Director of Public Prosecutions v Elkhadi
[2022] VCC 1597
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-21-00696
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUHAMED ELKHADI |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 29 October 2021, 9 February 2022 and 22 April 2022 | |
| DATE OF SENTENCE: CASE MAY BE CITED AS: | 22 April 2022 DPP v Elkhadi | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1597 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Two charges of trafficking in a commercial quantity of a drug of dependence – three charges of trafficking in a drug of dependence – one charge of dealing with the proceeds of crime – one charge of failing to comply with an order pursuant to s465AA of the Crimes Act 1958 – together with one summary charge of possessing a prohibited weapon – serious examples of each charge – trafficking facilitated by “dark web” – pleas of guilty – post-offence rehabilitative efforts with family support – objective seriousness of offending warrants very significant sentence of imprisonment.
Legislation Cited: Crimes Act 1958 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Cases Cited:
Sentence:Total effective sentence of 12 years and 4 months’ imprisonment with a non-parole period of 7 years and 4 months.
s.6AAA: 15 years and 6 months’ imprisonment with a non-parole period of 11 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Fallar | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr D Hallowes SC | Stary Norton Halphen |
HER HONOUR:
1Muhamed Elkhadi, you have pleaded guilty to two charges of trafficking in a drug of dependence in a commercial quantity, each of which carries a maximum penalty of 25 years’ imprisonment; three charges of trafficking in a drug of dependence, each of which carries a maximum penalty of 15 years’ imprisonment; one charge of knowingly dealing with the proceeds of crime, which carries a maximum penalty of 15 years’ imprisonment; and one charge of failing to provide information relating to a data storage device seized under a warrant, which carries a maximum penalty of five years’ imprisonment. In addition, you have consented to one summary charge of possessing a prohibited weapon being uplifted from the Magistrates’ Court to this Court, and have pleaded guilty to that charge. This carries a maximum penalty of two years’ imprisonment or 240 penalty units.
2The circumstances of your offending, which took place over a period of almost six months, are detailed in the Summary of Prosecution Opening (Exhibit “A”).
3On 12 December 2019, you were arrested by police who had had you under surveillance for some time. In essence, your offending involved you packing and delivering drugs of dependence which had been ordered on the “dark net” via a cyberspace marketplace. You apparently had legitimate full-time employment but, on top of such employment, earned some $5,000 per week over the approximate six-month period for your role in fulfilling orders which were received over the internet, which could only be accessed with specific software and authorisation using a unique customised communication protocol.
4The drugs were usually packaged by you in a way that involved deliberate concealment by having them appear to be totally unrelated commercial products. They would be put into Express Post envelopes with non-sequential numbers to avoid detection, and the envelopes were filled in or labelled with false details of the sender.
5You maintained two households, one with a family member and another with a person with whom you were apparently in a relationship. Following your arrest, police found a quantity of incriminating evidence at both addresses and also in your car. One of the addresses was set up for the purpose of packaging and distributing drugs via the domestic mail system, and items of trafficking paraphernalia were located, as well as significant detail incriminating you in trafficking on a number of electronic devices.
6Upon your arrest, you were asked to provide a PIN code for a mobile phone and refused. This is the basis for Charge 7, failing to comply with an order pursuant to s465AA of the Crimes Act 1958. However, once all relevant investigative material had been served upon you, you pleaded guilty at an early stage and did not conduct a contested committal.
7Charge 1 involves trafficking in a commercial quantity of methylamphetamine, namely 1,402.45 grams. This took place over a period of almost 6 months. The quantity is greater than five times the mixed commercial quantity for this drug (which is 250 grams), and just over twice the mixed large commercial quantity (which is 750 grams). However, I make it plain that the charge to which you have pleaded guilty and for which you are to be sentenced is trafficking in a commercial quantity, not a large commercial quantity. Nevertheless, it involves a quantity which makes the charge a very serious example of trafficking in a commercial quantity.
8Charge 2 involves trafficking in 3,4-Methylenedioxy-N-Methylamphetamine (MDMA), in a commercial quantity, namely 998.15 grams plus 197 tablets (which were not weighed). This took place over a period of almost 6 months. The quantity is almost twice the mixed commercial quantity for this drug (500 grams) plus the 197 tablets. Leaving aside the 197 tablets, the 998.15 grams is almost at the threshold for a large mixed commercial quantity of this drug (which is 1 kilogram). Again, I make it plain that you are to be sentenced for trafficking in a commercial quantity, not a large commercial quantity, but this charge, like Charge 1, by virtue of the quantity of drugs involved, puts it in the category of very serious commercial trafficking.
9Charge 3 involves trafficking simpliciter in cocaine in a quantity of 204.85 grams. This took place over a period of approximately 5 months. The quantity is greater than 67 times the traffickable quantity of cocaine (3 grams), and is approaching the halfway mark for a commercial quantity of cocaine (500 grams).
10Charge 4 comprises trafficking simpliciter in heroin, in an amount of 222.3 grams. This took place over a period of almost 5 months. The quantity is 74 times the traffickable quantity for this drug (3 grams), and is approaching a mixed commercial quantity (250 grams).
11Charge 5 involves trafficking simpliciter in cannabis L, in a quantity of 13.1 kilograms. This took place over a period of 6 weeks. The quantity is greater than 52 times the traffickable quantity for this drug (250 grams), and is half the commercial quantity (25 kilograms).
12Charge 6 involves knowingly dealing with the proceeds of crime totalling $24,577 cash. This comprised $800 cash in $50 notes, contained in a cargo pocket of trousers worn by you at the time of your arrest, $15,000 cash in the boot of your vehicle at the time of your arrest, and $8,777 cash in a money box located by police in the bedroom of one of the properties previously mentioned.
13Charge 7, as previously mentioned, involved you refusing to supply police with the PIN code for a mobile phone when you were arrested.
14Summary Charge 11, possessing a prohibited weapon, relates to a silver and black taser device found by police in a bedroom of one of the properties. This was a relatively small item on a keyring, as depicted in Exhibit “12”. There is no evidence suggesting that your possession of it was related to any of your activities in drug trafficking.
15You were one of a number of participants in a “dark net” drug trafficking syndicate which sold drugs via a cyber marketplace. You were responsible for packing and delivering drugs of dependence and, as previously mentioned, you earned $5,000 each week for your part of the operation.
16You had apparently been a member of the syndicate since approximately mid-2019. Following your arrest on 12 December 2019, police seized your laptop which contained a detailed spreadsheet of hundreds of transactions. This showed that in the 66 days between 24 June 2019 and 28 August 2019, you personally had posted 964 regular and Express Post items from post boxes in streets across Melbourne. Out of the 964 sales or mail consignments, police were able to link 149 to drug trafficking by matching the tracking number of items seized to that of tracking numbers recorded on your spreadsheet. The spreadsheet revealed that over this period of 66 days you trafficked 1,123.85 grams of methylamphetamine, 131.85 grams of cocaine, 197 Ecstasy tablets, and 102 grams of heroin. These drug transactions resulted in a total revenue of $262,710. This represents but a part of your offending.
17It is trite to say that your trafficking offending is of a high gravity. It is disturbing that this pernicious trade in illicit drugs, which does so much harm in our society, has become more clandestine than previously by persons, like yourself, utilising the dark net, making detection by law enforcement authorities even more difficult. The manner in which the syndicate operated on the internet is one which could only be accessed with specific software configurations or authorisation, and often used a unique customised communication protocol. This was a highly organised and sophisticated selling operation, involving five different drugs and offending on the two most serious charges over a period of six months involving very significant quantities of drugs. The fact that over a quarter of a million dollars of revenue was made from transactions over the two-month period from 24 June to 28 August 2019 is an indication of the significant profit to be made from this evil trade. The amounts of drugs distributed in this time are also indicative of the harm to our society, and you played a crucial role in that harm. You received orders via the Dark Web and packed and delivered them.
18The extent to which you went to conceal your criminal offending is indicated by the fact that you personally posted items at a variety of different post boxes throughout Melbourne or did dead drops, leaving packages to be collected. Post pack envelopes disguised the drugs inside by a variety of methods, and some of these were found, along with hidden drugs and trafficking paraphernalia, in front and back wall shelving of a sideboard in the office at the property set up for receiving and dispatching drugs. Various concealment methods included tins of tea or Milo, lolly bags, puzzles, Christmas cards, children’s toys, lost animal posters or children’s school clothing. Police also located in the office a black folder of “return address” stickers in various false names and with logos to conceal the real sender of the packages.
19Electronic analysis of a second mobile phone in your possession contained a host of incriminating chats concerning the trafficking operation, profit, a set up of a TOR browser, which allows for anonymous access of the internet, and a set up for a Monero Wallet, which enables acceptance of Monero cryptocurrency, to provide users with anonymity so that it is not traceable. The phone also contained images relating to drugs for packaging and sale, screenshots of spreadsheets and Bitcoin Wallets relating to drug trafficking.
20In addition, police analysed an HP Spectre Notebook which they located on your bedside table at the other property where you ostensibly resided with a member of your family. This device contained many other incriminating images, including Express Post envelope bulk purchases, meeting agendas for the syndicate, including dead drop analytics and shipping results, a spreadsheet of different locations of street boxes utilised by you for trafficking drugs, and Cruzer USB drive documents containing sender labels, sender address details and expenditure costs. Also in your bedroom at this property were your passports, travel cards, numerous technology devices, including your laptop, mobile phone, tablets, SIM cards, dongles, pocket or portable hard drives and unused Express Post envelopes.
21Following your arrest, you were interviewed by police and, as is your entitlement, made a “no comment” record of interview on 12 December 2019.
22You are presently aged 40 years and come before the Court with a prior criminal history dating back to 2003. I disregard your one appearance in 2003, which involved offences of dishonesty, apparently relating to you using an unauthorised disabled parking certificate, for which you were given a without-conviction bond. Thereafter, you were not before a court again until 2 March 2016. On that day, you appeared in the Magistrates’ Court for a number of offences which had been committed in January 2016. These involved trafficking methylamphetamine, as well as cannabis, possessing a variety of drugs illegally, dealing with property suspected of being the proceeds of crime, committing an indictable offence whilst on bail and contravening a conduct condition of bail, as well as handling stolen goods, possessing a prohibited weapon, and exceeding the speed limit. With the exception of the speeding charge, for which you were convicted and fined, the other offences resulted in conviction, and you being ordered to serve a Community Correction Order for a period of 24 months.
23On 5 September 2016, you were brought before the Magistrates’ Court for contravening the Community Correction Order, as well as for fresh offences committed on 28 March 2016. These involved committing an indictable offence whilst on bail, possessing anabolic steroids, making and using a false document, dealing with property suspected of being the proceeds of crime and possession of various illicit drugs. It would appear that you were sentenced to a total effective sentence of 11 months for the new offending and re-sentenced on the original offences, for which you had been given a Community Correction Order, to an aggregate sentence of 12 months’ imprisonment, of which five months was to be concurrent with the term of imprisonment imposed for the fresh offending. Thus, the total effective sentence was 18 months’ imprisonment with a non-parole period of 12 months. You were paroled on 23 August 2017 and saw out your parole period without further offending, until it expired on 28 February 2018.
24In a plea on your behalf, Mr Hallowes, of senior counsel, stated that although you had used drugs in some capacity since approximately aged 15 years, for a long time you managed to function successfully. You completed your Victorian Certificate of Education and began a couple of different courses at university, but did not complete them. You left university and were employed by a labour hire company, both in Victoria and Queensland, where you worked your way up to a position of managing major accounts and resources, and were hired out to various mining companies in Queensland. You returned to Victoria and continued with that same hire company and married in 2012, but the marriage failed during 2014, and you were divorced in December 2015. It would seem that you had issues with your performance with the labour hire company and lost that job in 2015. Following the loss of your job and the failure of your marriage, your drug use escalated, and you began using methylamphetamine in 2015, which Mr Hallowes submitted lead to the offending for which you were sentenced in 2016. Mr Hallowes stated that, after your release from prison on 23 August 2017, you did some sporadic work for labour hire companies, but relapsed into using methylamphetamine and heroin, allegedly to the extent of 2 grams of methylamphetamine and half a gram of heroin daily, which was ongoing at the time of this offending.
25After being arrested for these offences in December 2019, you were remanded in custody, but then bailed in April 2020. During that time, you lived with a family member and made changes in your life. Mr Hallowes submitted that you had developed an insight into your drug dependence and ceased using drugs.
26At your plea hearing, I heard evidence from a sibling of yours, who stated that you had always been hard working and loyal. Your sibling was aware there were tensions in your marriage, and you became distant and somewhat isolated from the family. When the family did see you, you appeared to have a low mood and were withdrawn and increasingly isolated. Your sibling described you as having invested a lot in your marriage and your family home, and when you lost your marriage and your job, your life seemed to fall apart. Your family had not been aware of your earlier drug use, but you were described as becoming a completely different person, who seemed unwell, had lost focus and a sense of purpose. Your family saw little of you, and when they did, it was observed you had lost quite a bit of weight, and were disengaged and spoke very little. Apparently, initially after being released from custody, you did obtain full-time employment for the ten months leading up to your arrest on this offending. This employment involved you being an occupational health and safety adviser.
27Your sibling stated that, after you were released on bail in April 2020, you reconnected with the family, maintained employment, and made a concerted effort to understand your drug use, the triggers for it and the risks associated with it, as well as engaging positively with those around you and undertaking volunteer work. You talked in depth about your offending and your guilt and shame associated with it, and regained a sense of purpose and wanted to give back to the community and adopt a more positive, constructive path in life. Your sibling has provided a considerable amount of money by way of surety for your bail, as well as for your extensive legal costs. Apparently, you have paid for your own psychological counselling over and above what was provided by the government via your GP as part of a mental health plan, albeit that your sibling’s work background enabled you to be given guidance about the mental health practitioners who would best assist you.
28Your sibling stated that, apart from volunteering with a variety of community organisations, you maintained stable employment and also completed courses to give you new skills, consisting of a Certificate IV in Training and Assessment and a Certificate IV in Mental Health Peer Work, as you had decided that you wanted to assist others not to go down the path you had taken to end up in the criminal justice system. You established an organisation which delivers emergency food relief to those who are affected by COVID-19 across Melbourne and fulfils requests for food packages from a variety of charities, including the Salvation Army and Melbourne City Mission. You also established a second not-for-profit organisation which aims to support persons from particular cultural backgrounds who appear to be over-represented in the criminal justice system. Your sibling described your volunteer work as your “medicine” and also stated that you had been attentive in the care of an elderly relative with whom you live. Your sibling, who impressed me as an intelligent, high achieving and caring person, had experience, connections and a background in administration, which assisted you in establishing your charities, however, you came up with the ideas for those organisations. There are now some three hundred volunteers for the foodbank organisation, to which you devoted a great deal of time and effort, because you felt so guilty and ashamed about what you have done.
29Your sibling stated that the family member with whom you live has suffered deteriorating health in recent years relating to a back condition. This makes mobility difficult, and necessitated surgical treatment for the removal of a malignant cancer and subsequent radiation and chemotherapy treatment. During the time upon which you were bailed before being remanded in custody again by myself on 20 October 2021, you assisted this relative with most activities of daily living when you were not working.[1]
[1]Exhibit “11”
30Your sibling mentioned in sworn evidence that, after you were released from custody on bail on 14 April 2020, you subsequently married your current wife in December 2020. A reference was provided by your current wife, dated 22 October 2021,[2] who stated that she had known you for 15 years. She had become widowed when her children were quite young, and she described you as having been a great support in many practical ways at that difficult time in her life. She commented upon how she had observed a considerable decline in your mental health following your marriage breakdown and loss of employment, and how you still find it “excruciating” to talk about the charges you are facing. She described you becoming distressed and crippled with anxiety, and how your main concern has always been the impact of your actions on the community, your family and friends. She stated that you have expressed the utmost remorse for your actions and worked tirelessly to pay your debt to the community by wholeheartedly dedicating the past 18 months to serving marginalised people in the community through volunteer work. Further, you have reverted to your faith and have become an important part of her family, and made remarkable changes to improve yourself.
[2]Part of Exhibit “10”
31Many other references were tendered as part of Exhibits “10” and “13”. These are mainly from family and family friends or long-term friends. All speak of you as being a kind and decent person who is ashamed of your offending, and a good person who is remorseful and committed to helping the less well-off in our society. The spouse of your sibling and their children also speak highly of you, and state that your offending is not a real reflection of your character and you have gone to extraordinary efforts to make up for what you have done.
32Your former wife gave a reference stating that the offending occurred following the break-up of your marriage when you felt lost and alone and ashamed.[3] I here interpolate that your offending was quite some time after the break-up of the marriage, and when you were apparently in another relationship anyway. Your counsel told the Court that your wife had left you in November 2014 and you were divorced in December 2015. Your former wife, in her reference, refers to Family Law proceedings in 2016. Your offending for which I must sentence you began in June 2019, which was well over four years since the marriage broke down and some three years after the Family Law proceedings.
[3]Reference dated 21 January 2022, part of Exhibit “13”
33A reference from a person who has worked for some 45 years in the drug and alcohol treatment rehabilitation area, states that you are “a textbook example of what rehabilitation looks like”. Many of the referees speak of your volunteer work for charities. These include two people who hold executive positions with charities with which you volunteered, who described you as diligent and reliable in your assistance. Others speak of the great commitment that you have made to helping drug-addicted and homeless people through the charities which you have set up yourself. There are also two references from the chief executive officers of community health organisations where you did three-month placements as part of your mental-health peer work course, which are praiseworthy of your organisational skills, high quality work, good teamwork, and general commitment to establishing a career in the mental-health area.
34Also tendered on your behalf were a number of documents relating to your rehabilitation from various clinicians,[4] and a bundle of certificates of courses undertaken by you, namely the Psychosocial Recovery Coach course, the Standard Mental Health First Aider, and the Mental Health First Aid Community course.[5]
[4]Exhibits “3” to “8”
[5]Exhibit “9”
35Following your release from custody on bail, you were assessed by Ms Primrose Ncube, a CISP mental-health case manager, who commented favourably in a report dated 6 November 2020[6] upon your strong commitment to treatment and the fact that you have participated in voluntary urinalysis with negative results. She commented that you had been attending a psychologist, Ms Vicki Greenwood, who in a report dated 15 September 2020 noted that you had attended eight sessions of telephone counselling with her after being referred by CISP, and that you had engaged well during sessions and presented as being open and honest, and acknowledged the benefits of remaining abstinent, which include improved personal relationships, improved health and wellbeing and mental health.[7]
[6]Exhibit “2”
[7]Exhibit “1”
36Ms Ncube noted in her report that you had been attending psychological treatment with Dr Nicole Moriarty and had also engaged with a life coach, Ms Susan Butler, once per week. You had also maintained full-time employment, engaged in volunteer work, established your own charity, and enrolled in a Training and Assessor course at Victoria University and a Certificate IV in Mental Health Peer Work at Swinburne University. She considered that you demonstrated significant effort pursuing things that support positive personal values, and are motivated to engage in work and programs which would reduce your risk of reoffending.
37Dr Nicole Moriarty, clinical psychologist, provided a report dated 26 October 2021. She noted a history of substance abuse, anxiety and lowered mood, but did not descend to any particularity as to when these issues had arisen in your life. She stated that between May 2020 and October 2021 you had attended 18 appointments which focused on a number of mental-health issues, in particular, on managing your anxiety regarding potential incarceration and the guilt that you felt for what you had caused your family and the impact of your offending on the wider community. She stated that you had improved your capacity to identify troublesome emotional responses and to manage them with strategies, and that you continued to take Lexapro (an anti-depressant/anxiety medication) prescribed by your psychiatrist, Dr Michael Maloney. She noted that you had remained substance-free for 20 consecutive months whilst managing extreme levels of anxiety and guilt regarding your current legal predicament. She noted your increased insight into your own behaviours, thoughts and emotions, and improved management of them whilst maintaining a full-time work position as an occupational health and safety officer, reconnecting with pro‑social family and friends, engaging in volunteer work with numerous charity organisations and establishing your own charity, as well as reconnecting with your faith and engaging in the study of your courses. She noted that you have been accepted into a Bachelor of Social Work course at Deakin University in 2022. She described you as having displayed significant and sustained change since being released from custody, and believed that you have the capacity to continue your rehabilitation within the community, and that “from a current risk perspective [you] would be classified as low”.[8]
[8]Exhibit “6”, page 3
38Dr Michael Maloney, consultant psychiatrist, provided a report dated 20 August 2021.[9] He had seen you on referral from your general practitioner and had, in turn, referred you to the Melbourne Clinic day program, which you attended for some seven weeks from 15 July 2021. A report from the Melbourne Clinic program authored by Erika Vella dated 2 September 2021 was tendered as Exhibit “4”. It is clear that the program was primarily an Introduction to Dialectical Behavioural Therapy to help participants begin to understand their emotional dysregulation and gain some skills in relation to it, including such things as mindfulness. This report stated that you had attributed your anxiety to your pending court case, and noted that you then developed anxiety about missing a group session because of the benefit you felt from attending. Ms Vella stated that there had been an improvement over the seven weeks from you being emotionally unaware most of the time to about half of the time, but you did have difficulty engaging in goal-directed behaviours all of the time.
[9]Exhibit “3”
39Dr Michael Maloney in his report stated that he diagnosed you with a mixed anxiety disorder with features of social, obsessive-compulsive and generalised anxiety, a polysubstance-use disorder in remission, and a borderline personality disorder. As with the report of the psychologist, this report is inadequate in detailing the history of any of these conditions. It is brief, and notes that you have not used illicit drugs since 12 December 2018 (sic), which I presume should read 12 December 2019, the date of your arrest for this offending. Dr Maloney organised with your general practitioner to have weekly or bi‑weekly urinary drug screens to confirm your drug-free status. He noted that for your anxiety disorder you were prescribed the anti-depressant, Escitalopram 10 milligrams daily, which had reduced your anxiety. He considered that your drug use was not your problem, but rather your solution to your problem, particularly managing anxiety and emotions, but that you were now engaged in developing new strategies. I found this report to be quite inadequate in the respects that I have mentioned.
40Finally, tendered as Exhibit “7” was a bundle of some 19 reports of urinalysis conducted between 19 April 2020 and 13 July 2021. All reports note no detection of illicit drugs.
41Mr Elkhadi, whilst you are to be given credit for the substantial rehabilitative gains that you made since being released on bail between April 2020 and when I remanded you back in custody on 29 October 2021, you are extremely lucky to have had the psychological and financial support of your family which enabled you to seek out multiple tiers of rehabilitative treatment by way of medical, counselling, psychological and psychiatric assistance. As raised with your counsel during the plea hearing on 29 October 2021, although I accept that you have apparently suffered some anxiety and may have been a drug user, I am not satisfied on the balance of probabilities that your drug use was of such a high level as to be a serious or debilitating addiction.
42In oral evidence, your sibling disavowed knowledge of drug problems as a reason for the breakup of your marriage and the reference from your former wife certainly makes no mention of those. Indeed your former wife stated, “Having lived with [you] for several years and based on [y]our continuing friendship, [you lead] a very positive lifestyle, exhibiting love and consideration for [your] family, while offering support to people around [you] and wider community.”[10] Later in the reference, she attributed your offending to mental health difficulties as previously mentioned.
[10] Reference dated 29 June 2021, part of Exhibit “10”
43The other references are also remarkable for the absence of any mention of observations about you spiralling down into illicit drug use, even though you had been before the Magistrates’ Court on 2 March 2016 in relation to trafficking cannabis and possessing a range of other drugs and trafficking methylamphetamine for which you were given a Community Correction Order, and were subsequently brought before the Court for breach of that order and other offences of trafficking in methylamphetamine and ecstasy and possessing other drugs, as well as dealing with the proceeds of crime and other dishonesty offending. This all resulted in you having been given a total effective sentence of imprisonment of 18 months, with a non‑parole period of 12 months. Apparently, the various offences involving trafficking had been committed on 6 November 2015 and 20 January 2016 and further offending, which involved committing an indictable offence whilst on bail, making and using false documents and possessing anabolic steroids were committed on 28 March 2016. I note that your sibling mentioned in oral evidence that you “lost everything” in the Family Law proceedings. This, together with your apparent grief over the end of your marriage and loss of your home, would appear to be pertinent background factors to your engaging in the serious offending for which I must sentence you.
44This offending involved meticulous and sophisticated attention to detail. You appear to have been in charge of the Australian arm of the operation, which involved regularly accessing the dark web application in terms of orders and instructions and the packaging and delivery of orders by way of dead drops and postal packages. Careful methods were used in order to disguise the contents of packages in various deliberate ways, as well as falsifying details of the sender of the packages. I cannot imagine a dysfunctional drug addict being entrusted with such an operation, which yielded $262,710 in revenue over 66 days of trafficking in four different drugs. Moreover, at the same time as you were conducting this clandestine drug trafficking operation on the dark web, you apparently held down fulltime employment in an occupational health and safety role earning approximately $80,000 per annum. The $5,000 per week which you were receiving for your role in this dark web drug trafficking enterprise was three times the salary you were earning in full-time employment.
45There has been no material tendered to suggest that, when you were first taken into custody, you required treatment for withdrawal symptoms. The professional reports tendered in relation to your treatment are inadequate in detailing the history of your drug use. Dr Maloney, your treating psychiatrist, refers to “polysubstance use disorder in remission”[11] without any history whatsoever of the onset of your drug use or its extent. Ms Jane You, the Day Program Clinician at the Melbourne Clinic, provided a report to Dr Maloney which is silent upon the issue of your drug history.[12]
[11]Exhibit “3”
[12]Exhibit “6”
46Dr Nicole Moriarty, your treating psychologist, simply refers to your “history of substance abuse” without any particularity as to what it compromised and for how long it had endured. She then goes on to state that you have “good insight into the justifications and factors that have contributed to your substance abuse”, without elaborating upon what those justifications and factors might have been. She also asserts that you disclosed an experience “of being abused and traumatised as a child/adolescent”, and opined that “this ‘secret’ is also a contributing factor for his current offences due to the trauma of his experiences”. This is a completely inadequate report in terms of revealing the nature of the abuse or trauma and how it supposedly contributed to your current offences. I note that this was not a factor upon which your counsel relied. Moreover, your psychiatrist had referred to you as having a borderline personality disorder but did not give the basis for such diagnosis or how, if at all, it might have impacted upon your offending behaviour. The long and short of it seems to be that you were primarily suffering from some form of anxiety and being unable to deal with strong emotional responses when they arise. However, your counsel disavowed reliance upon the principles in R v Verdins[13] as a basis for reduced moral culpability.
[13] (2007) 16 VR 269
47Dr Maloney simply referred in one sentence to your drug use being your solution to managing your anxiety and emotions (upon which he did not elaborate). Ms Vella, from the Melbourne Clinic, noted that your anxiety was more persistent in weeks four and five, which you had attributed to your pending court case.[14] Ms Jane You, the Day Program Clinician from the Melbourne Clinic, noted that you had “presented with mild to moderate anxiety due to ongoing court issues”.[15] Dr Moriarty commented that when you first consulted her that the treatment “initially focused on managing his anxiety regarding potential incarceration”.[16]
[14]Exhibit “4”
[15]Exhibit “5”
[16]Exhibit “6”
48It would seem that for many years you were able to function well and achieve when working at a managerial level with a labour hire company over some 12 years. There is no suggestion that your family was in any way dysfunctional. Indeed, your sibling and spouse are well-established professionals in areas which require a high degree of education and application. They appear to be highly supportive of you. It is somewhat surprising that in the lead-up to this offending, if you did suffer mental health issues of any magnitude, you did not speak to your sibling, whose work is in the mental health field.
49It is pertinent to note that, very shortly after you were released on bail in April 2020, you, again, had full-time employment in the occupational health and safety area, were enrolled in courses, engaged in psychological counselling, behavioural therapy and psychiatric treatment, and were functioning sufficiently well in a social context to form an intimate relationship with someone whom you had known previously and married eight months later, whilst busily engaging in volunteering for various charities, before starting up two charities of your own. The previously mentioned references from persons in executive positions with charities and community health organisations refer to your reliability, diligence, good organisational skills and the general high quality of your work. I do not accept that this high level of function would have been possible had you been heavily drug addicted at the time you went into custody. When I raised these matters with your counsel, Mr Hallowes conceded that it was not put on your behalf that the offending was committed by you “solely” to support your drug habit or that there was not “some financial incentive”. I am satisfied beyond reasonable doubt that this offending was very considerably motivated by greed, even though you may have been a drug user.
50You come from a decent family with no taint of criminality other than what you have brought on it. You have the benefit of intelligence, which enabled you to get entry into tertiary courses, albeit that you did not finish them, and then have a successful career over a number of years with a labour hire company in which you worked your way up to significant managerial roles. You are clearly a person who possesses significant capacity and skills but used them to earn money in an illegal way which causes great detriment to the community. You had been given an 18 month sentence of imprisonment in September 2016 and been released on parole in August 2017, less than two years before you commenced this very serious offending. Notwithstanding that you had been punished for offences of trafficking in the past, you were undeterred from embarking upon further trafficking at a very significantly higher level.
51The style of drug trafficking for which you are to be sentenced represents a significant escalation in seriousness from your prior offences of trafficking. It is a grave form of drug trafficking because utilisation of the dark web makes the crime difficult to detect. Also, it enables the tentacles of drug trafficking to spread rapidly and widely, as was the case with the operation in which you were involved. Packages were sent by you to many different states of Australia. The sophisticated nature of the operation made the placing and filling of orders a rapid and efficient process. Indeed, this was a factor advertised by the syndicate in which you were involved. This was high level drug trafficking, bringing with it the potential for substantial profit to those involved in the enterprise and substantial harm to the community. It is so often said that drug addiction is “a scourge on society”[17] and it is one inflicted upon our community by people like you who traffick in illicit drugs. Each day people die in this country because of drug addiction. Families are torn asunder by the dysfunctional behaviour of drug addicts. Drug addicts’ lives are miserable and they turn to crime to support their habit, thus having an adverse impact on our community and creating a burden on our police force, court system, prisons and the health system generally.
[17] Haddara v The Queen [2016] VSCA 168 at [49]
52Your offending effectively involved you and others pursuing a well-planned and very sophisticated business model to earn considerable money from trafficking illicit drugs. Your involvement extended over approximately six months and embraced many transactions and was responsible for very significant amounts of a variety of illicit drugs finding their way into the community in diverse parts of Australia. It is a style of offending which carried with it a sophistication and efficiency considerably above the face-to-face contact which one often sees in trafficking offences in this Court and the system employed was deliberately designed to distance you as the source of the drugs. In those circumstances, it is unsurprising that factors of violence and intimidation are not aggravating features of this offending. Your counsel asked the Court to note that the individual amounts of drugs dispatched by you were not large, but I do not regard this as mitigatory. If anything, it shows that the persons to whom you were trafficking were most likely using drugs themselves with all the attendant harm involved in such use. The ease with which individual users could access illicit drugs on the dark web underlines the pervasive nature of your offending, and indeed, the lack of need for a “middleman” and maximation of profits for those operating the business.
53There can be no doubt that the only appropriate sentence for this serious offending is one of a very significant term of imprisonment. In sentencing you, the Court must denounce your conduct which carries high moral culpability and emphasise the principle of general deterrence so that those, like you, who are minded to make profit from drug trafficking will know that it will not be worth their while as they will receive appropriate punishment. In the light of your criminal history, which involves four prior offences of drug trafficking, there is also some need for specific deterrence, although I accept that the material put before the Court demonstrates that there is a lesser need for emphasis of this sentencing principle than would have been the case at the time you committed the offences. I accept that you have taken considerable steps to reset your moral compass.
54The community must be protected from the evil trade of drug trafficking, particularly where it involves such a sophisticated business using the dark web to distribute large quantities of different drugs over a six-month period. The two most serious offences to which you have pleaded guilty involved well in excess of the defined commercial quantity of methylamphetamine and MDMA respectively. The trafficking simpliciter charges also involve many times the traffickable quantity of each of the drugs of cocaine, heroin and cannabis respectively. Charge 6, dealing with the proceeds of crime, $24,577, is an indicator of the flow of money involved in this very profitable illicit enterprise.
55In sentencing you, I take into account that you pleaded guilty to the offences. Your indication of such plea was made at the eighth committal mention on 7 April 2021. It would appear that all relevant prosecution material was not served upon the defence until 9 September 2020 and, thereafter, from November 2020, the defence began settlement negotiations with the Crown which proceeded over the ensuing five months. The prosecution has conceded that, in these circumstances, your pleas of guilty should be regarded as early pleas for which you should be given credit. Moreover, at the time they were entered, Victoria was hamstrung in being able to conduct criminal trials due to the restrictions imposed during the COVID pandemic and, accordingly, it is appropriate to assign additional utilitarian value to the pleas in these circumstances. This entitles you to a greater discount upon the sentence that would have been imposed had those conditions not been present.[18] Also, I am satisfied from the material put before me that your pleas are genuinely remorseful and that you now have insight into the deleterious effect of drug trafficking on the community and have endeavoured to pay back something to the community by your volunteer charity work. In the light of your early and remorseful pleas of guilty, you are entitled to a meaningful and tangible discount on the sentence which otherwise would have been imposed.
[18] Worboyes v The Queen [2021] VSCA 169
56I acknowledge that the material put before me shows that, since this offending, you have been diagnosed with suffering anxiety. There is a lack of detail about the aetiology of this condition. It would seem that, to some extent, such anxiety is related to your legal situation, however, the reports of your treating psychiatrist and psychologist suggest that you have struggled emotionally over some years prior to this offending. You were prescribed the antidepressant medication, Lexapro, at some stage after you had been granted bail in April 2020 and were continuing to take it on a daily basis right up until the time you were re‑remanded in custody on 29 October 2021. I take into account that, where a prisoner is suffering from anxiety, this does add a level of burden to his period of incarceration and recognise that you are likely to worry about the physical and emotional wellbeing of your wife and, also, the family member for whom you had been caring in the period between after you were released on bail and before it was revoked on 29 October 2021.
57In addition, part of your earlier period of incarceration prior to being granted bail and the entirety of your second period of incarceration since you were re‑remanded in custody have been subject to restrictions occasioned by the COVID pandemic. This has involved restricted out of cell time, limited availability of rehabilitative programs, and a prohibition on contact visits from family and friends, as well as having to isolate for a period of 14 days when you were re‑remanded into custody. These are all factors which add to the burden of imprisonment and, to some extent, are ongoing and I take them into account in imposing the sentences which I intend to impose.
58Mr Elkhadi, overall, I regard your offending as being very well above the mid-category of seriousness. Offences of trafficking in illegal drugs are quantity-based offences, and the seriousness with which they are regarded is reflected by the maximum penalty which Parliament has assigned to them. This is particularly so with respect to Charges 1 and 2, each of which carries a maximum penalty of 25 years’ imprisonment. Although there were not aggravating factors of violence or intimidation involved in your offending, the very clandestine nature of it on the dark web made it possible for orders to be secretly placed, processed and distributed, not only quickly, but across the nation, in a way that trafficking other than on the dark web could not have achieved.
59As I have commented, the quantity of methylamphetamine which you trafficked on Charge 1 was five times the mixed commercial quantity, in fact, just over twice the mixed large commercial quantity (which is 750 grams), but I am mindful that I am to sentence you for trafficking in a commercial quantity only. Similarly, Charge 2, trafficking in MDMA, involved almost twice the mixed commercial quantity for this drug, together with the 197 tablets which were not weighed. Leaving aside the 197 tablets, the 998.15 grams is almost at the threshold for a large mixed commercial quantity of this drug (which is 1 kilogram). However, again, I am mindful that I am to sentence you for trafficking in a commercial quantity. The trafficking simpliciter charges, Charges 3, 4 and 5, also involved many times the defined quantity for trafficking simpliciter.
60You were no lightweight in this trafficking enterprise, which had been very carefully orchestrated. You had sophisticated IT support from outside Australia, and your role was to prepare orders received over the dark web and to deliver them to clients. Your offending on Charges 1 and 2 extended over almost six months, on Charges 3 and 4 over approximately five months, and, on Charge 5, over approximately a six-week period. Even if drug addiction were a mitigatory factor, which it is not necessarily, I have already expressed the view that I am not satisfied that you were addicted to drugs, as distinct from a user of them.
61In determining the sentence in your case, I am conscious that in Gregory (a pseudonym) v The Queen[19] the Court of Appeal emphasised the need to uplift sentences for the upper category of commercial quantity trafficking offences. I am also mindful that, as the High Court emphasised in DPP v Dalgleish (a pseudonym) that, while sentences imposed in comparable cases may inform the task of sentencing, they may not fix boundaries which bind a sentencing court.[20] Current sentencing practices are thus not a controlling or determinative factor. An offender must be sentenced in accordance with the individual circumstances of his case, which include not only the assessment of the gravity of his offending, but, also, his personal circumstances.
[19] [2017] VSCA 151
[20] (2017) 262 CLR 428
62I have already referred to the aggravating features of your offending, namely, the high quantity of drugs involved (particularly Charges 1 and 2), the sophistication of the offending which facilitated the ordering and dispatch of illicit drugs, your role as the receiver and packager and distributor of orders within Australia, the fact that the offending on the two most serious charges endured for almost 6 months and that your principle motivation for offending was a financial one, together with the fact that you have relevant prior convictions for drug trafficking.
63In your favour are your early pleas of guilty, which I consider to have high utilitarian value as well as being truly remorseful, and the lengths to which you have gone to atone for your offending. The latter includes your significant engagement with counselling and psychiatric treatment, your undertaking of courses of study, the lack of use of any illicit drugs since you were arrested and your charitable works in giving back to the community by assisting those living in a state of disadvantage and poverty. These factors, together with the support of family and friends, the positive character attributes attested to you in the many references and your history of a demonstrated capacity for hard work, lead me to believe that you probably have good prospects of rehabilitation.
64Pursuant to s5(2H) of the Sentencing Act, in sentencing for a Category 2 offence, a court must impost a sentence of imprisonment unless one of the exceptions listed within that provision applies. None of the exceptions apply. Accordingly, a sentence of imprisonment must be imposed in relation to Charges 1 and 2 on the indictment. As a sentence of imprisonment is to be imposed on Charge 1, you thus fall to be sentenced on Charge 2 as a serious drug offender pursuant to the provisions of s6B of the Sentencing Act. Therefore, I must regard the protection of the community from you as the principal purpose for which that sentence is imposed. I do not consider it necessary to impose a sentence longer than that which would be proportionate to the gravity of that offence and the prosecution has not submitted that I should do so. Pursuant to s6F I cause to be entered in the records of the Court that in sentencing you for Charge 2, you have been sentenced as a serious offender.
65Pursuant to s6E of the Sentencing Act, the sentence on Charge 2 must, unless otherwise directed by the Court, be served cumulatively upon other sentences of imprisonment imposed. I do not consider that total cumulation is appropriate given that all trafficking offences were committed within the period of approximately six months and were part of the same business enterprise. It is necessary to apply the principle of totality to arrive at an overall sentence which is a just sentence, not a crushing one. However, it must be a substantial sentence of imprisonment. It seems a waste to have to send someone of your talents to prison for a lengthy time, but your offending is grave and causes harm in the community, and sentences must be of a severity to deter others and to protect the community.
66On Charge 1, trafficking a commercial quantity of methylamphetamine, you are convicted and sentenced to be imprisoned for a period of 7 years and 6 months.
67On Charge 2, trafficking in a commercial quantity of MDMA, you are convicted and sentenced to be imprisoned for a period of 6 years.
68On Charge 3, trafficking in cocaine, you are convicted and sentenced to be imprisoned for a period of 3 years.
69On Charge 4, trafficking in heroin, you are convicted and sentenced to be imprisoned for a period of 3 years and 6 months.
70On Charge 5, trafficking in cannabis, you are convicted and sentenced to be imprisoned for a period of 2 years.
71On Charge 6, knowingly dealing with the proceeds of crime, you are convicted and sentenced to be imprisoned for a period of 6 months.
72On Charge 7, failing to comply with the order of a police officer in relation to a data storage device, you are convicted and fined $500.00.
73On Summary Charge 11, possessing a prohibited weapon, you are convicted and discharged.
74I direct that 2 years of the sentence imposed on Charge 2, 1 year of the sentence imposed on Charge 3, 1 year of the sentence imposed on Charge 4, 9 months of the sentence imposed on Charge 5 and 1 month of the sentence imposed on Charge 6 be served cumulatively upon the sentence of 7 years and 6 months imposed on Charge 1. The total effective sentence is thus 12 years and 4 months’ imprisonment.
75I direct that you serve a period of 7 years and 4 months’ imprisonment before becoming eligible for parole. I declare a period of 300 days pre‑sentence detention to be time reckoned as already served under the sentences imposed this day.
76Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 15 years and 6 months’ imprisonment with a non‑parole period of 11 years.
77On all of the charges on the Indictment, I order, pursuant to section 78(1) of the Confiscation Act 1997, the forfeiture to the State of the property referred to in the Schedule, and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
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