Director of Public Prosecutions v Gayed

[2019] VCC 2174

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01905

DIRECTOR OF PUBLIC PROSECUTIONS

v

MENA GAYED

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 December 2019
CASE MAY BE CITED AS:	DPP v Gayed
MEDIUM NEUTRAL CITATION:	[2019] VCC 2174

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	Mr J. Singh
For the Accused	Ms V. Drago

HIS HONOUR:

1Mena Gayed, you were found guilty by jury verdict upon a trial of trafficking in a drug of dependence in not less than a commercial quantity.  The indictment also contained two charges of possession of a drug of dependence, being butanediol and methylamphetamine.  You were acquitted on these two latter counts.

2You trafficked in butanediol-1,4.  At the time you were 32 years old.  The circumstances of the trafficking charge can be briefly summarised.

3In April 2018 a consignment consisting of nine barrels was detected by Australian Border Force.  The drug task force began an investigation into this cargo. It was an importation supposedly of a substance described in accompanying paperwork as Glyoxal.  Preliminary analysis showed it to be 1,4-butanediol, an industrial solvent which when ingested metabolises into GHB in the body.  It is a relatively cheap drug increasingly being used recreationally as an alternative to ice or other like drugs.

4The shipment was coming from China.  A formal analysis confirmed it as
1,4-butanediol, with an estimated quantity of 279 kilograms.  A commercial quantity of 1,4-butanediol is 2 kilograms and above.  The purity was not determined.  The substance was ordered from Shanghai New Material Tech Company.  The consignee was a company named Print Together Pty Ltd, a business in Carnegie.  This consignee was referred to in the airway master bill by false address.  A false telephone number and a fictitious name was attached to it.

5In March 2018 you had attended at a logistics company, Pro Global, and collected a consignment also purportedly on behalf of Print Together and spoken to Pro Global's director, Mr Chu.  You asked to be contacted upon arrival of the next consignment.  You gave your name as John and gave your phone number.  This phone had been established in your name.

6On 16 April 2018 you contacted Mr Chu three times and enquired about a consignment for Print Together.  At about 5 pm that day police attended the premises of Wholesale Logistics in Westmeadows and arrested you.  You had just taken delivery of the nine barrels which contained 1,4-butanediol.  You turned up with a ute and you were endeavouring to fit the barrels in the rear tray.

7Upon a search of the vehicle police found paperwork in relation to the consignment and mobile phone.  Asked about the consignment you told police you had received an anonymous call from an unknown male who had asked you to collect it and that subsequently you had received paperwork through the mail pertaining to its delivery.

8Although you gave police a residential address when police spoke to the occupants, who were your sister and her family, she stated you had not done so for some years.  Investigators extracted data from the phone that you had used and discovered text messages in which you discussed trafficking in
1,4-butanediol, in terms of quality, prices and transactions, indicating you were trafficking in the substance.  Print Together was not at the address given and you had never been employed by it.  That company did not use chemical products.  It had never dealt with chemical factories or employed private delivery drivers.

9The sentencing regime in Victoria for trafficking offences is quantity based.  That is, maximum penalties have been fixed by reference to specific quantitative thresholds.  Thus, commercial trafficking in a drug of dependence specified as butanediol-1,4 in a commercial quantity carries a maximum of
25 years' imprisonment. The quantity here therefore is a highly relevant consideration in sentencing you.  Other elements which go to the assessment of the seriousness of the offence are your role, the duration of the offending and the motivation for your involvement.

10The quantity here was approximately 279 kilograms.  A commercial quantity, I repeat, is 2 kilos and above.  So it can be seen that the quantity was very high indeed by some 140 times the commercial threshold.  This was a very serious instance of drug trafficking.

11While the maximum sentence is only one factor to be taken into account, it is a yardstick of importance, particularly in a quantity based sentencing regime.  Here the quantity I have noted was very high.

12Unlike in other cases where other drugs can provide a threshold for large commercial quantities this is not available in 1,4-butanediol.  That comparator is therefore lacking.  However, even without this other relative measure the quantity is significant.

13I have taken into account in setting the sentence the line of authority from Gregory v The Queen [2017] VSCA 151, in which the court discussed the spread of sentences expected across the statistical range and the expectation of a certain level of sentence where certain factors or features are present. Some of those are present here. Not all of them. Those that are present I take into account in this sentence.

14If the sentences for trafficking in a drug of dependence not less than a commercial quantities have been plainly inadequate, as the Court of Appeal in Gregory indicated, than these factors must be taken into account to arrive at an appropriate sentence.  They are:  the quantity involved, the period of trafficking, the plea of not guilty, your role and prior history.

15In your case you have no prior convictions.  The period of trafficking on the indictment particulars were said to have been on the day, 16 April 2018.  In relation to this question of the period of trafficking, although the indictment is so framed it is clear from the evidence at the trial that you were involved in a business of trafficking at least since February 2018.  And that beyond and before this particular delivery you had been dealing with a number of people by way of a drug business, where you trafficked drugs of dependence, in particular the liquid involved in this delivery.

16I should make clear that this evidence in relation to acts of trafficking is to put the charge in its proper context.  These acts are not aggravating features and my sentence is only in relation to the charge for which you have been found guilty.

17Much of the plea was taken up with the question as to your role.  It was forcefully put that the evidence was consistent with your role as a courier and it was submitted that I should consider you as merely in such a role.  I don't not accept that submission for reasons I made clear on the plea hearing and which are clear in my view beyond reasonable doubt.  The texts which I have just mentioned are powerful evidence of the context which sheds light on your role.  The documentation details, which pertain to communications involving you, elevate your role beyond that of a courier.

18It was alternatively put that you were trafficking on behalf of another or others as some sort of directed underling.  There was no evidence of this, except your assertion which the jury must have rejected.

19Although there was no evidence of other accoutrements, such as firearms, sums of cash or storage facilities and access there to or record books, and it was put that you were only to receive a $1,000 for this pickup as an expectation of yours, the central contention in the trial was that this consignment was yours to deal with.  That is to be used at your disposal to traffik to others.  That was the basis of the verdict on the charge of trafficking.  I am satisfied beyond reasonable doubt that your role was significantly greater than that of a courier.

20I note that unlike in the case of Arici v The Queen [2019] VSCA 228, there was in this case no prosecution concession that the evidence could not exclude the fact that Arici was not the primary organiser or distributor.  Here rather it was contended that you had such a role.  In Arici there was agreed characterisation of two co-accused as either sitters or couriers, there was no such agreed characterisation in this case.  This was your enterprise.  This may not have been a drug business involving many others or any others and was most likely a one man operation, but the evidence demonstrates it was yours and it was well planned.  It is amply demonstrated by the evidence that $1,000 was not going to be your reward, but substantially much more given the quantity of drugs involved.

21This was an enterprise pursued for financial reward with apparent callous indifference to the harm which drug of dependence, like butanediol, cause to those who use them and to the wider community.  You clearly regarded the rewards potentially available as justifying taking the risk of very severe punishment.  It is important that persons who contemplate taking up such an enterprise do so in the clear and unequivocal knowledge that if detected they will be sentenced to lengthy prison terms.  That lengthy sentence is the occupational risk of the drug dealer.

22Principles of general deterrence and denunciation of such conduct must be accorded prominence.  This is the way that the courts can discourage those lured by greed into trafficking drugs which are harmful to our community and about which the community looks to the court for its protection.

23I find that your moral culpability is high.  However, the lack of any prior convictions, the absence of evidence of large structure involving greater sophistication and enforcement, relegate this offending below the upper category to a mid-range category.

24Even in this category the court in Gregory at paragraph 101, and in Nguyen (2016) 311 FLR 289 decided the standard set did not only adequately reflect the objective seriousness of the offending or the offender's moral culpability but that it required an uplift in sentencing. This uplift sentencing practice is not a controlling factor in this sentence but remains a factor to take into account and I do so (See Condo [2019] VSCA 181.)

25Sentences therefore, for offending across the full range of seriousness have been increasing.  The increase in sentences for the upper category have caused a consequential shift in other categories.

26I note also the case of Shabelle v The Queen, one case which concerned
6.1 kilograms of 1,4-butanediol; one of a few cases which concern this drug in particular.

27Having pleaded not guilty but having been found guilty of the main charge you cannot of course put much reliance on remorse.  It was submitted that I could rely on remorse because of a statement in a character reference from your brother, Amgad Gayed.  In a letter dated 28 October 2019 he writes that circumstances in your life led you to drug intake and trafficking,

'During last year, especially after he knew that he will receive a baby Mena confessed to me that he sincerely regrets having committed the offence.  He admits that he'd done something wrong and must be accountable for the consequences'.

28This statement about expressing regret is difficult to fully reconcile with your plea of not guilty.  Perhaps it merely represents a more recent regret at your predicament in the face of impending fatherhood.  I am prepared to accept there is some measure of developing remorse for your conduct, despite the paradoxical and incongruous nature of the claim.

29You have no prior criminal history and that is a relevant matter to take into account.  It is to be hoped that with some protective factors in place, like ongoing family support, your lack of prior criminal history is an indication that the court should reasonably assess your prospects of rehabilitation as reasonable.  This assessment is confirmed by other material tendered and your personal history.

30It was not argued during the plea that a sentence not involving imprisonment should be applied.  Indeed the category of offence under the Sentencing Act requires a prison term, given its position in division 2 of part 3 of the Sentencing Act, which carries a strong presumption of imprisonment.  There are here no substantial or compelling circumstances that are exceptional and rare to avoid such a sentence.

31You were born in Alexandria in Egypt.  You have an older brother an sister.  Both your parents were teachers.  Aged 21 you moved to Australia.  You are now aged 33.  Shortly after your brother followed and then your parents.  Your father is unwell with many health issues, including both as to his heart and diabetes.  Your mother also has many health issues.  For some years you were your father's carer, receiving a carers payment.

32After completing your secondary schooling you completed a social work degree, a paradoxical course of study given your current predicament.  You found it difficult to enter this field of work.  You obtained employment at a department store and after some 18 months you were promoted to a manager of a department within the store.  You worked there for some four years.  You then suffered a workplace injury.  This was the catalyst for big change and ultimately you were fired in 2014, after which time you have not been in employment again.

33A report from clinical psychologist Alison Minard was received and exhibited by the court.  It is dated 17 October 2019.  The author gives a medical history.  Currently your back pain remains an issue.  She included an addiction history.  You asserted that GHB and methadone were first used to manage pain and to lift your mood.  You became entrenched 'in a drug using lifestyle'.  You also started gambling, although you assert that you have seen the light in relation to this destructive addiction.  You reported symptoms of drug induced psychosis, paranoia, auditory hallucinations, causing high levels of distress.

34You are married and have a young son.  Your wife remains supportive despite difficulties due to your addictions of drugs and gambling.  They will continue hopefully to visit you.

35Financially, your gambling, loss of work and drug habit have visited distress upon the family.  Your mental health symptoms are essentially related to your current predicament and pain management and generalised anxiety.

36Before your detention you attended to counselling under the CISP bail program from July 2018 to September 2019 for your addictions, which appear to have given you some insight into triggers and given you some prevention strategies.

37During your period on bail you severed drug related associations, reconnected to religious practices.  Ms Minard opines that your period in custody is likely to be more onerous than for others because of your psychological issues.

38I take into account and accept that the issue as to your chronic pain and the situation of your parents, who are ill, are circumstances which may render your reclusion more burdensome.  Particularly that of chronic pain. However, I have difficulty accepting that the particular personal circumstances are so vastly exceptional and different from what the vast majority of persons sentenced to a period of imprisonment experience. I accept that with family and community support your prospects of rehabilitation away from criminal offending, gambling and drug use are reasonable.

39I take into account the fact that your parents significant ill health will weigh on you upon incarceration.  I take into account the personal references which were tendered on your behalf from Father Agabi at the St George Coptic Orthodox Church; Mr Gudges, your brother in law; Natamin Gudges, your older sister; Amgad Gayed, your older brother; Ms Sharene Mikal, your cousin and
Emad Mikal, another cousin; your sister in law, Amira Zarki and Wadid Gayed.  They all speak of your good qualities and of their support.

40I was referred by the defence to two sentences:  one, mine, of 2016 in Bowden [2016] VCC 708 and of Bchinnati [2018] VCC 372, both of this court.

41In Bowden the quantity was 18.5 kilograms and four associates, included the accused bought butanediol in bulk.  In that case there was evidence that advised the court that the relative value at street level for GHB was applicable.  I was provided with no such evidence in this case.  In that case, consistent with DPP v Maxwell and at values for that time, now some three years ago; the sale of 1 litre of butanediol was put between $2200 and $3000.

42As I said in Bowden the financial reward anticipated is relevant to the objective gravity of the offence and the higher the reward of such conduct the higher the moral culpability.  You stood to derive a significant reward for trafficking in butanediol.  The greater the anticipated the reward the more powerful the deterrent message required.

43In Bchinnati the Crown accepted the accused was lower down in the pecking order in overall term and effectively 'a pair of hands responsible for moving and concealing the drugs'.  A co-accused similarly described received 14 months' imprisonment.  Bchinnati, having served 14 months, Her Honour, the sentencing judge, dealt with the matter by way of that time served and a community corrections order.  These cases, given their circumstances, can be distinguished significantly from your case.

44Please stand.

45On the trafficking in a commercial quantity of a drug of dependence, your are convicted and sentenced to seven years' imprisonment.  I order a non-parole period of four and a half years.

46I have signed disposal and forfeiture orders.

47Are there any other ancillary orders, Mr Singh?

48MR SINGH:  Yes, sir, there's a PSD of 169 days.

49HIS HONOUR:  Yes.

50MR SINGH:  And no other orders.

51HIS HONOUR:  But for your plea your sentence would have been of nine years with a six year non-parole period.

52I declare that you have served 169 days by way of pre-sentence detention and I will note that for the records of the court.  That number will be taken into account from your non-parole period administratively.

53MR SINGH:  Your Honour pleases.

54MS DRAGO:  As the court pleases.

55HIS HONOUR:  Yes, thank you.  I note that Mr Gayed has family members in court.  If they wish to speak to him briefly they can, unfortunately you cannot not touch him physically but you can speak to him.  I will remain on the Bench while that happens.  Perhaps you can facilitate that, Ms Drago.

56MS DRAGO:  Thank you, Your Honour.

57HIS HONOUR:  Yes.

58MS DRAGO:  I'm grateful for that opportunity, Your Honour.

59HIS HONOUR:  Yes, thank you.  Yes, Mr Gayed can be removed.  Thank you, Mr Anderson, sine die.

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