Director of Public Prosecutions v Elakkoumi

[2017] VCC 1476

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01845

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAHAMMED ELAKKOUMI

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2017
DATE OF SENTENCE:	11 October 2017
CASE MAY BE CITED AS:	DPP v Elakkoumi
MEDIUM NEUTRAL CITATION:	[2017] VCC 1476

REASONS FOR SENTENCE
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Subject:  Sentencing; plea of guilty

Catchwords:  Attempt to traffic commercial quantity of controlled drug (MDMA); role limited to transferring contents of imported parcel; youthful offender; drug user; prior criminal history but not as serious as present offending; lost opportunity for parole on previous sentence

Legislation Cited:     Crimes Act 1914 (Cth) s 16A(1) & (2)

Cases Cited:R v Nguyen; R v Pham [2010 NSWCCA 238; Nguyen v R; Phommalysack v R [2011] VSCA 32; DPP v O’Neill [2015] VSCA 325; R v Mangelen [2009] VSCA 63; R v Mills [1998] 4 VR 235

Sentence:                  7 years imprisonment with a non-parole period of 3 years 10 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Barry	Commonwealth Director of Public Prosecutions
For the Accused	Mr J. Saunders	Valos Black and Associates

Pages 1 - 19

 

 

HER HONOUR:

1Mahammed Elakkoumi, you have pleaded guilty to a charge of attempting to traffic a commercial quantity of a controlled drug, namely MDMA. 

2This is a charge under the Commonwealth Criminal Code for which the maximum penalty is imprisonment for life.  Although you will not be receiving a sentence anywhere near that lengthy, life imprisonment is the most severe sentence able to be imposed under Australian laws and that reflects how very seriously offences of this nature are regarded by the Commonwealth Parliament on behalf of the Australian community. 

3You have also admitted to a prior criminal history, to which I shall refer later. 

4The events giving rise to this charge occurred on 24 September 2015 when, together with your co-accused, Mr Rassoul Almandalawy, you collected and transferred a parcel which you believed to contain a significant amount of illegal or controlled drugs.  In fact, the parcel no longer contained such drugs by the time you dealt with it, and that is why the charge is of attempting to traffic such drug.  However, the maximum penalty is no lower because the drugs were no longer present, and the circumstances are no less serious because your intention was to deal with the package believing that it did contain a significant quantity of drugs. 

5A week earlier, a package had been intercepted by Australian Border Force officers after it arrived by post in Australia from the Netherlands, addressed to Gary Shaw at an address in Bank Street, Melbourne.  The package contained 12 glass bottles labelled as pre-packaged bread mix, but which on examination were found to contain a total of just under 8 kg of material which contained the controlled drug known as MDMA, of which 6142.3 g (or 6.143 kg) was pure MDMA.  The legislation sets 500 grams or more as a commercial quantity of that drug, so the package contained more than 12 times the threshold amount for a commercial quantity.  It is estimated that the street value of the drug was in excess of $2 million.

6After interception of the package, Australian Federal Police commenced an investigation as part of which they substituted an inert substance for the drugs and undertook a controlled delivery under surveillance, and with listening devices placed in the package.  On 24 September 2015, an undercover police officer posing as an Australia Post delivery man delivered the consignment to the address where Mr Shaw accepted delivery.  Kept under surveillance, Mr Shaw then drove to Coventry Street, South Melbourne, where he met with a man called Toby Mitchell.  They were together for approximately an hour when they met others and then Mr Shaw returned to this home but was subsequent telephone by Mitchell.

7Later that afternoon, Shaw drove again to South Melbourne where he entered a café where your co-offender, Mr Almandalawy, was present with Mitchell and another man.  That group sat at a table there until a little after 5.00pm when they left.  Shortly afterwards you arrived, having driven there in a black Renault vehicle which had been hired the previous week by Mr Almandalawy.  With Mr Almandalawy driving and you as his passenger, the two of you followed in the Renault while Shaw drove to his home.  You then went into his home where you collected the parcel and returned to the car which Mr Almandalawy had moved to make easy for you to enter.  You entered by a rear door, and sat on the back seat holding the parcel whilst Mr Almandalawy drove to the car park of an apartment block in Lorimer Street, Docklands.   During that drive, you opened the parcel, and unwrapped some of its contents, discussing with Mr Almandalawy amongst other things that it looked different and was supposed to be darker.  You both also discussed the possibility of there being a tracking device or surveillance, and you said that you alone were to enter the car park so if anything happened, it would only be one. 

8At the entrance to the car park, you swapped to the driver's seat and whilst
Mr Almandalawy waited outside, you used a pass to gain access to the car park and drove into it, parking beside a Toyota Corolla car which was parked in a car space for a numbered apartment.  That car space had been leased more than three months earlier by Mr Almandalawy, who had presented his driver's licence identification, and on his payment in cash for four month period, a swipe card had been given to him to allow access to the secured car park. 

9You drove the parcel into the car park, parked beside the Toyota Corolla car parked in the numbered space, and transferred the contents of the parcel, namely the 12 bottles containing the mixture, and some of the wrapping into the boot of the Toyota.  You then drove out of the car park, collecting
Mr Almandalawy.  You and he then drive away via CityLink and, although it is not certain when you left the vehicle, it is known that Mr Almandalawy was observed driving it in Tullamarine at about 7.00pm, and then drove to his home in Meadow Heights where the car was parked. 

10Mr Almandalawy was arrested that night and the Renault car searched, during which items found included an invoice with your name. 

11You were not arrested until approximately a month later on 29 October 2015.  You were remanded, and have remained in custody ever since, although much of that time has been spent serving another whole sentence that was imposed in March of this year.  I shall refer to the offences the subject of that sentence and its effect shortly. 

12Under s.16A(1) and (2) of the Commonwealth Crimes Act, there are various principles which I must apply in determining your sentence.  Under s16A(2)(a), I must take into account the nature and circumstances of the offence.  In doing this, I must assess the level of criminality of your role in this enterprise.  I have had regard in doing so to the principles distilled in the New South Wales decision Nguyen & Pham[1] set out by the Victorian Court of Appeal in Nguyen & Phommalysack[2], although those cases were of importation charges.  These principles include that the quantity of the illegal drug involved is highly relevant in determining the objective seriousness of the offence, and is often the main factor available to assess comparative seriousness of criminality.  In this case, the quantity, being over 6 kg of pure MDMA, which was more than 12 times the threshold amount for a commercial quantity of this drug, makes it a significant commercial quantity, and puts it at a serious level for this offence, although by no means the highest level as many much larger quantities have been detected.  While you probably did not know the actual amount involved, as your counsel conceded you did know enough to realise that there would be a significant quantity of the drug inside the parcel, because you knew that it was worthwhile for the organisers to have arranged for you and Mr Almandalawy to perform this particular stage of transferring it. 

[1] [2010} NSWCCA 238

[2] [2011] VSCA 32 at [34]

13As those principles make clear, and as is not unusual in a case such as this, it is impossible for me to directly compare you role with that of others (apart from Mr Almandalawy) in this enterprise.  That is because little is known of the extent of the involvement of others.  I have been told that neither Shaw nor Mitchell was charged.  I take into account that there is nothing to suggest that your role included organising the importation of the drugs, nor arranging for its ultimate distribution and sale, nor in sharing in the ultimate profits. 

14Your role was to meet Mr Almandalawy and Shaw and Mitchell in South Melbourne, collect the parcel from Shaw at his home, and to transport it and transfer it to the other car in the car park in the Lorimer Street building.  It is implicit from matters mentioned on the listening device that both you and
Mr Almandalawy were aware that you were transferring drugs of a quantity that made the employment of you and him to do so worthwhile to organise this, and you also knew enough of the expected content to note that the colour of the substance did not look right. The prosecutor points to your being trusted to alone transfer the drugs from the parcel to the Toyota Corolla as reflecting that you personally had a role more significant than the lowest possible level of criminality. 

15Overall, in my view, the criminality of your role was a little higher than that of a bare courier or transporter of the parcel of drugs, but relatively confined, both in duration and as part of what I infer must have been a considerably longer chain of possible future processing and distribution of the drug for sale.  Your role was effectively next after first arrival of the parcel, exposing you to possible detection, which also reflects your being at a relatively low level in the overall operation.  I am told that your motive for participating was to gain drugs for your own use rather than actual monetary profit.  No amount of drugs or their value in money was mentioned.  I accept that you did not stand to gain great monetary reward, but I infer that the indirect value to you of your involvement must have been considerable as you clearly knew that you were undertaking risk by participating. 

16I find that your criminality was nowhere near as high as would have been that of an organiser of the importation, nor of a person who would eventually arrange or participate in possible processing and sale, nor indeed one who would reap the potential profits from the sale of this importation of drugs.  Nevertheless, as is pointed out in the cases, involvement at any level in a drug trafficking offence must necessarily attract a significant sentence, or the interest of general deterrence would not be served, and you participated knowing that you were doing so as a confined part of what you realised was a significant operation of drug trafficking. 

17General deterrence, formally here referring to sub-s.16A(2)(ja), is the most important sentencing purpose in cases of this type, and in this case especially having regard to the significant quantity of the drug involved and the apparent degree of planning. The sentence must reflect the stern punishment to be expected by people who participate, even if not the organisers of such an operation.  The maximum penalty reflects the seriousness with which Parliament regards such offending and features of such offences, including the difficulty of detecting it and the great social consequences that follow from the distribution and use of such drugs.  As I have said, these features mean that general deterrence must be given very considerable weight.  It is also necessary for adequate punishment to be conveyed by the sentence, as well as the need to denounce the conduct in which you engaged. 

18I take into account, as required by sub-section.16A(2)(g), that you have pleaded guilty to his charge, and that entitles you to some leniency in your sentence.  Although you did not enter a plea of guilty to any charge until the first day of the trial, which charge was subsequently varied, I accept that there is still considerable utilitarian value in you having saved the community the time and cost of a disputed trial and saved witnesses needing to attend to give evidence.  It reflects that you have been prepared to accept criminal responsibility for your offending, and to facilitate the justice process.  A plea of guilty also is to be taken as a sign of some remorse, although there is no evidence independently confirming that you feel any real or great remorse for your participation in this offence.  I have moderated your sentence to take into account all of these aspects of your having pleaded guilty to this charge. 

19I turn now to your personal circumstances, which embrace the matters in sub-sections 16(2)(k) & (m). 

20You are now aged 23 and were 21 at the time of this offending. 

21You grew up in Melbourne as one of four children, born to your parents who had migrated to Australia from Lebanon. 

22I am told that your father was verbally and occasionally physically abusive to all members of the family, that you recall your distress at seeing him abuse your mother, and since he left the family home when you were aged 12, you have not had further contact with him.  You and your sisters were therefore raised from that time onwards by your mother alone and although there was financial strain after your father left and your mother has suffered issues with her own mental health, you and your sisters and mother are still of strong support to each other. 

23Your older sister and two younger sisters were all in court with your mother to support you for the plea hearing, and I see two of your sisters and your mother here again today.  I am told that none of your sisters has been in any trouble with the law.  The youngest is completing school this year and the older two are employed in stable occupations. Notwithstanding what difficulties there were within the family, they all seem to have had the strength and determination, all to their credit, to continue through school and for the older two beyond to forge responsible paths in life for themselves. 

24You left school in Year 8, having had trouble concentrating even in primary school.  You then attended TAFE courses in warehouse management, logistics and IT, and had some intermittent employment including in general labouring jobs, which exposed you a little to the building industry, but essentially by your mid to late teens you were engaging in use of cannabis and mixing with people not conducive to encouraging you into a responsible and hard-working lifestyle. 

25I am told that in 2014 and 2015, you experienced a number of events that particularly destabilised you and led to your resorting to further and more destructive drug use.  I am told that a 19-year-old cousin with whom you were very close was killed in a motor vehicle accident, and that your maternal grandfather passed away.  You also parted ways with your girlfriend which relationship had effectively been your first of significance.  I am told that you also began to feel the strain of being the primary carer of your mother, who was suffering from anxiety and depression.  It is submitted on your behalf that these were four personal tragedies.  I accept that it is confronting and often very difficult for a young person to face and adjust to loss of people close to them.  However, I am not persuaded that these events go so far as being beyond the exigencies of life that occur to many people, even at the age they did to you.  I accept that they may well have led you to turn more often or to a greater degree to mood altering substances, in a misguided attempt to escape the stressors and worries of life. 

26I am told that you began to use methylamphetamine heavily from the age of 19, and also used cocaine, and that your drug habit became both destructive of your thought processes and very expensive.  I am told that that also led you into trouble with the law beyond just the use of illegal drugs. 

27You come before the court with a prior criminal record, commencing with an appearance in the Magistrates' Court in February 2014 for a number of offences of dishonesty.  You were sentenced at that stage to an aggregate of three months' imprisonment, wholly suspended for nine months, and the record reflects that this sentence was imposed because you did not want a Community Corrections Order.  That indication reflects a failure by you to be willing to face the need to address the causes of your offending by undergoing rehabilitative or therapeutic programs in the community.  Some 18 months later, you were dealt with for a further offence of dishonesty which breached the suspended sentence but because of your youth and the age of the offences, it appears that the suspended sentence was not restored.  I take it to be at that stage that Dr King produced his first report in respect of you. 

28In September 2015 - in fact the day before the offending for which I am sentencing you - you were dealt with in the Magistrates' Court for not insignificant driving offences, including driving whilst suspended and speeding and on those you were fined and suspended from driving for six months.  Although the offence for which I sentence you is of a very different nature from those, I commented during the hearing that it would seem that the order suspending you from driving, and indeed an appearance before the Magistrates' Court, had no effect, as the very next day you participated in transferring commercial quantity of drugs and in doing so drove to meet
Mr Almandalawy and Mr Shaw and as part of your role in transferring the drugs you also drove. 

29A month after the offending for which I am sentencing you, and shortly before you were arrested for it, you were before the Broadmeadows Magistrates' Court on multiple charges, including some for dishonesty, and also for possessing cannabis, and possessing another drug of dependence and also for possession of a prohibited weapon. You were placed on a 12 month Community Correction Order which I note involved, as its only condition, performance of unpaid community work, and no drug rehabilitation conditions, notwithstanding some of those charges.  In any event, within a week you were arrested for the current offending, and remanded, and you have been in custody ever since, so clearly the Community Correction Order could not be performed. 

30Also of relevance is that you were sentenced in the County Court in March of this year on charges of burglary and theft.  While not formally prior offences or “antecedents“ for sentencing purposes, the actual offending conduct had occurred in 2014.  I have read the sentencing remarks of His Honour Judge Punshon on those charges.  There were eight charges of burglary and six of theft, involving multiple commercial burglaries in telecommunication stores in shopping centres in Melbourne metropolitan area in January and February 2014, in which a total of almost $350,000 worth of stolen stock was stolen by a group of three to five offenders wearing balaclavas and gloves, dressed similarly and using a common modus operandi. You were involved in five burglaries of stores that resulted in items being stolen and two further burglaries where no items were stolen, and you also burgled the home of an associate to whom the group was selling the stolen phones.  You were on bail at the time of that offending, in the lead up to your being sentenced to the wholly suspended sentence which I have mentioned on

13 February 2014. 

31Judge Punshon compared your circumstances to those of your co-offenders in those matters, as he needed to consider issues of parity, but noting that a Community Correction Order as part of your sentence was unlikely to be practical as you were still remanded for the matters with which I am dealing.  His Honour imposed an aggregate term of 20 months' imprisonment and fixed 12 months as the minimum period before you could be eligible for parole.  He declared 460 days in pre-sentence detention as reckoned served.  Again, in reality, you were not considered for parole because you were concurrently remanded for the offending with which I am dealing, and that meant that you served the whole 20 months' imprisonment.  That sentence expired, having regard to the pre-sentence detention, in June of this year, and since then you have remained remanded in custody for the charge with which I am dealing, and that period will be counted as reckoned served toward the sentence I impose. 

32The prior and subsequent court proceedings are relevant in two ways.  First, you cannot claim to come before the court with a previously unblemished character, and on the contrary, as was conceded by your counsel, you have an extensive criminal history for a young man.  It cannot be said that this offending with which I am dealing was a single isolated and uncharacteristic lack of judgement by you to become involved. However, none of the prior offending is of the level of seriousness as the current matter.  While I am not downplaying offences of dishonesty, particularly if carried out in a planned manner on commercial premises targeting relatively expensive items, and although your prior offences include some of possession of illicit drugs, the current charge of attempting to traffic in a commercial quantity of illegal drugs is of a much more serious nature as reflected in the much higher potential maximum penalty. 

33Your counsel describes your involvement in the offences in 2014, or from 2014, as part of the pursuit of money for drugs, and also arising from your involvement with people in similar circumstances. It would appear that this was not theft or burglary at a basic level, at least not the spate of burglaries with which Judge Punshon dealt, and you were clearly part of an organised group of offenders at that time. 

34I do not regard your own drug use as an excuse for the offending with which I am dealing.  I have taken it into account as a partial explanation as to why you became involved, although going from heavy drug use and difficultly paying for it, to joining a significant drug trafficking operation, was a very considerable step up to more serious offending.

35It was also suggested through what you told a psychologist, Dr Michael King, that you were subject to suggestion and some pressure or at least persuasion from the circle of people with whom you were mixing, whom he understood to include extended family members - I hasten to say not your sisters or mother, there is no evidence of any of that whatsoever – to participate in this offending. I do accept that it is likely that the people with whom you were mixing were uncritical if not supportive of you becoming involved in the matter for which I sentence you. 

36I have read reports and heard oral evidence from clinical psychologist,
Dr Michael King, who, commencing late 2014 has been asked to assess you and any connection between your offending and your mental health for court hearing purposes.  His initial assessment of you in November 2014, was that your fundamental level of intelligence was at least around average or slightly above average but that you had sub-normal difficulty with concentration. He also, at that stage, diagnosed a psychotic state co-existent with the effects of illicit drugs, so the two could not be separated, or there could be no exact separation.  He was of the opinion that you required urgent medical management and psychological treatment.  None was ever undertaken.

37On a second assessment by him in March 2016, there was similar diagnosis and you were thought to have a major mental disorder consistent with schizophrenia.  However, after further assessment and cognitive testing by
Dr King's associate in September and October this year, their opinion of your condition, that is Dr King's and his associate's opinion of your condition is no longer that you suffer from a psychotic disorder.  You had been in prison for over 21 months when most recently tested, and at least since May of this year had remained drug free as reflected on urine screens, and Dr King's view was that the extended period of abstinence from drugs enable testing to show that it was not likely that you had an underlying psychotic condition. 

38It is now Dr King's opinion that you have a fluctuating mental state in the class known as Dissociative Personality Disorder.  The extensive cognitive testing confirms that you are in the normal range for intellectual capacities generally, but concentration is still low, and that you have lost confidence in your capacity to make appropriate decisions to the extent that you are vulnerable to the suggestion or persuasion of others. 

39Arising from these opinions, it is not suggested that your mental state, as now assessed by Dr King, attracts principles that would lower your moral blameworthiness, nor the application of principles of general or specific deterrence in the manner of the principles in Verdins case.  Where it is suggested to be relevant is in potentially helping to explain your involvement in the offending, that is, from a subjective point of view to help assess your moral culpability in the subjective, not objective, manner, such as explaining your reaction to circumstances which arose.  Your counsel relied for that use on some principles set out in O'Neills case[3]. 

[3]DPP v O’Neill [2015] VSCA 325 at [96]-[98]

40Your involvement in this offending was not of a nature consistent, in my view, with impulsiveness, nor in my view with low levels of concentration or lack of confidence in your ability to make appropriate decisions.  On the contrary, your involvement seems to have been pre-arranged and did not rely on you lacking judgment in the immediacy of an unexpected necessary choice. I do not regard those deficiencies pointed to by Dr King, in his assessment of your mental functioning, as giving much explanation of your involvement in this offending. 

41However, what I do accept from the information about your life and habits at the time, is that you were living in a state dominated by your drug use and amongst and influenced by others in that lifestyle, and that that probably contributed to your decision to become involved in this trafficking operation. I do not regard that as diminishing your personal moral culpability, but it is consistent with you not being an instigator or main player in the arrangements.  What I do accept is that your immaturity may well have led you into becoming involved in what was much more serious offending than any in which you had previously engaged, and than you might have fully appreciated.

42Your prior criminal history is such that specific deterrence - that is to deter you from further offending - should be given some weight in deciding your sentence, particularly when you were unwilling to address the causes of your previous offending by accepting a CCO or by undertaking the treatment first urged by
Dr King in November 2014. 

43Another way that your previous offending and court appearances are relevant is that they resulted in you entering the adult prison system for your first time in custody at the age of 21, and you having spent almost two years there already. The seriousness of the present offence means that you will be spending several more years in prison.  It is a sad reflection on your own lack of willingness, quite possibly due to immaturity, to face the fact that you had a problem with drugs and needed to address it, when first before a Court, that you will end up spending much of your twenties in prison.  That is a sad waste for a young man who may have had some difficulties within his family in his youth, but otherwise could be living in the community with the support of his mother and sisters and building a responsible life for himself. 

44The time you have so far spent in prison is, in my view, relevant in a particular way in my overall determination of the sentence I impose.  The prosecution disputed that it should be categorised as relevant to the principle of totality, as it does not fall within either of the categories of circumstances recognised as set out in paragraph 28 of the decision in The Queen v Mangellan.[4]  In my view, the issue arises and is relevant whether or not it is strictly to be called “totality”.  It arises as follows. The 20 month sentence imposed by Judge Punshon was fully served by you, and expired almost four months ago.  Therefore the sentence I impose will be wholly cumulative on it, bearing in mind that the time you have served in custody since then will be reckoned served on the sentence I impose.  If you had come to sentence on the current matter a few months earlier, there may have been some concurrency, taking into account your total offending and particularly the age at which those other matters and the current offences occurred and the common feature of your drug abuse. 

[4] [2009] vSCA 63 at [28]

45Further, had you not been remanded for the current matter at the time, you may have been granted parole on that previous sentence, and not have had to serve the full 20 months actually in prison.  In that way, you have already undergone some punishment for the current matter as you lost the opportunity to be considered for release on parole in the meantime and so you may have served – hypothetically - up to eight more months, than had you been able to be considered for parole at the earliest time, being the expiration of the minimum term set by Judge Punshon.  I have taken this into account by moderating both the head sentence and non-parole period I will impose, although not to the extent of a full or exact eight month reduction,  as I cannot know and must not speculate as to what decision the parole board might have made had you not been remanded on the current offending.

46You come before the court now aged 23 and although not still within the definition of a “young offender”, under Victorian law you are of an age regarded as a youthful offender.  I disagree with the submission of the prosecutor that by use of the words "young offender" in paragraph 11 of the principles set out in Nguyen & Phommalysack - namely “where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions” -  would exclude you from similar consideration.  In my view at the age of 21 at the time of the offending the immaturity of youth does explain, in part, or shed light on your involvement and should be taken into account as bearing on your degree of culpability. 

47Further, and although this is not your first offending and therefore your rehabilitation does not fall to be treated as the primary consideration under the principles in Mills case[5], I regard you as of an age when the potential for your rehabilitation should still be of significance in deciding your sentence.  Ultimately it is in the community's best interest as well of course your own and that of your family, that your rehabilitation be facilitated.  The seriousness of the nature of this offending and the importance of general deterrence for offending of this nature means that you must serve considerably more time in prison but you will still be eligible for release before you turn 30, and there is still opportunity for you to re-establish yourself in the community on your release and to build a responsible and hopefully satisfying future for yourself.

[5]R v Mills [1984] 4 VR 235

48I take into account that although you were previously unwilling to seek out therapy or face the fact that your drug abuse was harmful and leading you into risky and illegal activity, the near two years that you have now spent in prison, that being for the first time and commencing when you were aged only 21, appears to have had some salutary effect on you.  Your future prospects of avoiding offending are heavily dependent on you remaining abstinent from drugs, and you seem to have accepted that at present.  At least since May of this year, your drug screens have shown you clear of drugs.  I also note that you have been undertaking a variety of programs which were made possible during the sentence imposed by Judge Punshon, and I am told that you are keen to undertake some oriented to occupation training as you hope to obtain employment in the building industry in the future. These are positive signs for your future, and with the ongoing support from your mother and sisters, the fact that you would have a stable home to which to return on your release, and also taking account that you have been assessed as falling within the “normal” range for intellectual capacity and so are not particularly limited in your ability to undertake training that might assist you to find work in the building industry,  I regard you as having reasonable prospects of succeeding in rehabilitation.  That, however, is provided you maintain your present resolve to remain abstinent from drugs. 

49I have already said, as a federal offence, s.16A(1) of the Commonwealth Crimes Act applies.  That requires the court to impose a sentence that is of a severity appropriate in all the circumstances of the offence.  That principle includes that the sentence should not be any more severe than would adequately take account of all sentencing purposes and principles. 

50I have already outlined the matters I consider of relevance, but to formally summarise those, I have taken into account as relevant, the matters set out in sub-paragraphs 16A(2), (a), (f), (g), (j), (ja), (k), (m) and (n). 

51It was conceded on your behalf that no sentence other than imprisonment would be appropriate in the current case, but your counsel urged me to impose a non-parole period which would enable a lengthy period for you to be supervised on parole as you re-adjust to living in the community and re-establish your life in the community.  Having regard to your age, and also to the information that you seem now to have recognised the need to take positive steps to change your life and address the problems which led you into criminal trouble, I consider that this is a case where the non-parole period should be longer than might usually be set.  As I have already mentioned, I have also moderated it a little further having regard to the fact that you did not get the opportunity to be considered for parole under Judge Punshon's sentence.

52I was referred to a number of other cases selected by the prosecution as indicative of a range of sentences imposed in this and other States for offending which could be considered, in general terms, comparable to the present charge.  In fact, there are very few appellate level sentences for the charge of attempting to traffic in a commercial quantity of drugs of the approximate amount and involving similar type involvement as in your case.  The prosecution conceded that straight importation cases, although there are some similarities in sentencing principles, are not likely to be as useful as other sentences for trafficking.  It was also conceded by the Commonwealth that the involvement of some of the offenders in the cases put forward was of a significantly more serious level or degree - particularly in the cases of Kleindyke and Shen, where the offenders were considered to have a much higher degree of responsibility for the overall operations.  Kleindyke was also of a greater quantity of the drugs although not of many multiples.  I take into account, as I have already said, that 6 kg in the present case is considerably more in multiples of a commercial quantity than the quantities in some of the other cases. I note that some of the cases put forward were of the Victorian Court of Appeal decisions which pre-dated the High Court's decision in Pham, which emphasised the importance of consistency in Commonwealth sentencing between States and as discussed in the Victorian Court of Appeal decision in the Commonwealth DPP v Thomas and Wu, more recently. 

53Taking all of these matters into account and applying the single synthesis of all factors as I must, it is clear that a sentence of imprisonment and one longer than three years and therefore requiring a non-parole period to be set is the only appropriate sentence. 

54Mahammed Elakkoumi, on the charge of attempting to traffic a commercial quantity of MDMA, you are convicted and sentenced to seven years imprisonment.  I fix a non-parole period of three years and ten months.  I declare 120 days of pre-sentence detention reckoned served and direct that that be noted in court records - it will be deducted administratively. 

55I state that if you had not pleaded guilty to this charge but had been found guilty after a trial, I would have imposed a sentence of nine and a half years' imprisonment with a non-parole period of seven years.  I will just check with both sides of counsel that I have covered what is necessary. 

56MR SAUNDERS:  Yes, Your Honour.

57MR BARRY:  Yes, yes, thank you, Your Honour

58HER HONOUR:  All right, I think I need to specifically say that the sentence I impose commences today.

59MR BARRY:  Yes, Your Honour.

60HER HONOUR:  120 days, I think, we checked on the last occasion.

61MR BARRY:  Yes, that is right, Your Honour, yes.

62MR SAUNDERS:  Yes, we did the last occasion, yes. 

63HER HONOUR:  All right, it is seven years' imprisonment with a non-parole period of three years and ten months, both commencing today. 

64COUNSEL:  As Your Honour pleases.

65HER HONOUR:  All right.  Do you want to speak with your client while he is still in the court?

66MR SAUNDERS:  We do, Your Honour, thank you, for a moment.

67HER HONOUR:  Yes, I will allow that to happen.  I will allow his family to approach him - no physical contact but if they want to say a few words, they can.

68MR SAUNDERS:  Thank you.  We are indebted.  Again, my apologies for delaying Your Honour.

69HER HONOUR:  I will ask that Mr Elakkoumi be allowed to stay or kept in the court just for a few minutes so that he can be spoken to.  No contact with his family but they can speak to him briefly and to allow the lawyers to talk with him.

70MR SAUNDERS:  We are grateful for that, thank you.

71HER HONOUR:  All right. 

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