Director of Public Prosecutions v Fattah

[2015] VCC 1753

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00836

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDUL MOHAMED FATTAH

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2015
DATE OF SENTENCE:	3 December 2015
CASE MAY BE CITED AS:	DPP v Fattah
MEDIUM NEUTRAL CITATION:	[2015] VCC 1753

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie (Plea) Ms S. Coidan (Sentence)	OPP
For the Accused	Ms C. Burnside with Ms S. Clancy	Garde Wilson Lawyers

HIS HONOUR:

1Mohammed Fattah, you can remain seated.  You have pleaded guilty to one count of trafficking methylamphetamine over the period 16 December 2010 to 7 February 2011. The maximum penalty is 15 years' imprisonment.

Circumstances of the offence

2The circumstances of the offence were set out in the Crown plea opening, which was read in open Court on the plea, and which I incorporate by reference.

3In brief outline, you come before the Court as a result of a major inter-agency criminal investigation known as Operation Rossa, that was seeking to target criminal activities of a major drug trafficker in methylamphetamine, Mohammed Oueida. Other targets of that operation included one Weightman who was a methylamphetamine cook and trafficker; a Sydney-based supplier Mr Masri; and a number of others. A number of targets of the operation have been sentenced in this court, including Mr Oueida; Mr Al Shiakhly who was a cook; Mr Weightman; a trafficker Mr Mahfouz; and another trafficker Mr Mahya; and another person who was a trafficker and assisted in some cooks, Mr Toulmin

4The investigation made extensive use of telephone intercepts and listening devices at the premises near Ballarat owned by Mr Weightman. Weightman had a relationship with Mr Oueida that centred around drug trafficking. Mr Oueida was involved in negotiating purchasing and selling methylamphetamine; arranging and supervising cooks; arranging and supervising the transport of drugs and payment; and he was also involved in personally handling sales.  Weightman cooked and trafficked methylamphetamine and his role included sourcing and purchasing the oil; testing it; cooking methylamphetamine; and supplying the drug to others. In its pure form known as ice, methylamphetamine is a very valuable drug and a kilo may be sold for anywhere between $280,000 and $330,000.

5Masri lived in Sydney and was the source of methyl amphetamine oil which was used or converted into ice for sale.

6As part of the operation you were identified as a trusted associate of Oueida and Weightman. In the Crown opening in paragraph 16 your role was described as follows, and I incorporate by reference paragraph 16 of the Crown opening:

“Fattah was investigated as part of Operation Rossa and was a trusted associate of OUEIDA and WEIGHTMAN

a)   FATTAH was the right hand man of OUEIDA and he was trusted to:

a.Negotiate and coordinate the payment for and collection of methamphetamine.

b.Personally collect large amounts of cash.

c.Personally deliver large amounts of cash interstate to pay for methamphetamine.

d.Transport large quantities of methamphetamine interstate and directly to the cook WEIGHTMAN.

e.To be present and or participate in the cooking or testing of the meth oil.

f.Personally on-deliver the cooked methamphetamine.

g.To attempt to source alternate supplies of large quantities of meth oil.

b)   FATTAH also acted as for WEIGHTMAN. However he always made it clear his primary duty was to OUEIDA.”

7The charge against you is what is known as a Giretti charge, namely that you were involved in the business of trafficking over the charged period. The prosecution relies on five separate transactions as to your involvement.

8The first occasion alleges that between 16 and 17 December 2010 you gave Masri $120,000 as payment for methylamphetamine oil supplied to Oueida.

9In the period shortly before 16 December you had been in Sydney discussing with Masri money as payment for oil, and you were also in discussions with Oueida. On 16 December you travelled from Sydney to Ballarat to deliver oil to Weightman. After that, you travelled to Oueida’s home in Greenvale and met people at Essendon Airport shopping centre.  You then travel to Sydney from Tullamarine carrying $120,000 and met Masri and reported that you had delivered the money to Oueida. Subsequently Weightman had confirmed that the oil that you had delivered to him had been tested.

10The second occasion alleges that between 20 December 2010 and 1 January 2011, you sourced the supply and delivered oil, and participated in a cook, and picked up the cooked methylamphetamine, and discussed payment. That involved you in discussions with Masri and Oueida to go from Melbourne to Sydney to collect some methamphetamine oil. Over 23 and 24 December, you drove to Sydney, keeping in touch with Oueida. When you are in Sydney you met Masri and discussed with him the issue, and then also discussed with Weightman, collecting some oil which you then did from Masri, and subsequently delivered 600 millilitres of oil to Weightman in Ballarat. That amount itself is capable of amounting to a high-end trafficking quantity .

11There was also discussion regarding cars which the prosecution says was a method of meeting drug debts.

12The third occasion alleges that between 27 and 28 January 2011, you ferried money for Weightman. This involved you attending Ballarat, returning to Melbourne, and then flying to Sydney, and then by 29 January, returning to Melbourne, apparently by road, to deliver cash to Weightman. There was discussion about you nearly getting into trouble with the police. That indicates your concern as to the criminality of your conduct.

13The fourth occasion is that on 6 February 2011,  you delivered two bottles of meth oil to Weightman and picked up an unknown quantity of vacuum bags of cooked methylamphetamine. That involved you going to Ballarat and then returning to Melbourne and subsequently reporting to Oueida.

14The final occasion was on 7 February, where you delivered an unknown quantity of meth oil to Weightman and picked up bags of cooked methylamphetamine.  You were taking the drugs to a purchaser and you discussed that with Mr Weightman, as to how much money you were to seek from the purchaser.

Assessing the seriousness of the offence

15Trafficking in drug covers a wide range of activity. You have pleaded guilty to a charge of Giretti-style trafficking where the total quantity approached but was less than 500 grams mixed product. Thus you are to be sentenced on a charge of trafficking simpliciter, and you are not to be sentenced for the more serious charge of trafficking in a commercial quantity.

16The gist of a Giretti-style trafficking count is that you were involved in, and by your plea have admitted to, being involved in the relevant period of carrying on a business of trafficking. This means that over that period you were involved in either dealing in drugs or were involved in the transmission of drugs from source to consumer on a regular and commercial basis. It is the relatively continuous activity over the period involving commercial dealing that is the gist of the offence. In your case you have admitted five occasions wherein you were involved in an overall enterprise primarily conducted by Oueida, but in which Weightman and Masri also played a significant parts.

17As the learned  prosecutor put it, even though you sat below Mr Oueida and Weightman, to be described as a lackey in some way this undersells your role.  .You were entrusted to engage in negotiation behalf of Oueida with the oil supplier in Sydney. You personally collected or were entrusted to deliver a large amount of cash to the supplier.

18On the second occasion, you sourced the meth oil, travelled to Sydney, and then returned halfway to Ballarat with the oil. On the third occasion you drove from Sydney to Melbourne carrying cash, which you delivered to Weightman. On the fourth occasion you delivered two bottles of oil to Weightman and picked up an unknown quantity of the ultimate packaged product and returned to Melbourne with it, and reported this to your principal. On the final occasion on the next day you delivered further oil to Weightman and again picked up the final product, and then discussed with Weightman how much money you would receive from the person to whom you were to deliver the drugs.

19All these matters indicate that over the charged period you were an entrusted operative within a major drug trafficking operation, who was prepared to travel between Melbourne and Sydney by road and by air, and to Ballarat carrying cash meth, oil, or the final product ready for sale.

20In submissions in relation to the seriousness of the offence your counsel emphasised that in relation to the second occasion, Mr Oueida had been sentenced by Judge Gaynor for organising that particular shipment of oil. She asked that the transactions be looked at discreetly. She further submitted that the quantities involved in occasions four and five were very small.  I do not accept they were small, but it is not clear what their size was.

21I accept that you are to be sentenced on the basis that the quantum of the drug trafficked over the relevant period approached only a commercial quantity. You must be taken to have known this by your intense involvement. This, however, does not fully reflect the depth of your involvement within the overall operation being conducted by Oueida and Weightman.

22I regard your culpability for this offending as high. You were prepared to travel at the instigation of Oueida carrying cash, meth oil, and the final product, and negotiate with the suppliers Masri in Sydney, and the ultimate recipients. You had an important role within the overall trafficking enterprise over the relevant period of your offending.

23In characterising your offending it is important that I place you within the overall hierarchy. The learned Crown prosecutor emphasised that you were below both Mr Oueida and Weightman.  He submitted however that your place was above that of traffickers such as Mahfouz and Mahya, and a cook Mr Al-Shiakhly, and another cook, Mr Toulmin.

24Your counsel produced a chart that sought to summarise the period of offending and the amount trafficked by those other offenders, as well as their antecedents. Comparing the sentences on those offenders for the purposes of parity considerations is difficult. Al Shaikhly pleaded guilty to a more serious offence and agreed to give evidence against other offenders. I do not regard it as relevant to consider his sentence. In relation to Mr Mahya, he pleaded guilty to an offence carrying a maximum penalty of 25 years under the Code. His offending was over a three week period and involved exchanges with an undercover operative for the purchase of ice by the operative, as well as tablets. The transaction took place at premises owned by him.

25Mr Mahfouz was also involved in that transaction and a later transaction involving eight ounces of ice. He was sentenced to three years' imprisonment, to be immediately released upon a recognisance. Mr Mahfouz was charged with trafficking a controlled drug under the Code over the same period.  This involved Mr Mahfouz selling drugs to a purchaser on two occasions, the first of which was at the location of Mr Mahya. On the second occasion Mr Mahya had stored drugs at his premises, which were then sold to the ultimate purchaser.  And  the total quantity was 407 grams.  He received the 12 months CCO and community work.

26The final person dealt with was Mr Toulmin. He pleaded guilty to trafficking a drug of dependence in amount of 496 grams over a ten week period. He received three years' imprisonment wholly suspended for two years. He had a number of prior convictions for traffic offences and also for causing injury. The period of offending covered ten weeks and alleged that his role involved assisting Weightman the manufacturer, testing and tasting during the cooking process, and receiving speed and ice for sale and supply to others. He attended at Weightman’s premises during the cooking on the occasion on 19 October and again on 17 November, and then on 27 – 28 December, which is the second occasion with which I am dealing with you for.

27Although Mr Toulmin was more involved in the actual manufacture of the drug than you were, I regard him as being in a much lesser role then you.  You were intimately involved in dealing with the two principals, and on that basis I do not regard the sentence imposed on Mr Toulmin, who was older than you, as having major persuasive value. Indeed Toulmin’s role was found to be less than that of Mr Mahya and Mr Mahfouz by Judge Maidment. There was also the fact that he was older than you, and the sentence was suspended to assist his rehabilitation.

28As urged by your counsel I have considered the Crown opening is for each of these three offenders in making my assessment, as well as the comments in the sentencing remarks given for each of the offenders.

29From all this it follows that although you have pleaded to a count of trafficking simpliciter, your culpability for this offending I find is above that  the three that I have mentioned, although it is below that of Oueida and Weightman, who have been dealt with for more serious offending.

30Overall I regard this as a serious example of trafficking simpliciter. It was over a considerable period, namely seven weeks, and the depth of your involvement on the five occasions encompassed in the Crown opening shows that over that period you were prepared to be deeply involved in trusted activities in the enterprise conducted by the principals.

31I accept that there is little evidence of substantial betterment for your involvement.  However that is not determinative in assessing the seriousness of the offending as an inference is always available that you were to receive a benefit for your conduct in illegal activity.

Matters in mitigation

32I now turn to matters put on your behalf on the plea.

33First, no prior convictions are alleged against you. That is very significant, given that the offending took place approximately five years ago and you are now aged 35.

34Your personal circumstances and background were set out in the report of Mr Patrick Newton. You were born in Lebanon and are the oldest of your parents' five children, and were from a rural area. Your parents divorced when you were aged 14. Your first language is Arabic. It appears that you attended school only on a sporadic basis until the equivalent of grade five, as you had to work to support your family. You migrated to Australia in 2000 in order to marry a cousin and you have lived primarily in Australia since that time. Your functional proficiency is in spoken English only.

35You worked in a number of skilled and semiskilled trades and in recent times have been working as a self-employed truck driver, resident in Sydney. After you were married in Australia your then wife had two children now aged 12 and eight. The relationship broke down and you separated in 2008, and following that time you were in a chaotic lifestyle. It was during this period that your counsel submitted that you had met Mr Oueida, who provided you with accommodation in Fawkner and created a sense of loyalty to him. You were enthralled by him, and this led to your involvement in his criminal activities.

36You also met a Ms Haddara and were in a relationship with her in 2009 and 2010, and she assisted you to refinance your towing business.  Oueida also assisted in that and you became more and more involved in his business. It was on that basis you became involved in the trafficking to which you have pleaded guilty.

37You left Australia in February 2011 in order to be with your elderly parents in Lebanon.  Police arrested the principals of the drug operation in April 2011.

38You returned to Australia in November 2012 and although you were stopped at the airport you were not arrested.

39Oueida was sentenced in December 2012; Mahfouz was sentenced was in March 2013, Mahya in April 2013; and Weightman in July 2013.

40You were not arrested until 14 January 2014, and you were then charged. Mr Toulmin was sentenced on 1 May 2014.

41After you were charged, there was a committal on 13 May 2014 and you were committed for trial.  The basis upon which you were intending to contest the charge was that the prosecution would be unable to prove that it was your voice on the various intercepts relied on by the prosecution.

Other matters in mitigation

42You have pleaded guilty. There is significant utilitarian value in the plea. Numerous witnesses would have been called in a four to six week trial. You are entitled to the credit for that.

43The plea was, however, I am satisfied, late. You had originally been charged with a more serious offence. You had contested the committal and it was only after a day or so of negotiation after the matter was listed for trial that you offered to plead guilty to the charge for which you are now being dealt with. The prosecutor put that that was the first time you had offered to plead to trafficking simpliciter.

44The plea has significant utilitarian value but less than it would have, had it been made earlier.

45Your plea is also some evidence of remorse. There was also evidence of remorse in a letter you have written to the court and in the evidence from your partner, and I have taken that into account.

Sentencing submissions

46It was the central thrust of your counsel's submission that applying principles of parity with the sentences imposed upon Mr Mahya, Mr Mahfouz and Mr Toulmin a disparate sentence from that imposed on them would create a justifiable sense of grievance in you. As each of them had been sentenced, save for Mr Mahfouz, to a term of imprisonment that was effectively suspended, then whilst it was accepted that a sentence of imprisonment was appropriate for reasons of general deterrence and denunciation, it was sought to be wholly suspended.

47I was referred to the case of Ashweith where a community corrections order of three years duration was substituted on an appeal on a charge of aiding and abetting trafficking a drug dependence. That case is distinguishable, as your offending was more serious. Significantly, the appellate court, however, said that even where a judge finds that sentences imposed on co-offenders are inadequate, that is not a basis to not have regard to parity.

48In this case I accept the prosecution’s submissions, and I do not regard the three individuals referred to by your counsel as strictly co-offenders for the purposes of parity. Whilst they were involved in the overall enterprise conducted by the principal with the assistance of Weightman, for the purposes of parity I do not regard them strictly as co-offenders with you in order to judge what is an appropriate sentence to be imposed upon you. I have already indicated that on the basis of my analysis of your involvement, your involvement was above that of those three individuals. As a matter of fairness however I will not disregard their sentences. Your counsel noted that the pleas in each case were entered at around the same time, namely at the door of the court, and save for Mr Mahya they had no relevant precedents, and thus their rehabilitation prospects were in about the same order as yours.

49Mr Pirrie submitted that the offending was so serious here that it called for a term of imprisonment to be served. He referred to the comments that have been made a number of occasions by the Court of Appeal, that drug trafficking is so serious that in general any persons involved in drug trafficking, at whatever level, can expect significant sentences of imprisonment.

50In his response submissions Mr Pirrie accepted that there had been some delay which was not attributable to your fault. Delay, however caused, is always a factor to be take into account as a matter of fairness. Here the prosecution gave no explanation for why it took them something like 14 months after your return from Lebanon to actually charge you.

51After you were charged, there has been a considerable period from that time. Some of that is attributable to the fact that you chose to contest the committal, and then the matter was listed for a significant trial, which always leads to a period of delay. As Mr Pirrie indicated, whether the prosecution had a strong case against you could have been clarified earlier by your solicitors. Further, your solicitors as late as June this year applied to have the matter discontinued.

52Since you have pleaded guilty, there have been delay in arranging the plea. It follows that some of the delay, such as the period that you are in Lebanon, is not attributable to the prosecution. Some of the delay is attributable to the workings of the criminal justice system, and some of the delay has been as a result of you contesting the charge and then choosing, as I have indicated, rather late in the piece to offered to plead guilty to the charge with which I am dealing.

53As a matter of fairness to you, I do take into account the delay that is not attributable to your conduct. I also take into account that in the period since the offending you have, as your counsel Ms Burnside has indicated, sought to rehabilitate yourself. This involves you after you arrived back in Australia moving to Sydney establishing a relationship with your now partner Ms Hraiche. You and her now have a 12-month-old child, and you have been acting as Father for her three children from an earlier relationship. You have also established your own business in interstate car transport and have been providing for your family and paying child support for your two children from your earlier marriage.

54This leads to a consideration of your prospects of rehabilitation. As I have indicated, it is now five years since this offending. You have nothing alleged against you and as I have indicated have built up a relationship and are supporting a family.

55In evidence were two references, and one from a family solicitor which indicates that you are working very hard and have learnt your lesson. You have also written a letter indicating that you are aware of the seriousness of your conduct and the effect of your actions, and you are asking for a second chance.

56The report from Mr Newton indicates that you have developed symptoms of anxiety and an adjustment disorder with anxiety. He indicates that you are an unsophisticated man with difficulty thinking clearly. He indicates that you are probably of intelligence that falls no higher than the low end of the average scale and you need remedial literacy training, as well is social skills and consequential reasoning training to reduce the risk of recidivism.

57Ms Hraiche gave evidence as to your support for her. She indicates you do not have good powers of perception and have poor judgement of others. You are not involved with the types of people that led you into this offending. From the matters just discussed I regard your prospects of rehabilitation as reasonable. You are easily led, and thus could always be tempted back into the drug business.

58There has been progress, therefore, in your rehabilitation. Your rehabilitation, however, cannot be said to be complete given that it is only since July this year that you have been prepared to take responsibility for your conduct by pleading guilty.

Purposes of sentencing

59     The basic purposes for which a court may impose a sentence are punishment; deterrence both specific and general; rehabilitation; denunciation; and protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

60The Court of Appeal has said on numerous occasions that drug trafficking is such a pervasive evil in the community that those involved must expect serious punishment. This must occur even in circumstances where you have been of previous good character and are on the path to rehabilitation.

61The seriousness of the offending here calls for a sentence that emphasises general deterrence and denunciation. You have admitted by your plea an extensive involvement in a drug trafficking enterprise, where the amount trafficked was close to a commercial quantity.

62The sentence of the Court must send a signal that involvement in any part of the drug supply chain and in particular intensive involvement as you have admitted in trafficking, is to be utterly condemned. A signal has to be sent  to the community that it will not tolerate conduct such as that you have been involved in.

63There must be some moderation due to the unexplained delay in being prosecuted, and in the overall delay since the offending, some of which is attributable to your legal advisers seeking to contest the matter. Notwithstanding this, the matter has been hanging over your head since you were arrested nearly two years ago, and I have taken that into account.

64I have considered the submissions of your counsel that a sentence in line with that imposed on Mr Toulmin or Mr Mahya or Mr Mahfouz ought be imposed on you. For the reasons I have referred to earlier, while I have had regard to the sentences imposed on them, I regard your conduct as being at a higher level of criminality that calls for a sentence higher than those imposed in those cases, and calls for a sentence to be served, as urged by the prosecution.

65Given the delay, and your part rehabilitation, and the additional burden on you of a term of imprisonment by your separation from your partner and your young child, and the other children for whom you have been acting as a parent, and where everyone is in New South Wales, imprisonment will be a greater burden on you, and I have taken that into account. I have also taken into account the references that you have tendered and the adjustment disorder with anxiety that has been diagnosed by Mr Newton. This will make imprisonment more burdensome.

66The matters I have just discussed are taken into account both in fixing a head sentence and in fixing a non-parole period, and to advance your rehabilitation I have fixed a longer than usual period over which you will be eligible for parole.  Could you please stand.

Sentence

67On the count of trafficking in a drug dependence you are sentenced to three years and nine months' imprisonment. I order that you serve two imprisonment before being eligible for parole.

68I declare that you have served eight days' presentence detention.

69I declare that had you not pleaded guilty, I would have sentenced you to a head sentence of four-and-a-half years' imprisonment, with a non-parole period of three years.

70I thank your counsel Ms Burnside and her junior for her assistance in this matter. I also thank Mr Pirrie, the learned Crown prosecutor for his assistance in the matter.  Are there any other matters, Madam Prosecutor?

71MS COIDAN:  No, Your Honour.

72HIS HONOUR:  Ms Burnside?

73MS BURNSIDE:  Your Honour, I'm instructed to seek bail pending the appeal.

74HIS HONOUR:  You can go across the road to get that, Ms Burnside.

75MS BURNSIDE:  As Your Honour pleases.

76HIS HONOUR:  I will stand down temporarily.

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