Director of Public Prosecutions v Ezadi
[2015] VCC 1689
•24 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALI EZADI |
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JUDGE: | Her Honour Judge Patrick | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 24 November 2015 | |
CASE MAY BE CITED AS: | DPP v Ezadi | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1689 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms T. Bolton | Office of Public Prosecutions |
| of Public Prosecutions | ||
| For the Accused | Mr R. Melasecca |
HER HONOUR:
1 Ali Ezadi you have pleaded guilty to one charge of trafficking in a drug of dependence, Charge 1, and one charge of possession of a drug of dependence, Charge 2. The circumstances of your offending are set out in the Summary of Prosecution Opening dated 17 November 2015.
2 On 14 July 2014, police pulled over a vehicle which was being driven by you for a routine check. Police observed an ice pipe sitting on the centre console and conducted a search. During the search, police observed that the audio system was disconnected. Police removed the system and saw a mobile phone box hidden in the internal area of the dashboard. In the box, police located the following items: (a) numerous empty snap-lock bags; (b) a small plastic bag containing 0.7 grams of cannabis; (c) a snap-lock bag containing 23.3 grams of methylampthetamine with an approximate purity of 80 per cent; (d) a snap-lock bag containing 6 grams of methylampthetamine with an approximate purity of 80 per cent; (e) a snap-lock bag containing 7 grams of methylampthetamine with an approximate purity of 90 per cent; (f) a snap-lock bag containing 2 grams of methylampthetamine with an approximate purity of 80 per cent; and; (g) two snap-lock bags containing 55.8 grams of methylampthetamine with an approximate purity of 90 per cent. The combined total weight of the methylampthetamine located in the snap-lock bags was 94.1 grams. In addition to those items, police located three sets of electronic digital scales and three mobile phones.
3 A search warrant was executed later that evening on your premises. In your bedroom, police found .5 grams in foil packaging and a diary with handwritten notes.
4 The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment.
5 The charge of possession of a drug of dependence relates to the cannabis found in the car and in your home. I am satisfied on the balance of probabilities that that cannabis was for your personal use. The amount is a small amount and in those circumstances, the maximum penalty is five penalty units.
6 The prosecutor made application for a forensic sample order and a forfeiture and disposal order. The making of those orders was not opposed.
7 In sentencing you, I have taken into account your personal circumstances. You are now 31 years old. You were born in Iran. Your mother left your family home when you were 4 months old. You came to Australia in 2003 with your father and stepmother after your family had fled to Turkey and spent some time there. You completed Year 10 and then commenced work. You completed a course in mechanics and have worked as a mechanic and in car sales since that time. It has been a significant feature of your life that when you were 25, your mother located you and asked for your help to come to Australia. It appears that your mother has severe mental health issues and, whilst you wish to help her, you had considerable feelings of conflict and difficulties in being able to assist her in any way. At around that time, you began using drugs and ultimately used amphetamine and ice to deal with your feelings of depression.
8 You have no drug related prior convictions but were found guilty at Ringwood Magistrates' Court on 21 October 2010 on a charge of recklessly causing serious injury. You were fined $1,000 without conviction. After your arrest, you spent 17 days in custody and then were bailed on a Court Integrated Services Program, which has provided you with considerable assistance. The CISP condition of bail was removed in November 2014. You are living with your father and employed in painting and as a labourer in the building industry. You began counselling with a drug and alcohol counsellor, Ms Denise Abadee in July 2015.
9 In sentencing submissions your counsel submitted that, in view of the principles outlined by the Court of Appeal in Boulton v R; Clements v R, Fitzgerald v R [2014] VSCA 342, the appropriate sentence in this matter would be a community correction order. A number of factors were relied upon in support of this submission, including the range of sentences indicated in the sentencing statistics, the delay since the offending with no subsequent offending, compliance on bail, the period spent in custody, successful completion of the CISP bail program, attendance on a psychologist during the CISP program and completion of a positive lifestyle's program as well the attendance on a private counsellor in more recent times.
10 Ali Ezadi, you were charged in respect of the trafficking on the basis that you had the methylamphetamine in your possession for the purpose of sale. As the courts have said on numberous occasions, the sale and distribution of drugs is an evil trade. The harm caused by illegal drugs including methylamphetamine is obvious to anyone who attends the courts in this State for any period of time. Offences committed under the influence of drugs or in order to obtain drugs lead to terrible harm to individuals and families in this community, including the drug takers themselves. The court must impose significant sentences on people who engage in that business in order to deter others from getting involved. Perhaps some will decide that it is not worth becoming involved given the sentences that are imposed.
11 The prosecution submission was a sentence of imprisonment was warranted in these circumstances and I consider that a term of imprisonment is well within range for anyone trafficking methylamphetamine particularly of this amount and purity. 100 grams of pure methylamphetamine is a commercial amount and the amount you had does not fall far short of that. The Court of Appeal in Boulton has made it clear that this court ought consider in appropriate circumstances whether a community correction order could satisfy the need for a sentence which is significant enough in terms of punishment to deter others. The court also explained the punitive nature of such an order. In some circumstances, the objective seriousness of the offending will mean that that alternative is not available.
12 In this case, I consider that the objective seriousness of the offending together with factors personal to you, mean that an appropriate community correction order would adequately serve the sentencing purposes of general deterrence, just punishment and denunciation as well as providing you with an opportunity to continue your rehabilitation.
13 You are a relatively young man with no prior criminal history in respect of drug offending. You have had a difficult upbringing in some ways. From the reports provided to the court, it appears that you have very positively engaged in counselling and treatment in respect of your drug issues and the issues underlining your drug issues.
14 The evidence given by Ms Abadee suggests that counselling needs to continue in order for you to fully deal with the underlining issues and the impact that these issues have on you and your partner. You have spent considerable time and effort in engaging in rehabilitative programs that have been offered to you. You have a history of hardwork. Those matters suggest that you have very good prospects of rehabilitation. A community correction order would allow you to continue those efforts towards rehabilitation in a community setting and with the services that are available to you.
15 I have taken into account in a general sense that you have spent 17 days in custody and accept your counsel's submission that that period of time was a salutary lesson to you. Your counsel that having spent that period in gaol was an incentive to you to engage in and comply with the CISP program and further counselling.
16 I consider that specific deterrence does still need to be given some weight in sentencing you in that you must understand that there are significant consequences if you engage in this type of offending again. That should also encourage you to stay away from illegal drugs and anyone associated with them. You are entitled to a discount for your plea of guilty although that plea has occurred relatively late in the process with there being a trial date early next year. Your plea of guilty has saved the expense and inconvenience of a trial. I accept that you are remorseful about this offending and that your plea is an indication of your remorse. Your counsel submitted that the plea of guilty was particularly valuable in this type of case given that knowledge of the drugs would be an issue in the trial. As your counsel appropriately conceded the difficulty with the submission is that the law in respect of the burden of proof for a person in possession of drugs means that you might have difficulty establishing that you did not have the knowledge. I accept that your offending was detected as a result of an unrelated intercept by police and not as a result of surveillance or other forms of investigation. I remain of the view that the prosecution case is a relatively strong one but your plea of guilty does have considerable utilitarian value as well as being an expression of remorse.
17 You have been assessed as being suitable for a community correction order. If you consent I propose to impose a community correction order for a period of 2 years and 6 months, which in addition to the core conditions would have special conditions that you do 350 hours of unpaid community work, that you are supervised by community correctional services and that you undergo treatment and rehabilitation in respect of drug assessment and treatment and mental health treatment. Any hours successfully completed in relation to the treatment and rehabilitation conditions would be deducted from the unpaid community work required.
18 Could you please stand up, Mr Ezadi?
19 Mr Ezadi, if you breach the community correction order by not following the directions that they give you or by committing any further offences, then you could be brought back to me for resentencing in respect to this matter. If you breach it by further offending, then the most likely outcome is that I would sentence you to some period of imprisonment for this offending that I am sentencing you for today, depending on how much progress had been made on the community correction order. So it is very important that you follow the directions that you are given. It is very important of course that you comply with the law throughout the next 21/2 years because if you do anything that breaks the criminal law and you are brought back before me for resentencing that will not be likely to go well for you. Community correction orders are not easy to do. They require a considerable degree of cooperation on your part with the community correctional services. If you do cooperate, generally speaking you will find that things go reasonably smoothly and things are not too difficult, so you need to patient. You need to - when it gets difficult think "However bad this is, it is better than being in gaol," which is the obvious alternative. So stick at it. If you stick at it you will likely to be able to get the requirements reasonably quickly in which case then it will just be a matter of you being supervised and be under the somewhat watchful eye of Corrections and this Court.
20 Having said all that, having had the special conditions explained to you, and the core conditions explained to you, do you consent to that order being made?
21 OFFENDER: Yes, Your Honour.
22 HER HONOUR: Thank you.
23 On Charge 1, trafficking in a drug of dependence, and Charge 2, possession of a drug of dependence, you are convicted and sentenced to a community correction order for a period of 2 years and 6 months with the conditions that I have outlined. But for your plea of guilty I would have sentenced you to a term of imprisonment of 18 months with a non-parole period of 1 year.
24 I have made an order for the taking of a forensic sample from you. I made that order because of the seriousness of your offending and because the making of that order was not opposed. The order will tell you that within a certain number of days, you are required to go to a police station in order to provide a sample. The sample will be taken by a buccal swap which is a saliva swap from your mouth. I am required to tell you that if you do not cooperate with the authorities, they are allowed to use reasonable force and to take a blood sample. I am sure that will not be required and that you will cooperate with them. I have also made the order for forfeiture and disposal of certain items that were seized.
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