Director of Public Prosecutions v El Kobaili

[2017] VCC 280

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00897

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAMDAM EL KOBAILI

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 March 2017
CASE MAY BE CITED AS:	DPP v El Kobaili
MEDIUM NEUTRAL CITATION:	[2017] VCC 280

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y.K. Hardjadibrata	Office of Public Prosecutions
For the Accused	Mr T. Magazis	Magazis & Associates

HER HONOUR:

1Hamdam El Kobaili, you have pleaded guilty to trafficking in methylamphetamine.  You have also agreed to having a relevant summary offence being dealt with by me and pleaded guilty to that offence, namely possession of the proceeds of crime.  The maximum penalty for the trafficking offence is 15 years and for the summary offence is two years.

2In June 2015 police commenced a covert operation concerned with drug trafficking activities of you and your co-accused Kaled Aychee.  Investigations reveal that you were supplying Aychee with methylamphetamine, regularly travelling from Sydney to Aychee's home in Melbourne.  Between
25 September 2015 and 24 October 2015 you travelled between those cities on eight occasions and you stayed for differing, though very short, periods of time in Melbourne.  Investigators also monitored your mobile phone.  You were in frequent contact with Aychee over that relevant period, discussing or organising meetings and the details regarding times.

3On 29 October 2015 you were intercepted by police at Tullamarine after you had arrived on a flight from Sydney.  You were searched and a clear snap lock bag containing a white crystal substance was located, wrapped inside a sock in your bag.  This substance was methylamphetamine and weighed 276.5 grams with a purity of 82 percent.  This amounted to 226.73 grams of pure methylamphetamine.  I note that under Part 3 of the relevant Act, a commercial quantity of this drug in its pure form is 100 grams though in a mixed form is 500 grams.  Your travel bag was empty apart from the drugs and contained no other items that would explain you travelling to Melbourne.  You also had a sports bag which had it in $694 cash.  This cash is the subject of the summary charge. 

4Later that day police attended at and searched Aychee's home.  He was also arrested.  You were both remanded in custody on 29 October 2015.  You were granted bail on 15 January 2016 and have therefore spent 79 days in custody.

5You were born on 1 September 1991 and are currently aged 25.  Your parents are of Middle Eastern background and you have four siblings.  You married your wife in 2015 and are expecting your first child later this year.  You have a supportive family, your wife was present with you in court.  I was informed that of recent times one of your brothers has struggled to overcome leukaemia and another brother experienced a psychotic episode and attempted suicide.

6You grew up in Bankstown in Sydney's West and attended school there, though you struggled with your studies and required special assistance with learning.  After leaving school you commenced an apprenticeship in carpentry though this was not completed as you were incarcerated in April 2010 for what was described by the sentencing judge, as objectively, a particularly serious example of affray.  I note you were aged 17 at the time of that offending and you were released from adult gaol in April 2013.  On your release from custody you were placed on a disability pension, assessed as having a mild intellectual disability.

7I was provided with a report from forensic and consultant psychologist, Dr Ian McKinnon, dated 5 March 2017, Exhibit 3.  You reported to Dr McKinnon that you started smoking cannabis when you were aged about 15 and that you soon thereafter moved on to use cocaine and then to smoking methylamphetamine.  You also indicated you had used other illicit substances and you also revealed your father had used ice. 

8Your counsel submitted that your mental state was such that at the time of the commission of this offending, that all limbs of Verdins applied and both specific and general deterrence should be moderated, if not eliminated.  Further reliance was placed on the limb of Verdins regarding your mental health being such that incarceration would be more burdensome for you.

9In addition to Dr McKinnon's report your counsel relied on the report of psychiatrist, Dr Olav Nielssen, dated 25 May 2015, Exhibit 2 and a report from Dr Jacqueline Youssef, described as a mental health specialist social worker dated 12 December 2016, Exhibit 1. 

10Dr McKinnon opines that during the period of your offending you were probably suffering from symptoms that met the clinical criteria for the following major diagnosable psychological disorders, (1) Substance abuse disorder and (2) an unspecified psychotic disorder.  Reference was made in Dr McKinnon's report to an assessment by Dr Olav Nielssen that at that time, some five months before the commission of this offending, you met the diagnosis of a probable emerging psychotic illness.  Also it noted, in Dr McKinnon's report, that you were not forthcoming to Dr Nielssen about your drug use at that time. 
The validity of that opinion is therefore questionable.

11Counsel for the prosecution submitted that the material tendered on your behalf was insufficient to establish the application of Verdins, particularly as at the time of your offending.  The competency and/or qualifications of Dr Youssef was questioned particularly as to the source of her opinion that you had PTSD, depression, anxiety and psychotic features of schizophrenia.  I accept that criticism of that aspect of the material, as although you have obtained a benefit from counselling with her, the basis of some of her material is not properly established in the evidence before me.

12The material in Dr Nielssen's report is limited in the manner set out above.
I do, however, accept that you have a history of depression and anxiety though I am not satisfied on the material before me that you were suffering a mental condition such as to reduce your moral culpability at the time of the commission of these offences, namely in October 2015.  Your offending does, however, need to be seen in the context of those conditions with the use by you of substances at that time. 

13I do accept that your mental health has deteriorated, and required you to be hospitalised in December 2016 and that your mental health is such that imprisonment will be more burdensome for you than others.

14You have a number of prior convictions, most relevantly in 2014 in New South Wales relating to drugs or the supply of cannabis, but you also have some priors for driving offences.  You were sentenced to community service in respect of those drug offences, which was breached in October 2015 and you were sentenced to nine months' imprisonment, suspended upon you entering into a bond.  I note that this offending occurred only weeks after that sentence was imposed at Bankstown Magistrates' Court on 15 October 2015.  (See also the CCO report dated 10 March 2016).

15The other prior conviction that you have of note is for affray and damage by fire on 30 August 2012 in the Supreme Court of New South Wales referred to previously.  You were sentenced to a term of three years to serve with a two year parole period.  Your record reveals the imprisonment period concluded in April 2013 with a two year parole period commencing at that time.

16Given your prior history and your breach of a previous court order, specific deterrence is a relevant sentencing consideration in your circumstances. 
As previously indicted you were arrested on 29 October 2015 and released on bail on 15 January 2016.  Whilst on bail you successfully completed the CISP program and I was provided with two reports dated 12 April and 19 May 2016.  These both provided positive information that augur well for your rehabilitation.  It is noted in the report,

"Since commencing this CISP program, Mr El Kobaili has exhibited positive motivation throughout the CISP period.  He has attended appointments and been highly active and engaged in counselling treatment and case reviews with the writer.  He has taken advantage of his rehabilitative opportunities to make significant lifestyle changes around his substance and underlying issues. 

He has been able to change his lifestyle and been able to adapt with obstacles and/or problems of everyday life without reverting to drug use.  Alcohol and other drug counselling, psychological counselling and undertaking urine analysis screening has educated Mr El Kobaili to break the addictive cycle and establish abstinence".

17The CISP material also speaks positively about your completion of a Certificate III in construction and water-proofing and your related employment prospects as well as the support of your wife and family.

18You have not committed any further offences during the period whilst you have been on bail and in the community.  You have more recently had significant mental health issues and you were an involuntary patient at Bankstown-Lidcombe Hospital on 13 December 2016 (see Exhibit 4).

19Your counsel submitted the principles of parity did not apply in respect of the sentence I imposed on Mr Aychee relying on the following factors.  You are aged 25 and he was aged 33.  Your prior history is less extensive.  Mr Aychee pleaded to two counts of trafficking and possession.  Material at Mr Aychee's home revealed a relatively sophisticated operation.  The prosecution did not suggest that parity applied.  I accept because of the matters outlined parity does not apply.

20I take into account your early plea of guilty.  You have pleaded at the earliest opportunity and there is a significant utilitarian benefit in the plea.  Saving the community the cost and inconvenience of a trial and avoiding the need for witnesses to give evidence.  Your plea is also indicative of your acceptance of responsibility for your actions and cooperation with police and shows a willingness to facilitate the course of justice.  I also accept your plea is indicative of remorse.  This was expressed by you to Dr McKinnon and is also consistent with the material in the CISP reports.

21Your counsel submitted your rehabilitation prospects were good relying on your successful completion of CISP, family support, abstinence from drug use since being released from custody over a year ago and employment prospects. 
The prosecution submitted your rehabilitation prospects were reasonable. 
I accept that you have good rehabilitation prospects but I am somewhat cautious given your drug history.  You have had an extended period both drug and offence free and I accept you have an extra motivation now that your wife is expecting a baby.

22Your counsel highlighted the following features of your offending.  It was of limited duration, one day.  Your role was as of a courier or for bringing drugs to Mr Aychee for him to sell.  The amount of funds the subject of the summary charge was small, not consistent with a sophisticated operation and this offending occurred in the context of mental health and substance abuse issues.

23On any scale, trafficking is a serious offence given the societal problems that any drugs cause.  Trafficking of any drugs affects the health and lives of many in the community and the impact of the availability of illicit substances on the community cannot be underestimated.

24Principles of general deterrence are important to this kind of offending. 
Those who engage in the business of trafficking drugs should be aware that if they are caught they will be severely punished.  The community demands denunciation and just punishment for this kind of offending.

25The prosecution submitted that a term of imprisonment was warranted and that you should be required to serve a period of imprisonment additional to that which you have already served, namely approximately two and a half months.  The prosecution conceded that a sentence of a term of imprisonment with a community correction order to be undertaken at the end of that term was within the range of sentencing options available to me. 

26Your counsel submitted you should be placed on a community correction order so as to continue with the positive steps that you have undertaken towards your rehabilitation.  Your counsel relied upon the combination of factors including your plea of guilty, family support including through employment, an extended period of being drug free and the positive progress you have made since your release from custody in January 2016 to date in support of that submission.

27In response to an enquiry from me, I was informed there was no difficulty with a community correction order being imposed even though you reside in New South Wales.  I had you assessed by the Office of Corrections who reported you as being a medium risk of re-offending.  You were deemed suitable to undertake a community corrections order with conditions regarding drug and mental health treatment and rehabilitation and also supervision. 

28The report indicates that contact was made with the acting manager at Bankstown community corrections who advised that he would be willing to informally supervise you for the duration of any order that I impose.  However it was noted that there could not be a community work condition on such a CCO as work conditions are not transferrable interstate.  Ordinarily a work component is seen as part of the punitive element of the sentence or order imposed.  If you could stand up please, Mr El Kobaili.

29Taking all relevant sentencing matters into account I am prepared to place you on a community correction order with those conditions recommended.  I do so with some reservation given the serious nature of this offending.
 However I am satisfied that you have made good progress since the time you have been released from custody and also take into account that you have spent a period in custody in relation to this matter of about two and a half months.

30In respect of Charge 1, trafficking in methylamphetamine, you will be placed on a community correction order for a period of two years with the conditions as recommended in the report.

31In respect of the summary matter, you are convicted and fined $200.

32I make the relevant orders for forfeiture and disposal and also a forensic sample.  I have signed one copy of each of those orders that was provided to me this morning.  The s.464 order being one drafted where a term of imprisonment is not imposed. 

33Mr El Kobaili, I have to inform you that if at the time the request is made for you to provide a sample, if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police can use reasonable force to enable that forensic procedure to be conducted.

34To be clear, Mr El Kobaili, in respect of the community correction order the conditions relate to drug treatment and rehabilitation, mental health treatment and rehabilitation and supervision.  From what I can understand from this report you will be required to - now this says the appointment's today in Sydney.

35MR MAGAZIS:  Today at 2.00 pm, Your Honour.

36HER HONOUR:  I think - I will ask my Associate, I think, to contact the relevant correction authority to indicate - is he going back there tomorrow?  Is he going back tonight?

37MR MAGAZIS:  I can seek instructions as to when ‑ ‑ ‑ 

38HER HONOUR:  Yes please, thank you.

39MR MAGAZIS:  ‑ ‑ ‑ he's returning.

40HER HONOUR:  It's Carlton CCS but they will have to contact the relevant. 
I will give you this in a minute.  The other thing, Mr El Kobaili, you have been very - I feel I am taking a bit of a risk with you.  I am concerned principally about your drug history and your capacity to be able to remain drug free.  If you breach this order you will come back before me and I will have no hesitation in placing you in custody, all right?  This is giving you another chance.  You have had quite a long period in custody in relation to the other matter.  I understand it is not the same kind of matter but it was a very, very serious matter, the other matter. 

41As I said I have a level of confidence because you have done all right over the last year or so but you need to continue to do so and stay out of trouble, all right?

42OFFENDER:  I'm, I'm a different man and I won't let you down.

43HER HONOUR:  I am sorry?

44OFFENDER:  I said I'm a different person and I won't let you ‑ ‑ ‑ 

45HER HONOUR:  All right well let us see.  That will be good.  Do I need to do a s.6AAA if it's just a CCO?

46MR HARDJADIBRATA:  Yes, Your Honour.

47HER HONOUR:  If you had not pleaded guilty to this matter, Mr El Kobaili,
I would have sentenced you to a term of imprisonment of 15 months.  Are there any other matters Mr ‑ ‑ ‑ 

48MR HARDJADIBRATA:  No, Your Honour.

49HER HONOUR:  Thank you.  Look I will go off the Bench.  I will just wait outside, thanks.

50(Short adjournment.)

51HER HONOUR:  What I have done, Mr Magazis, is in the order is that
Mr El Kobaili will have to report to Carlton and then they can make the arrangements ‑ ‑ ‑ 

52MR MAGAZIS:  Yes, Your Honour.

53HER HONOUR:  ‑ ‑ ‑ as to the New South Wales situation. 

54MR MAGAZIS:  He hasn't made arrangements to return back to ‑ ‑ ‑ 

55HER HONOUR:  He has not?

56MR MAGAZIS:  No.

57HER HONOUR:  No that is what I thought.  That is why I thought it was probably easier just to do the Carlton one.  If you could - yes thank you.

58ASSOCIATE:  Mr El Kobaili, could you stand please.  The order will last for two years and commence on 21 March 2017 and ends on 20 March 2019. 
You must attend at Carlton community correctional services at 444 Swanston Street, Carlton, within two clear working days after the (indistinct words). 

59The (indistinct words) that applies to all community corrections order are that you must not commit another offence for which you can be imprisoned during the time that the order is enforced.  You must comply with any obligation or requirement which (indistinct words) sentence (indistinct words) in relation to (indistinct words).

60You must report to and receive visits from the Secretary (indistinct words). 
You must report to the community corrections centre within two clear working days of your (indistinct).  You must let a community corrections officer know within two clear working days (indistinct) changing your address or job. 
You must not leave Victoria without first getting permission to do so from the Secretary or delegate.  You must obey all lawful instructions from and directions of the Secretary or delegate.

61The conditions that apply (indistinct words) are supervision.  You must (indistinct words) with community corrections officer (indistinct words).  Should you (indistinct words) undergo assessment and treatment for (indistinct), drug and alcohol (indistinct words) matter.

62You must undergo any mental health assessment and treatment that may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility as directed by the (indistinct) manager. 

63That's (indistinct words) all done.  I'll just (indistinct words).

64HER HONOUR:  Thank you.  I will stand down.

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