Director of Public Prosecutions v Farah

[2014] VCC 2119

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01745

DIRECTOR OF PUBLIC PROSECUTIONS

v

RIAD FARAH

---

JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 December 2014
CASE MAY BE CITED AS:	DPP v Farah
MEDIUM NEUTRAL CITATION:	[2014] VCC 2119

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E Sheales
For the Accused	Mr D Cole

HER HONOUR:

1Riad Farah, you have pleaded guilty on a joint commission basis to one charge of attempting to import a marketable quantity of a border controlled precursor pseudoephedrine.  This offence was committed between 10 April and 22 April 2013.  The maximum penalty for this offence pursuant to s.307.12(1) of the Commonwealth Criminal Code is 15 years imprisonment.

2The circumstances of your offending is set out in Exhibit A, prepared by the Commonwealth DPP dated 14 November 2014.  As to the circumstances of the offence, on 10 April 2013, a customs officer picked up an x-ray anomaly on a package that had arrived from Egypt.  The package arrived through the express mail service, and was addressed to Jason Phillips at Unit 3/1, Woonsocket Court St Kilda.  The sender's detail were in a foreign language.

3The package contained five cardboard packets that were labelled growth formula dietary supplement for underweight people.  One of these packets was opened and it contained a red foil bag.  The foil bag contained small white ball shaped pallets, which when tested, recorded a positive reading for pseudoephedrine. 

4The contents of the package were later analysed and found to contain 1,972.6 grams of a substance containing pseudoephedrine with a purity of 34 per cent, or a total of 677.36 grams.  Customs officers replaced the contents of the package and arranged for a managed delivery of it.

5On 15 April 2013, on two occasions when delivery was attempted, there was nobody at the address.  As a consequence, an Australia Post collection card, addressed to Jason Phillips was left at the St Kilda apartment.  The card indicated that a signature was required on delivery of the package, and a relevant phone number was provided for the recipient of the card to contact. 

6A number of phone calls were made between Friday 19 April and Monday 22 April regarding delivery of the package and arrangements were made for delivery.  The person arranging delivery was a female who indicated the package was for her partner Jason Phillips. 

7At 12.15 pm, a Customs officer posing as a postman attended at the St Kilda apartment.  He recorded a conversation with your co-accused Milad Nessim at the door of the apartment.  In the recording, Nessim said he was Jason Phillips and that he had the collection card which he handed over.  Nessim signed the delivery sheet and took possession of the package.

8Whilst this was happening, other Customs officers were parked in a van in the street in St Kilda, in the vicinity of the apartment.  These officers had a search warrant and entered the unit once Nessim had gone inside.  The door to the apartment was open, with you and Nessim inside it.  It was obvious the apartment was undergoing renovations.  The package had been opened by both of you and the five packets were found on top of the oven in the kitchen.  You and Nessim were both arrested. 

9The officers also had a search warrant in respect of the cars you were both driving.  In your car were three other mobile phones.  Other mail addressed to Jason Phillips and also mail addressed Wali English, all with the address of the apartment in St Kilda.  You had another mobile phone in your pocket.

10In Nessim's car was a mobile phone with a number corresponding to that of the person who had made enquiries with the authorities regarding delivery of the package.  Analysis of one of your phones showed regular contact between 16 and 22 April with Nessim, in close proximity to the time enquiries were being made by a phone connected to Nessim, regarding delivery of the package.

11You were interviewed by Customs officers on 22 April 2013, and you indicated that: (i) you were at the flat at St Kilda waiting for a man to come and give you a quote for tiles, you were waiting for rocks and sand; (ii) You were working at the St Kilda flat and had been given work to do on the flat by Simon Khouri; (iii) Prior to the attendance of Customs officers, you had been at the flat three or four times before; (iv) Nessim's role at the flat was to give a quote on painting and floorboards, and the cost of tiles.  You engaged Nessim to help and have the job done more cheaply; (v) When you saw the parcel you got a shock, and you had not seen it; (vi) You denied opening the parcel; (vii) You did not know Jason Phillips; (viii) You had been instructed to provide any mail that had been delivered to the apartment to Simon Khouri.

12Subsequent enquires revealed that you had been requested to be the foreman and to organise trades people for the renovation of the apartment.  The owner of the apartment however did not ask you to collect mail that was delivered there. 

13You and Nessim therefore had access to the apartment over time, and used this as a place to which the package containing the precursor could be sent and where you could collect the package. 

14You are currently 50 years of age.  You were born in Tripoli in North Lebanon and have one sister.  During the 1980s, your mother's brother came to Australia and once he had settled, you and other family members came here in 1987. 

15Your mother ultimately came to Australia in 2004, but died soon thereafter.  You were aged 22 when you arrived in Australia.  You lived in Brunswick and could speak no English.  You were illiterate in respect of both English and Arabic.  I was informed that is still the situation and you have very limited skills.  You live with your uncle who had sponsored you to live here, and were employed in the Chef factory as an unskilled labourer.  That factory was situated close to where you were residing. 

16In 1993, you were married Rebiha through an arranged marriage.  You continued to work at the Chef factory and ultimately bought a house in Broadmeadows.  You have since divorced your wife and she has a new partner.  You have three children together, Amad aged 21, Yousef aged 17 and Adam aged 14.

17In 2000 the Chef factory closed and you commenced work as a handyman.  You offered your services for various tasks including painting, tiling and other odd jobs that you were capable of doing.  You continued to work in this manner up until the time of this office.  I was informed that you work on a casual basis as you are required to care for your 14 year old son and that you also work at the Sydney Road Coffee Shop.

18In 2010, you attended Cuthbert Medical Centre for depression and stress.  You were referred by your GP from there to a psychologist Mr Ramsay Muhammad who has prepared a report for the court, dated 20 November 2014.  You attended with him for psychological counselling and to acquire coping skills to deal with depressive mood manifestations.

19Your counsel did not rely on these matters however to en-liven the principles in Verdins.  I was also provided with a report from a forensic psychologist Ian Joblin dated 16 November 2014.  Your personal history and current circumstances are set out in that report and I take those matters into account. 

20Mr Joblin was of the view that you are entirely regretful and concerned about your involvement with other criminals, at this level in the drug environment,  particularly after a drive by shooting at your ex-wife's home.

21Clearly a significant issue in your life relates to the care of your son Adam aged 14 years.  He suffers from multiple medical problems including asthma, schizophrenia, epilepsy and he has an intellectual disability.  He currently resides with your ex-wife, her new partner and your other sons, though is becoming more difficult to manage.

22I heard evidence from your son Yousef and your ex-wife regarding the important support that you provide, in your capacity to control him, particularly as he gets older and more difficult to manage.  Adam also receives support from Broadmeadows Special Development School and your family receives some respite from DHS.

23The situation with Adam is obviously difficult and challenging.  You play a central role in controlling and caring for him, though he does not currently reside with you.  Your ex-wife expressed concern regarding her capacity to continue to look after him without more assistance, and was supportive of you taking on his fulltime care.

24Your counsel submitted the situation with Adam amounted to exceptional circumstances, that such that family hardship was a relevant sentencing consideration.  The prosecution disputed this relying on Markovic v R, 2010, 30 VA 589, especially at Paragraphs 6 and 7.

"As is clear, the question of exceptional circumstances will be one of fact, and degree in each case, although such a case will be rare".

25In every case before these courts, it is almost inevitable that imprisoning a person will have an adverse effect on members of the family.  In your case, I accept there will be increased hardship on your family members without you being available to assist with Adam.

26However, having considered the material, I am not satisfied of exceptional circumstances as the authorities define that term, exist in your situation.  In mitigation, I do however accept that any period in custody will be difficult for you being away, and unable to care and offer support for your son and your family.

27You have pleaded guilty to these matters, though not at the first opportunity, with indication being given on the first day of your trial with your co-accused listed before me.  I accept your guilty plea has significantly facilitated the course of justice, and has a utilitarian value.  Your plea is also indicative of remorse.

28As indicated, Mr Joblin was of the view that your involvement in this offence was something that you seriously regrated, and that you are remorseful.  He was of the opinion that much of your regret relates to a drive by shooting at the home where your children and ex-wife reside, resulting in damage to two cars and the house.  This incident occurring after your arrest for these matters, understandably has caused you serious concern and distress. 

29In Mr Joblin's opinion, this event has had a significant impact in providing a strong basis for specific deterrence.  You are aware in no uncertain terms about being involved in serious criminal offending, and the consequences that can follow.  Your remorse and this attitude all go well for your rehabilitation.  I note that you have no prior convictions, and that you are previously of good character. 

30Reference was made in Exhibit A to other text messages by one of the phones located in your car.  Those messages relating to a period in February 2013.  These messages were linked to similar packages, as that the subject of this matter, though addressed to a property in East Hampton.  Those packages were also intercepted by Customs.  See Paragraphs 34 to 40 in Exhibit A.

31However the matters contained in those paragraphs do not work either in favour for you, or against you in the sentencing process.  See Weininger v R, 2012, CRL 629 at 31. 

32I was referred by the prosecution to Nguyen & Anor v R, 2011, VSCA 32 at 34, and the principles that apply to this kind of offending.  As those apply to this case, first your role.  You received the package and were in contact with those arranging for the delivery of the package to the St Kilda apartment.

33Although you may not have been the major person involved in this attempted importation, your role as to receive the package that was delivered to an address that you had available, and to provide the package to someone else along the illicit drug chain was an essential part of the criminal enterprise.

34Given your limited education and your literacy skills, you were more easily persuaded to join in committing this offence.  However, by your plea, you must have known the package contained illicit substances.  The marketable quantity for this offence is 3.2 grams.  A commercial quantity is 1.2 kilograms.  The pure weight in this case was 677.36 grams.  There was a substantial amount of precursor in the package.  I was informed that you were to receive $2,000 for your involvement.  On your own account, you got Nessim, your co-accused involved. 

35The attempted importation of illegal drugs is a serious criminal offence with a maximum penalty of 15 years.  Offences of attempting to possess are not of a serious category than that of actually importing the drug.

36The difficulty of detecting drug importation offences, and the great social consequences that follow with the availability of such drugs, means general deterrence is to be accorded significant weight in sentencing individuals who are involved at any level in this activity, and stern punishment will be warranted in almost every case.

37It is necessary to signal to others that potential financial rewards are neutralised by the risk of severe punishment.  Involvement at any level in drug importation must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served.

38Pursuant to s.16A of the Crimes Act, I must impose a sentence that is of a severity appropriate in all the circumstances of the case. Section 16A(2) of the Crimes Act obliges me in sentencing you, to take into account the matters referred to within that section, as are known to the court and I have done so.

39Whilst general deterrence is not specifically listed, it is of course a matter to be accorded significant weight, given the nature of your offending.  I was provided with the table of comparative cases imposed for similar kinds of offending by this court and other state equivalents.

40These cases all involved, likes yours, the importation of a border controlled precursor pseudoephedrine.  Although they provide some guidance, they are of limited assistance given the different circumstances in each case.

41Mr Farah could you please stand.  I sentence you Mr Farah to a period of two years imprisonment.  Although I order that you be released after serving 12 months on entering a recognisance in the sum of $1,000, to be of good behaviour for a period of two years.

42If you are of good behaviour over the following two year period, that will be the end of the sentencing process as far as this court is concerned.  If however you are not of good behaviour, in all likelihood, you will be brought back before this court and depending on the nature and seriousness of the transgression, the court may either take no action, impose the fine, extend the period of your good behaviour, or impose a different penalty and revoke the recognisance release order, or send you back to prison for the balance of the sentence.  Do you understand that Mr Farah?  That I have effectively sentenced you to a period of 12 months imprisonment, and then to enter a recognisance for a period of 12 months.

43Pursuant to s.6AAA, but for your plea, I would have sentenced you to a total of three years imprisonment, with a pre-release period of two years.  Ms Sheales, do you have an order there?

44MS SHEALES:  I do, Your Honour.  I'm just filling them out.

45HER HONOUR:  Thank you.  Sorry, did I give a sum, I didn't I?

46MS SHEALES:  Yes you did, $1,000.

47MR COLE:  Yes, $1,000.

48HER HONOUR:  Thank you.

49MS SHEALES:  There's just another two copies to be signed as well.

50HER HONOUR:  What are they, Ms Sheales?

51MS SHEALES:  Another two copies of the same order ‑ ‑ ‑

52HER HONOUR:  The same order, all right.

53MS SHEALES:  So that everyone has a copy.

54HER HONOUR:  No, that's all right.  I've signed the three copies, but could we have Mr Farah sign them please.  Did you attend to the dock, Mr Cole?

55MR COLE:  Thank you for that, Your Honour.  Thank you for that opportunity, Your Honour.

56HER HONOUR:  Thank you.  Thank you, you can remove the prisoner.  Thank you I'll just stand down, thank you.

‑ ‑ ‑