Director of Public Prosecutions v Elmaghraby

[2017] VCC 155

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00474

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM ELMAGHRABY

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2016 & 1 March 2017
DATE OF SENTENCE:	1 March 2017
CASE MAY BE CITED AS:	DPP v Elmaghraby
MEDIUM NEUTRAL CITATION:	[2017] VCC 155

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. McGregor	Office of Public Prosecutions
For the Accused	Mr D. Grace QC	David Grace QC

HIS HONOUR:

1Adam Elmaghraby, on 3 June 2016 you pleaded guilty to the following charges on Indictment No.F13061251.  Charge 1, trafficking in a drug of dependence, methylamphetamine, in not less than a commercial quantity.  The maximum penalty for this offence is 25 years' imprisonment.  You also pleaded guilty to related summary charge 5, committing an indictable offence whilst on bail. 
This has a maximum penalty of three months' imprisonment or 30 penalty units.

CIRCUMSTANCES OF YOUR OFFENDING

2On 31 August 2015 you were driving a black Holden ute when you were intercepted by police in the Maidstone area.  You gave your name and address as 87 Exford Street, Melton.  The police observed you to be nervous and suspected there were drugs in your vehicle.  The police informed you that she was going to search your car.  You then got out of your car and when you emptied your pockets you removed a Samsung mobile phone and a Blackberry mobile phone.

3The police then searched your car.  In the centre drink holder was located a Nokia mobile phone.  The police then went on to locate seven separate bags containing substances with a combined weight of 844 grams which was analysed and found to be 634.9 grams of pure methylamphetamine.  Based on the pure methylamphetamine amount of 634.9 grams you had more than six times the commercial quantity for that drug.

4The police located the following items in your car:

a)A vacuumed seal bag in the tray of the ute with "643" written on it.  This contained 639.7 grams of a substance which was 79 percent pure methamphetamine.  This single bag at 79 percent purity contained 505.4 grams of pure methamphetamine and by itself amounted to five times the commercial quantity;

b)A plastic bag with "130" written on it.  This bag contained 129.1 grams of a substance which was 87 percent pure, meaning there was a total of 112.3 grams of pure methamphetamine in there;

c)A zip lock bag containing 38.8 grams of a substance which contained 0.2 grams of methamphetamine;

d)A zip lock bag containing 6.9 grams of a substance which contained 5.4 grams of methamphetamine;

e)A zip lock bag containing 27 grams of a substance which contained ten grams of methamphetamine;

f)A zip lock bag containing 1.2 grams of a substance which contained 0.9 grams of methamphetamine; and

g)A zip lock bag containing 1.3 grams of a substance which contained 0.8 grams of methamphetamine.

5The police also located a set of scales in your utility together with an ice pipe. 

6You were arrested and taken to Footscray police station.  You exercised your right not to answer questions in relation to the drugs located in your vehicle. 

7You had a commercial quantity of methamphetamine in your possession for the purposes of selling that drug.  They are the facts that form the basis for Charge 1 on the indictment. 

8In relation to the Summary Charge No.5, on 30 January 2012 you kidnapped and intentionally caused serious injury to a young man.  You were found guilty of these offences after a trial and were sentenced for them subsequently.  On 7 August 2012 you were arrested for those particular offences.  When the police arrested you you were found in possession of 1.1 grams of methamphetamine and 0.1 grams of MDMA.  You pleaded guilty to those charges at a later time and you have already been sentenced for those drug charges.  On that occasion you were granted bail. 

9Accordingly the current offences of trafficking in a commercial quantity of methylamphetamine was committed whilst you were on bail awaiting trial for the kidnapping and cause serious injury case.  These, as a I say, are the facts for the basis of Summary Charge 5 of committing an indictable offence whilst on bail.

10In the course of the plea a bundle of photographs were tendered as Exhibit 3 by your counsel.  The prosecutor sought to have photographs marked B47 and B48 as a prosecution exhibit for identification.  The photographs show that you had two mobile phones and Blackberry in your utility.  You also had approximately $5500 in cash in your possession.  I am unable to conclude what the photograph documents in B47 and B48 mean on the appropriate standard.  I have no evidence about who wrote the documents or what the notations actually represent

11It was submitted that your role was that of a courier.  I accept that you were a methylamphetamine user at the time of your arrest and that the “ice pipe” was in your ute.  I find that your role was not of a courier but at mid-level principal for this offending.  The basis for that finding are:

(a) The set of scales in the utility;

(b) The amount of $5500 in your possession.  You were unemployed at the time;

(c) The two mobile phones and a Blackberry device in your possession;

(d) Mr Cummins took a history from you that you were seeking to earn money for your forthcoming trial.  That was in Exhibit 1, paragraph 36 on the Plea;

(e) The high level of purity of the larger packages of the drug, that is 79 percent and 87 percent purity, clearly indicate you are close to the source of the drugs;

(f) The smaller lots of drugs had lower levels of pure drug indicative of a dilution of the drugs for sale at a dealer level.

12I find that these factors, when considered together, lead to the conclusion beyond reasonable doubt that your role was higher than that of a mere courier and that you were a mid-level principal in the drug trafficking enterprise.

YOUR PERSONAL CIRCUMSTANCES

13You are now 34 years' old.  You are a single man and have no children.  In your family you are the youngest of three boys.  Your eldest brother is a federal policeman posted in Darwin.  Your other brother lives in Melton with his wife and works as a forklift driver.  Your father passed away in 2000.  Your father had worked as an accountant at the ATO and later in his own practice.  Your mother is now aged 70.  She has worked as an administrative officer at VicRoads and a tram conductor.  Your mother lives alone in the family home at Melton.  You lived with her prior to your incarceration in August 2015.  Your mother has health problems of diabetes, asthma and restricted mobility.  She now relies on your brother for support and assistance. 

14You completed all of your school education in Melton, attending Melton South Primary School and then Melton Secondary College.  You achieved an ENTER score of 73.  You then attended at Latrobe University to study a Bachelor of Business.  In your final semester of that course you were assaulted and your injuries precluded you from sitting your final exams. 

15As a result of the assault in November 2004 you suffered significant head injuries.  You have been assessed by Ian Stuart, clinical Neuropsychologist who prepared a report dated 7 April 2006 which was Exhibit 2 on the plea.  Dr Stuart has diagnosed you as suffering from mild traumatic brain injury. The effect of your injury is:

a)A mild impairment in language skill;

b)Mild problems of verbal problems solving and verbal memory; and

c)Marked slowing of speed of information processing. 

16You have been assessed by Jeffrey Cummins, forensic psychologist. 
Mr Cummins prepared a report dated 1 June 2016 which was Exhibit 1 on the plea.  Mr Cummins has diagnosed you as suffering from complex post-traumatic stress disorder of a severe type.  His opinion is that your PTSD is from three sources; your father's death in 2000 and your perception of your role in that, the assault on you in 2004 and your experiences in your work in cleaning up the damage after the 2011 Christchurch New Zealand earthquake. You are currently medicated on the antidepressant, Lexapro.

17On 18 December 2015 you were sentenced by Judge Ryan of this court to a term of seven and a half years imprisonment with a five year minimum non-parole period.  On that occasion you were convicted of kidnapping, false imprisonment and intentionally cause serious injury.  There are also a number of summary charges that were dealt with in that offending.  You appealed that conviction and sentence.  Your appeal was dismissed on 16 December 2016. 
You have now been in custody on the other matters since 31 August 2015. 
Of that time you have served 21 days pre-sentence detention in respect of these matters from 31 August 2015 to 21 September 2015. 

18In the course of the plea for these offences the following documents were tendered in support of your plea:

a)Plea submissions that were before Judge Ryan dated 1 December 2015;

b)A report of Mr George Tsironis dated 28 June 2005;

c)References from Sally Cassar dated 25 November 2015, Hussan Elmaghraby dated 16 November 2015, Nawal Elmaghraby dated
5 November 2015, Kristy Lumley dated 12 November 2015, Vanessa Mustica dated 16 November 2015, Lucas White dated 3 December 2015, James Buttigieg dated 16 November 2015, Elvis Savo dated
30 November 2015, Tamer Elmaghraby which was undated, Jarrod Hanning dated 16 November 2015 and Dr Ravi Chelangi, which was undated. 

19I have read all those references.  None of those references refer to your involvement in drug trafficking in a commercial quantity.  The references set out how you were a loving and responsible son and worker.  The references speak of a person who should have reasonable prospects of rehabilitation after you have completed your whole term of imprisonment.

20You have spent your time in prison doing courses and have engaged in welding industries there.  You have been classified, of recent times, to be in the cottages within Marngoneet Prison.  You have one prior court appearance for possessing an offensive weapon on court premises on 28 January 2015.  On that occasion, you were fined $250 without conviction.

SENTENCING CONSIDERATIONS

21The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for them and your personal circumstance.  I am required to balance the interests of the community in denouncing your criminal conduct, and the interests of the community in seeking to ensure as far as possible you, as an offender, are rehabilitated and reintegrated into society.

22You have pleaded guilty to these proceedings.  Your plea is an early plea. 
The plea was indicated at the committal proceedings for this matter.  Your plea has the utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of court and police resources to deal with other matters. Your plea vindicates the public confidence in legal processes set up to protect the community.

23Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour in this case.  Your plea also recognises that you are prepared to facilitate the course of justice in the community.  I also accept that your plea of guilty to these charges indicates and demonstrates some remorse on your part.

24As part of the governing principles to be considered in sentencing you I must take into account current sentencing practices.  That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the sentencing statistics at the time.  I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstance and many of the cases will be distinguishable from your case, as indeed they are from one another.

25It was submitted on your behalf that the extended term of imprisonment would be more onerous on you due to your mother's ill health.  You are currently serving a term of imprisonment of seven and a half years with a five year
non-parole period imposed in December 2015.  Your case is not an appropriate one to apply the mercy principle set out in Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105 as the facts of this case do not meet the exceptional circumstance test.

26I have taken into account your diagnosed condition of complex post-traumatic stress disorder and mild traumatic brain injury and accept that these conditions will make your time in custody more onerous than a person of normal and average health.  Nevertheless your offending is serious and general deterrence requires appropriate punishment.

27Mr Grace QC on your behalf expressly submitted that no aspect of Verdins' case considerations were to be relied upon by you in this sentencing process. 
That is an appropriate concession to make in this case.

28The offending in this case is of a most serious nature.  I assess your role to be that of a mid-level principal as set out earlier in these reasons.  The amount of the drugs that you had in your possession was more than six times the commercial quantity nominated by the legislature for methylamphetamine. 
Whilst I accept you were a methylamphetamine user at the time of your offending your prime motivation for this offence was your need for money to pay for your forthcoming trial which was to take place in front of Judge Ryan in October 2015.  At the time of this offence you were on bail for the charges in that trial.

29The maximum penalty of 25 years clearly reflect the seriousness of this type of offence.  I take into account the principles applicable to the issues of totality in your case.  In December 2015 you were sentenced to your first term of imprisonment.  The sentence was, as I have said before, seven and a half years with a five year minimum non-parole period. 

30In sentencing you for the charges before me I am required to stand back and look at the overall picture and decide whether the total of what would otherwise be an appropriate sentence is a fair and reasonable sentence to impose taking into account the cumulation of this sentence on the sentence you are currently serving.

31The totality principle is a principle of sentencing formulated to assist the court when sentencing an offender for a number of offences and as in your case where there is more than one sentence passed on different indictments in different courts in a relatively short space of time.  I am required to make sure that the totality of the consecutive sentences is not excessive.  I must look at the totality of the criminal behaviour and determine what the appropriate sentence for all of the offences.  This does not mean I judge or assess the sentence previously imposed on you.  It requires me to take that sentence into account when assessing the appropriate level of cumulation of these sentences on the sentence that you are currently serving.

32Initially you were due to conduct your plea on 3 June 2016, some six months after receiving your sentence from Judge Ryan in December 2015.  I adjourned that plea date to allow for your appeal process to take place because of the issue of totality in your case.

33On the summary charge of committing an indictable offence whilst on bail I am required under s 16(3C) of the Sentencing Act to cumulate that sentence on that charge unless I direct otherwise.  I have taken into account in sentencing you for Charge 1, the aggravating feature of offending whilst on bail and will not cumulate this sentence in respect of the summary charge, as it would amount to a double punishment for you in the context of the whole of your criminal behaviour before me.

34I regard your prospects of rehabilitation as guarded.  Whilst this is your first term of imprisonment, it will be a long one.  You have offended against the person in the past and have been engaged in the drug trade.  They are two major areas of criminal activity.

35On the positive side you come from a good family background and you continue to enjoy their support.  You have good intelligence and have shown efforts of industry and training whilst you have been in custody to date.  The prospect of your rehabilitation is a fine balance. 

SENTENCE

36On Charge 1, you are convicted and sentenced to five years' imprisonment. 

37On Summary Charge 5, you are convicted and sentenced to one month imprisonment.  The sentence for the Summary Charge 5 is to be served concurrently with all other sentences imposed. 

38I order that three years and six months of this sentence be served cumulatively upon all other sentences currently being served. 

39I fix a new non-parole period of six years' imprisonment from this date, 1 March 2017.

40I declare that you have served 21 says pre-sentence detention in respect of this sentence, to be deducted administratively.

41I sign the disposal orders that were sought in court on the day of your plea.

42Pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty I would have sentenced you to a term of imprisonment of seven years with a five year non-parole period for Charge 1.

43Is there anything else?

44MS McGREGOR:  No, Your Honour.

45HIS HONOUR:  Mr Grace?

46MR GRACE:  Your Honour, I just want to clarify the six years' non-parole is from this day.

47HIS HONOUR:  Yes.  I have to fix a new non-parole period and it has to be from now.

48MR GRACE:  So he effect of that will be six years from this day less the 21 days pre-sentence detention.

49HIS HONOUR:  Yes, yes.

50MR GRACE:  Yes, thank you.

51HIS HONOUR:  You right, Madam Prosecutor?

52MS McGREGOR:  Yes, yes Your Honour.

53HIS HONOUR:  Yes.  Is that all clear, Mr Grace?  I'll just hand down the disposal orders, they're signed.

54MS McGREGOR:  Thank you, Your Honour.

55HIS HONOUR:  Thanks.  You can remove the prisoner.

56MR GRACE:  Excuse me, Your Honour, can I just approach?

57HIS HONOUR:  Yes certainly.  I'll sit here.  

58MR GRACE:  Thank you, Your Honour.

59HIS HONOUR:  Thanks, I'll just hand down those signed order.  Thank you for your assistance.  Thanks, Mr Grace.

60MR GRACE:  Thank you.

61MS McGREGOR:  Thank you, Your Honour.

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