Director of Public Prosecutions v El-Khoury
[2011] VCC 897
•6 July 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00166
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ELIE EL-KHOURY |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 June 2011 | |
DATE OF SENTENCE: | 6 July 2011 | |
CASE MAY BE CITED AS: | DPP v El-Khoury | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 897 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty - trafficking in a drug of dependence – cannabis – theft of electricity – No criminal record – Prisoner suffers from depression - No connection between offending and mental state
Legislation:Crimes Act 1958
Sentence:Total Effective Sentence of 12 months’ imprisonment wholly suspended for 2 years – s.6AAA Sentencing Act 1991 declaration – Ancillary orders including Compensation Order
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr S. Milesi | Mr C. Hyland, Solicitor for Office of Public Prosecutions |
| For the Accused | Mr P. Marin | Valos Black |
HER HONOUR:
1 Elie El Khoury, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely, cannabis, between 16 April 2010 and 16 June 2010 and one charge of theft of electricity between those same dates.
2 The maximum penalty in respect of Charge 1 is fifteen years’ imprisonment and the maximum penalty for Charge 2 is ten years’ imprisonment.
3 The following matters were opened by the Learned Prosecutor, upon your plea:
4 On 16 June 2010, at approximately 12.55 pm, police attended 12 Cutler Court, Lalor in response to a reported house fire. The single storey premises had been severely affected by fire and was being extinguished by the Metropolitan Fire Brigade. The fire was deemed non-suspicious and was caused by a fault in the ordinary wiring at the premises. No person was home at the premises at the time of the police attending. In the driveway of the premises was a van registered to you.
5 Police were informed that there was an hydroponic cannabis crop growing inside the house. Attending police located twenty-one large cannabis plants measuring between 1.0 and 1.3 metres being grown hydroponically in two bedrooms of the house. In a third bedroom were two medium-sized cannabis plants in pots and thirty-four cannabis seedlings in trays. A fourth room contained equipment for the hydroponic system.
6 The first bedroom of the house contained twelve assorted high voltage light bulbs, ten lampshades, a silver fan, an electrical timer, one charcoal filter with black piping, twenty-four black plastic pots, nine transformers, one power box and two water pumps.
7 The second bedroom contained two power boards, six high-voltage lights, three fuse boxes, eight electrical transformers, one high-voltage light and shade, one pesticide pump, one black box containing six water pumps and two timers.
8 The third bedroom contained one green box containing four high-voltage light bulbs and three electrical timers and one digital timer, five silver lightshades with globes, one charcoal filter with black piping, fourteen black plastic buckets and one piece of black plastic.
9 A fourth bedroom contained twenty-six electrical transformers.
10 The kitchen contained ‘How to grow indoor hydroponic marijuana’ documents, assorted garden chemicals, 4-phase testers and a set of digital scales and personal papers in your name.
11 Also located at the address was an un-authorised electrical bypass situated in a roof cavity. This was set up so that the hydroponic equipment and lights could be operated without going through the house mains metering system.
12 Based on the items that were connected to the electricity bypass, it is estimated that 270 kilowatt-hours of electricity per day would be used. For the period 16 April 2010 to 16 June 2010, this would be a total of 16,287 kilowatt-hours of electricity to the value of $3,831.13. With other associated costs, the electricity supplier lost revenue of $4,789.93.
13 The cannabis was analysed and weighed by Kylie Slattery, botanist, of the Victoria Police Forensic Services Centre and consisted of thirty-four small plants weighing 30.7 grams, excluding roots (item 1), two medium plants weighing 166.4 grams, excluding roots (item 2) and twenty-one large plants weighing 57.1 kilograms, excluding roots (Item 3). This is a total of fifty-seven cannabis plants weighing 57.3 kilograms.
14 Ms Slattery estimated that the leaves and flowering heads of the twenty-one large plants constituted approximately 26.9 kilograms, and this would equate to an approximate air dried weight of 6.7 kilograms.
15 The premises at 12 Cutler Court, Lalor were rented by you with a Lease commencing on 10 January 2008 and the rent was $500 per week.
16 On 18 June 2010, you attended Mill Park Police Station with a solicitor and participated in a video recorded interview conducted with the aid of an interpreter.
17 You stated you had been renting the premises and admitted to cultivating and possessing the cannabis. You stated that a male by the name of Mohamed Khoder had approached you to use the premises to grow cannabis. You said you had agreed to feed and water the plants for a fee of between $5,000 and $6,000. You stated that ‘Mohamed’ had visited and observed the crop ‘every month or so’.
18 Statements from neighbours indicate the regular presence of two males at the address and they presumed they both lived there.
19 You stated that you had no intention of harvesting the plants, and did not cut or trim them at any time. You said that ‘Mohamad’ had instructed you not to ‘tell anyone outside this door’ and told you ‘not to peep or they would come and take you’.
20 You said the plants and equipment had been set up by Mohamad from seeds about a month and a half earlier.
21 You said that ‘Mohamad’ told you the cannabis would be 10 or 11 kilograms and you were told it would be sold.
22 You stated that you knew your actions were wrong, and described yourself as desperate for income in relation to supporting your children and yourself and displayed genuine remorse. You stated that during the period you were a user of cannabis and at the time of the interview were taking anti-depressant medication.
23 The quantity of the cannabis which was found at the premises was not insignificant, given the threshold quantities in respect of trafficable quantity. On any view of it, the quantity which you trafficked was well in excess of the threshold amount of ten cannabis plants, or 250 grams. I was told that the trafficking to which you have pleaded guilty was on the basis of preparation of a drug of dependence for the purposes of trafficking or possession for sale. In your apparently frank record of interview with the police, you indicated that you were told by Mohamad Khoder that he expected the cannabis would be 10 or 11 kilograms when harvested. Accordingly, you knowingly became involved in very serious offending.
24 You had the role of being a sitter of the crop in the house, attending to the plants on behalf of Mr Khoder. At one stage, according to you in your record of interview, you lent money to Mr Khoder to assist in the setup. I must say that I have some difficulty with the proposition that on the one hand you were desperate for money to support your children but on the other you were in a position to lend Mr Khoder money, as well as to afford rental accommodation at $500 per week. It is also somewhat mysterious that you were approached by Mr Khoder, apparently out of the blue, for the purposes of assisting him in his enterprise. However, I sentence you on the basis of the Summary of Prosecution Opening which has been accepted by the Prosecution and you as being the sentencing basis in this matter, notwithstanding some misgivings in this regard.
25 I was told that at the time that you were living in the house, you were suffering from depression and anxiety which had arisen because of your separation from your wife and children some time before. You had moved into the rental accommodation but had apparently not regarded this as an appropriate place for your children to stay . However, subsequently I was told that you had not obtained any formal access arrangements in respect of your children, which was still being litigated in the Family Court.
26 I do accept that as at the time that you engaged in this criminal offending, you were suffering from depression and anxiety arising from your marital breakdown and separation from your children. However, having read the report of Dr Cunningham and heard submissions from your counsel, I am not satisfied that there is a causative link between your offending and any impairment of mental functioning that you were suffering at that time. For one thing, you were being medicated in the form of Valium at the time that you were offending and whilst you may have been more susceptible to the power of suggestion from people such as Mr Khoder and your decision-making may have been impaired, I am unable to find that a link is established so as to warrant a reduction in your moral culpability or moderation in the weight that I would otherwise give to the principles of specific and general deterrence.
27 You are forty-three years old, having been born on 7 March 1969. You have no prior convictions, which is to your credit, and you indicated your co-operation and remorse, as well as a preparedness to plead guilty to these matters from an early stage. Accordingly, you are entitled to a significant discount in relation to your plea of guilty as you have saved the witnesses the time and trouble of giving evidence in your case, as well as saving the community the time and expense associated with running contested proceedings. Moreover, your early co-operation with authorities, demonstration of remorse, lack of prior convictions and exemplary progress since the offending (which is borne out by the CISP Report and other documents tendered on your plea, including the fact that you are receiving ongoing treatment and medication in relation to your depression and anxiety), bode very well for your prospects of rehabilitation. I find that your prospects of rehabilitation are very good and that I need attribute only minimal weight to specific deterrence. However, in offending of this kind, significant weight must be attached to the principle of general deterrence to send a strong message to others who might be thinking of offending as you have, that such behaviour will not be tolerated and will be met with appropriate sanction.
28 Whilst I have not found a connection between your offending and your mental state so as to reduce your moral culpability or to impact on specific or general deterrence, I do take into account in a general sense that you were suffering from depression and anxiety at the time of your offending. Moreover, I accept that your ongoing suffering in this regard, even though medicated and treated, would make time in prison for you more difficult than it would for someone not suffering from such difficulties.
29 It was submitted to me by your counsel that in all the circumstances, a wholly-suspended sentence was warranted in your case. The Prosecution accepted that a wholly-suspended sentence was within the range in order to do justice to the weight which needed to be applied to all sentencing factors in your case.
30 I am prepared to grant a wholly-suspended sentence in light of the significant mitigating features in your case as I believe that such a sentence can adequately reflect the seriousness of your offending and the appropriate weight I must give to all sentencing considerations.
31 Please stand up Mr El Khoury.
32 In respect of the charge of theft of electricity, I make an order for compensation in the sum of $4,789.93 (Four Thousand Seven Hundred and Eighty Nine Dollars Ninety Three) payable to Origin Energy Limited, 360 Elizabeth Street, Melbourne. I note that you have indicated that the Order is not opposed.
33 Further, I make a Disposal Order in the terms sought by the Prosecution – again, the Order sought is not opposed by you and is in respect to the items seized and connected with your offending.
34 I also make an Order pursuant to s.463ZF(2) of the Crimes Act 1958 that you undergo a forensic procedure for the taking of a scraping of saliva from your mouth in accordance with sub-division 30A of PART 3, Crimes Act 1958 on the basis of the seriousness of the circumstances of the offending, the Order is not opposed and I am satisfied that the grating of the Order is in the public interest. Notwithstanding your present lack of opposition to the taking of a sample, I should warn you that if you fail to comply with a request for the taking of sample by an authorised member of the Police Force, then police may use reasonable force to enable the procedure to be conducted.
35 Your counsel submitted that a wholly-suspended sentence in the range of three to six months would be appropriate in your case. The Prosecution did not oppose such a submission. However, in light of the seriousness of your offending and even taking into account all mitigating features, I am of the view that a lengthier period of imprisonment to be wholly-suspended is warranted.
36 Please stand up Mr El-Khoury
37 In respect of the charge of trafficking cannabis, you are convicted and sentenced to eleven (11) months’ imprisonment.
38 In relation to theft of electricity, you are convicted and sentenced to two (2) months’ imprisonment. I order that one (1) month of the sentence imposed in relation to Charge 2 be cumulated upon the sentence in Charge 1 such that the total effective sentence of imprisonment will be twelve (12) months. That period of twelve (12) months will be wholly-suspended for a period of two (2) years. This means that if you re-offend in the next two years and commit an offence punishable by a period of imprisonment, then, unless you can show that exceptional circumstances have arisen which would make it unjust for you to serve the twelve months which I have wholly-suspended, you would be required to serve that period of twelve months’ imprisonment immediately.
39 If not for your plea of guilty, I would have sentenced you to eighteen months’ imprisonment with a non-parole period of 12 months’ imprisonment to be served immediately.
0
0
0