.  The total quantity was therefore 16.4 grams.  A trafficable quantity of cocaine is 3 grams.  You are charged on the basis of possession of this trafficable quantity, for sale.  There is no evidence of you actually selling the drug.

22At the time Charges 2 to 5 you were on bail, and you have pleaded guilty also to the summary charge of committing an indictable offence whilst on bail.

23As well as being on bail, Charges 2 to 5 were committed whilst you were subject to a CCO which had been imposed on 28 March 2019.  The fact that you were on that order, and also on bail for some of the offending, is relevant to your prospects of rehabilitation.  As I am also sentencing you for committing an indicatable offence whilst on bail, I will not treat your being on bail as aggravating the offending.  In respect to the CCO, that charge has been proven and no further order or penalty was imposed.  I will treat the fact that you were on the order as aggravating your culpability for offences 2 to 5.

Personal Circumstances

24Your family is Lebanese in origin, but you were raised in the Craigieburn area.  You have an older brother and two younger siblings.  Your father worked in construction and as a taxi driver. He was involved in Lebanese politics and was a regular visitor to that country.  In 2008, when you were 8 years old, he was murdered whilst he was in Lebanon.  Your counsel describes your childhood as being surrounded by violence and that you self-harmed when still in primary school.  Your mother and older half-brother fought, and you report witnessing violence between them more than once. Your own emotional state and behaviour deteriorated.

25Your mother wrote a letter to the Court describing your close relationship with your father and the significant effect on your life from his death.  You tried to help her with your younger siblings.  You really felt the absence of your father and missed the guidance he could have provided.  You were bullied at school, and never felt good enough.  Your sister has described your care and help to her and your family all your life, particularly with your mother working hard to support you all. 

26Your mother has a long history of depression, and was profoundly impacted by the death of your father.

27You experienced learning difficulties throughout school.  The death of your father exacerbated the troubles you had learning.  You also report that being a Muslim meant that you were targeted and harassed, leading to fighting.  Mr Newton noted that you reported problems with concentrating and behavioural regulation consistent with ADHD, although no formal diagnosis has been made.

28The issues plaguing your primary school experience continued into secondary school, growing worse as you entered your teens.  You were disruptive, and often in conflict with other students.  You were suspended and truant repeatedly.  You started to abuse illegal drugs whilst still in high school, and to commit offences.  You began to associate with members of an OMCG, which led to more drug use and offending.

29You left school in Year 9, and started a pre-apprenticeship course at TAFE.  You have worked as an electrical contractor, but it is not clear if you are qualified formally.[2] 

[2]Report of Mr Patrick Newton, clinical and forensic psychologist, dated 5 February 2022, [17] (Report by Mr Newton)

30I was told you began spending time with Mr Luzza in 2018, and you were with him when you committed offences in August 2018, using stolen credit cards.  You were associated with senior OMCG members and believed them when they told you that you were part of the family.  You were assaulted some time before August 2019, and were in hiding at your brothers home.  I was told it was because you were in fear of further attack that you were driving around in different cars, for which you had paid low sums of money.  You accept you knew they were probably stolen.

31At the time of this offending you were employed full time, as an electrician, and you plan to continue working in that area.  Letters were provided from a past employer and a person whom you met through your work who is willing to offer you work.  Your past employer, Mr Kurdi, noted the improvement in your presentation and performance when you were on bail, and entrusted you with a leadership role in which you did very well.  Mr Chugha was sufficiently impressed with you to ask you to join his business and you were looking at getting additional qualifications to do that.  Other co-workers have written of the support you provide to your colleagues, and your work ethic.

32In your first period of remand, you completed 12 modules aimed at personal improvement and developing better life skills.  Despite your objections you were placed in protection.  You described to Dr Grech your difficulties whilst on remand, particularly due to the pandemic.  You felt isolated and courses had been cancelled.  You had been placed at Ararat and found being near sex offenders to be upsetting.

Drugs

33You started using drugs when you were around 14.  You enjoyed how the drugs made you feel, and they made you forget your internal distress and life problems.  You felt that using impressed your peers, giving you kudos and attention.  Despite negative experiences of transient hallucinations and paranoia you were not motivated to cease taking drugs.[3]  Your use of drugs increased from the age of 15, in the context of you spending time with more anti-social associates. An older associate introduced you to using methylamphetamine and Xanax.  You then began to use GHB regularly.  Later in your teens you replaced use of ice with cocaine, and report that in 2019 you were abusing cocaine, Xanax and GHB at “extreme” levels as well as whatever other drugs came your way.[4]

[3]Report of Mr Newton [21]-[22]

[4]Report of Mr Newton [24]

34You explained to Mr Newton that you committed the offences before me to support your drug habit, and because of your involvement in a drug using and criminal circle, as well as committing offences whilst drug affected.[5]

[5]Report of Mr Newton [31]

35You report that since you were arrested in September 2019 you have not used drugs.[6]  You engaged with counselling through AIR14 in 2020 and reported that you are keen to return to a treatment program when you are released from custody.[7]

[6]Report of Mr Newton [25]

[7]Report of Mr Newton [28]

36The report from AIR14 referred to your motivation to change your behaviour, and you understanding that you needed support through that process.  Between August and December 2021, you participated in the intensive 14 day program and the follow up sessions.  You provided 19 supervised urine screens all of which were negative.  You were attending a daily 12 step recovery program, and did volunteer work at that type of meeting.

37This was really positive progress for you.  Mr Newton considered you have suffered from a severe substance use disorder, which at the time of his interview with you was in remission in a controlled environment, and that whilst you had some insight it was superficial.[8]

[8]Report of Mr Newton [50], [52]-[53]

Mental Health

38A report was provided by Dr Paul Grech, whom you attended for counselling for nine sessions between 16 April 2019 and 10 September 2019. 

39Dr Grech considered that you may suffer from ADHD.  He noted you have a history of poor concentration and impulsivity as well as bipolar patterns in your mood.[9]  You are also a person at increased risk of an anxiety or depressive disorder.[10]  Dr Grech noted that you also display traits of ambition, and a sense of responsibility for your siblings and mother.[11]  Dr Grech considered that the bipolar aspects and ADHD symptoms, which were only recently being addressed in 2019, will have negatively impacted your ability to manage or control your behaviour.[12]

[9]Report of Dr Paul Grech, clinical psychologist, dated 20 April 2020, page 3 (Report of Dr Grech)

[10]Report of Dr Grech, page 4

[11]Report of Dr Grech, page 4-5

[12]Report of Dr Grech, page 6

40Dr Grech said that you were making “incremental progress” up to the time of you being remanded.[13]  You had been prescribed medication for your mental health but did not take it, due to an adverse effect on an occasion. [14]

[13]Report of Dr Grech, page 1

[14]Defence Plea Submissions, dated 4 February 2022, [23]

41You were assessed by Mr Patrick Newton in January and February 2022.  Your presentation there was generally positive, despite issues you had about being placed in protection and near prisoners such as sex offenders.  You expressed an ongoing sense of loss regarding your father, but Mr Newton considered you have passed the acute grief phase.  You expressed no intention or urge to self-harm.  No symptoms of anxiety or depression were noted, nor of any other disorder, save for features suggestive of ongoing ADHD.  Mr Newton considered that it is probable that you suffered from both ADHD and a conduct disorder in your developmental years, and that the impacts of ADHD persist.[15]  Furthermore, your emotional regulation is poor – you have powerful emotions but difficulty in dealing with or expressing them. The ADHD affects your decision making, and communication skills. Mr Newton considered that you are still immature[16] and that your reasoning process are unsophisticated and often self-defeating.

[15]Report of Mr Newton [33]-[37]

[16]Report of Mr Newton [43]

42Furthermore, Mr Newton noted your cynicism and selfish value structure, and his concern that further imprisonment would exacerbate these traits.[17]  He considered you have prominent traits of “cluster B” personality disorders, which include Antisocial, Narcissistic and borderline types.[18]

[17]Report of Mr Newton [45]-[46]

[18]Report of Mr Newton [47]

Criminal Record

43Your criminal record commences in May 2017, in the Melbourne County Court.  You were at that time 17 years old.  The charges include trafficking cannabis, 7 charges of theft, 5 charges of theft of a motor vehicle, 6 charges of burglary and 6 of attempted burglary.  A 6 month Youth Supervision Order was imposed, with a requirement for you to attend counselling.  Later that month you were sentenced in the Children’s Court for charges including reckless conduct endangering serious injury, 2 charges of handling stolen goods, 4 charges of burglary, 4 charges of theft one of which was of a motor vehicle.  An 18 month Youth Supervision Order was imposed for this offending.

44Thereafter in 2018 you were before the courts twice, for offences including aggravated burglary and 9 charges of theft of which 3 related to a motor vehicle.

45On 28 March 2019 you received a 12 month CCO, which included orders for assessment and treatment re drug dependency, and your mental health.  The offences were of dishonesty and possession of MDMA and a steroid.  You were subject to this CCO at the time of committing Charges 2 – 5.  On 14 May 2021 a charge of breaching this CCO was found proven.

46You also committed offences on 17 February 2019.  You were driving whilst disqualified in an unregistered car.  You had in your possession a pre-cursor chemical (iodine) and 8 MDMA tablets.  You were bailed on 28 March 2019, and it was this bail you breached by committing Charges 2 to 5.  You were sentenced in October 2019, and on appeal in November 2019 the same sentence, seven months  was imposed.

Matters Raised on Plea

Plea of Guilty

47The charges against you were resolved on the basis to which you have pleaded guilty at the time of the committal hearing, in May 2021.

48Your plea of guilty was entered at the committal hearing, where extensive negotiations took place with all the parties.  I will treat it as having been entered at a relatively early stage.  The utilitarian benefits of the pleas are significant, particularly so in the context of the pandemic and the effects of lockdowns on the operations of the court.  Your pleas of guilty give rise to real mitigation of your sentences.[19] 

[19]Worboyes v R [2021] VSCA 169

Custody Conditions

49Despite your requests to be placed in mainstream, you were placed in protective custody.  You were on remand at Ararat.  Your conditions on remand were also affected by the pandemic with reduced time out of cell, increased lockdowns, reduced or no programs, and no face to face visits. I accept that custody during the pandemic has been more onerous.

Youth

50You are now 22 years and 7 months old.  It was submitted that in view of your age I should give increased emphasis to promoting your rehabilitation.  You are not a person appearing before the courts for the first time for behaviour which was an aberration in your life.  On the other hand, you were still only 19 and 20 at the time of the offending, and immature.  I will give some weight to this factor in mitigation, although reduced by reason of your history and the gravity of the offending.

Bugmy

51I accept that the trauma you were exposed to as a child had and has an effect on your development and ability to make good choices, and that your early commencement of drug use was impacted by this.  I also accept that you were feeling lost and were thus attracted to the friendship and sense of belonging offered by your criminal associates.  This is a factor which carries real force in mitigation. 

52The other side of the coin is that the issues that led to your offending are entrenched and difficult to address, impacting your prospect for rehabilitation.

Rehabilitation

53Mr Newton considered that you were at moderate risk of relapse into drug use, and that you needed treatment and support for the ADHD, and to change your associates and ways of living.[20]  Your bail conditions were difficult, as was attempting to work and undergo treatment during the pandemic, but you were not in a restricted environment such as a residential rehabilitation facility.

[20]Report of Mr Newton [66]-[69]

54You made a worthy effort whilst on bail to address your drug abuse and mental health issues.  You were making progress in that area before being remanded in custody again.  I consider that you have somewhat guarded prospects of rehabilitation.  The progress you have made is good, but the underlying issues you need to address are profound. 

Parity

55Luzza has pleaded guilty to the offence of attempting to possess a drug of dependence in respect to 4 transactions as the person who arranged the drugs to be sent from China and who arranged for you and others to collect them.[21]  Two of the parcels within Luzza’s charge of attempting to possess a drug of dependence are the two parcels that are encompassed by Charge 1 on your indictment.  I have yet to sentence Mr Luzza.  He, like you, has prior convictions for dishonesty, but he was older than you and he was the  primary actor regarding these transactions.

[21]Note the prosecution submissions state at [3] that Luzza’s Charge 2 relates to 5 parcels.  The facts in Luzza’s matter were amended so that 4 parcels fall under that Charge.

56Koray Biricik has pleaded guilty to attempting to possess the second parcel I have described at paragraphs 11 to 15 above.  On that charge I sentenced Biricik to 5 months’ imprisonment.  Mr Biricik had no prior court appearances and was under your direction in respect to the collection of the parcel.  He was a little older than you, but younger than Mr Luzza.

57You also enlisted Mr Sasulu in attempting to take possession of the other parcel.  Mr Sasulu has not been dealt with for his role, as he was deported.

Totality

58The offending for which I will sentence you occurred in February, August and September 2019.  Charge 1 was offending of a very different nature to the other charges.  The sentences I impose will reflect the individual offences, and I will make some orders for cumulation so as to achieve a total effective sentence which reflects the total criminality. 

59You were remanded in custody on 12 September 2019 and bailed on these matters on 15 May 2020.  During that period 246 days (8 months and 3 days) you were serving a sentence between 16 October 2019 to 5 April 2020 (172 days ie 5 months 20 days), for the offences committed in February 2019.

60You were remanded on new offending in November 2021, whilst on bail for these matters.  You were bailed on those new charges on 8 December 2021.  Your bail on the matters before me was revoked on 16 December 2021.

61It was submitted that the sentence you served in 2019 to 2020, and the 21 days of remand on the new matters are relevant to the totality of the sentence I impose. 

62The offending for which you were sentenced in October 2019 was possession of iodine, a pre-cursor chemical, possession of MDMA, driving whilst disqualified and driving an unregistered motor vehicle, committed on 21 February 2019, that is after Charge 1 on the present indictment.  I will give some allowance to the other times you have spent in custody to which I have referred, but also take into account that if you were sentenced for that offending at the same time as the offending before me there would have been a degree of cumulation.

Conclusion

63It is a positive thing that you accept that your offending was serious, that you are now addressing the causes of your offending, and are committed to making positive changes for your future.  Whilst your insight so far is not deep, it is important that you have identified the need to change.

64I must take into account both your offending and your personal circumstances and factors in mitigation.  I must give weight to the purposes of general and specific deterrence, as well as denunciation, protection of the community and the imposition of just punishment.

65Your counsel’s principal submission acknowledged that the likely sentence you would receive would be a sentence of imprisonment with a non-parole period.  He submitted that the time you had spent on remand so far would be close to the appropriate non-parole period, and that I should set a longer than usual parole period to promote your rehabilitation. 

66I had you assessed for a CCO so that option would be available to me if I thought it appropriate.  I must impose a sentence only as severe as is required to meet the sentencing principles and purposes.  I have concluded, however, that a combination sentence is inappropriate in your circumstances and in view of the offending.  I consider that your prospects for rehabilitation will be better aided by a parole period than a CCO.

67The sentences are as follows:

·On charge 1, attempting to possess a drug of dependence, 12 months;

·On charge 2, theft of the Maserati, 12 months;

·On charge 3, theft of the Mercedes, 9 months;

·On charge 4, theft of the Mercedes, 8 months;

·On charge 5, trafficking cocaine, 9 months; and

·On summary charge of committing an indictable offence on bail, 2 months

68The orders for cumulation will be as follows. Charge 1 is the base. Two months of the sentence on Charge 2, two months of the sentence on Charge 3, one month of the sentence on Charge 4, two months of the sentence on Charge 5 and one  month of the sentence on the summary offence will be served cumulatively upon each other and upon the sentence on Charge 1.

69By my calculations that leads to a total effective sentence of one year and eight months.

70I set a non-parole period of 20 months.

71I declare pursuant to s18 that you have served 220 days of pre-sentence detention and I direct that that declaration be entered into the records of the court.

72Pursuant to s6AAA I state that if you had not pleaded guilty, I would have sentenced you to three years and six months imprisonment with a non-parole period of two years.

73I will not make an order on your licence as I have formed the conclusion that having your licence further suspended would impact your ability to work and get your life back on track.

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