Director of Public Prosecutions v Habboushi

[2024] VCC 1579

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 24-00139

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMED HABBOUSHI

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JUDGE:	JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2024, 30 September 2024
DATE OF SENTENCE:	10 October 2024
CASE MAY BE CITED AS:	DPP v Habboushi
MEDIUM NEUTRAL CITATION:	[2024] VCC 1579

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Traffick drug of dependence – 1, 4 Butanediol; prohibited person in possession of imitation firearm; possess equipment to make identification document; possess drug of dependence

Cases Cited:DPP(Cth) v Maxwell [2013] VSCA 50; R v Renzella [1999] VSCA 85; Bugmy v The Queen [2013] HCA 37

Sentence:  6 months’ imprisonment       

12-month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Kelly	Office of Public Prosecutions
For the Accused	Mr G. Davis	Greg Thomas & Associates

1Mohamed Habboushi, you have pleaded guilty to offences that were committed between 20 November 2022 and 23 March 2023, namely:

Charge	Max penalty
1	Traffick drug of dependence	15 years imprisonment
2	Prohibited person in possession of imitation firearm	10 years imprisonment
3	Possess equipment to make identification document	3 years imprisonment
4, 5	Possess drug of dependence	1 year imprisonment or 30 PU

2You have also pleaded guilty to related summary offences committed on 2 February and 23 March 2023 respectively, namely:

Summary charge	Max penalty
6	Possess cartridge ammunition	40 PU
9	Commit indictable offence on bail	3 months imprisonment or 30 PU

3At the time of offending, you were 31 years of age. You were in a defacto relationship with your co-accused, Ms Rebecca Tedesco, who was 37 years of age.

4The circumstances of your offending have been outlined in the summary of prosecution opening. It is agreed to be an accurate account of events. A summary of the facts is as follows:

5On 31 January 2023, investigators from the Major Drug Squad executed an unrelated search warrant at Ms Tedesco's address, where you were both present. Following the search, you were interviewed about an unrelated matter and released on bail.

6During the search, police seized your mobile phone. Subsequent analysis revealed that you had engaged in the sale of 1,4 Butanediol (1,4 B) between 20 November 2022 and 2 February 2023. The prosecution summary refers to a total of 23 messages, which includes those sent to you where you were asked if you had any 'L', 'drinks', 'puff' or 'a bottle' and the associated cost. Your responses included the quantity you could provide and the related price.

7During the analysis of your phone, investigators identified that you frequently visited a self-storage unit in Port Melbourne. CCTV footage revealed that you attended there 13 times between 1 December 2022 and 30 January 2023.  Ms Tedesco also attended there.

8On 2 February 2023, police investigators executed a search warrant at the storage unit and located items including:

a)11 bottles labelled 'health shampoo' which contained a total of 5.5 kilograms of 1,4B

b)A .45 imitation handgun;

c)Assorted ammunition;

d)A card embossing machine used to create false identification cards;

e)A portable printer; and

f)A card programmer;

9On 23 March 2023, investigators from the Major Drug Squad attended your address in Essendon North and you were arrested.

10They conducted a search and located: 

a)Items containing a total of 24.3 grams of 1, 4 B; and

b)One zip lock bag containing 0.4 grams of methylamphetamine at 82 per cent purity.

11There is no dispute that the possession of the drugs found on 23 March were for your own use.   These offences breached your undertaking of bail entered on 31 January 2023.

12You were conveyed to the Melbourne West police station and made a 'no-comment' record of interview. You were charged and remanded into custody. You were released on bail on 4 October 2023, after serving 195 days. Conditions of bail included a residential condition, reporting, not to use drugs, to only use one mobile device and to provide details to the police as well as participation in the Court Integrated Services Program (CISP). With the exception of some drug use, you have complied with your bail for 12 months. You have not been charged with any offences for more than 18 months.

13You have continued to be subject to the bail condition of CISP and had a good relationship with your therapist, attending almost all appointments over a 12 month period. You have seen a psychologist for treatment which has been of assistance. Ongoing reports note that you have struggled with your cycle of drug addiction, and you admit returning to illicit substance use while on bail. Not long ago, you attended a placement through the drug court program for an overdose prevention session.

14Your concerns about relapsing resulted in a delay in commencing a residential detox and rehabilitation program. You were recently assessed as suitable to reside at the Eastern Health Box Hill Hospital and your plea was deferred to complete this residential rehabilitation process. A final CISP report, dated 25 September 2024 outlined that while you were admitted into detox on 10 September 2024, you discharged yourself on day four. I am told that this regrettable decision was because you were unable to focus on your treatment. You felt stressed and that you needed to be with your family, particularly as your mother had just undergone surgery.

15You have ceased all contact with your pro-criminal social peers since your mother's surgery was conducted. You advised the author in that report that you had remained abstinent from GHB and ICE since your release from detox and continued to take medication to manage your substance addiction.

16In an updated letter to the court from CISP dated 9 October 2024, it confirms that you have requested to be assessed to re-enter the detox unit and access AOD counselling for post-withdrawal support.  An updated admission date is yet to be provided.

17Overall, you have presented to be motivated to change while subject to CISP. You complied with the program and are aware of the challenges you will face in the community in the future. You gained a level of insight into the problematic nature of your previous substance use. The author is satisfied that you have displayed a genuine motivation to cease your illicit substance use and your consistent compliance with supervision treatment was commended.

181,4-B is an industrial solvent which is said to be closely related to GHB. A commercial quantity of 1,4-B is 2 kilograms. The total weight of 1,4-B located at the storage unit equates to 5 and a half kilograms, which accordingly amounts to over two and half times the commercial quantity.  While this is a substantial amount, the prosecution accepts that you did not intend to traffick in a commercial quantity and this charge has proceeded on the basis of trafficking simpliciter. A traffickable quantity is 50 grams; the amount assessed is approximately 110 times the amount prescribed as a traffickable quantity.

19While the prosecution notes that your trafficking was for a financial benefit, it concedes that you conducted low level transactions that did not result in large financial reward. It is accepted that the primary purpose of trafficking was to fund your own drug use. Further, there is no evidence that you had a network of suppliers or distributors, nor were any significant proceeds located.

20While legislation does not distinguish between different drugs, courts have recognised that 1,4-B is a lower value drug that is relatively easy to access. Comparatively lower sentences have been imposed, given the reward differential.[1] 

[1]                  DPP(Cth) v Maxwell [2013] VSCA 50, para 33 + 34

21Charge 3 relates to a single day where you were in the possession of equipment that was capable of making false identification documentation. This shows a degree of planning to deceive identification and facilitate trafficking, although there is no evidence that this was utilised in your case and no explanation has been provided.

22The imitation firearm is a small imitation handgun. Four rounds of assorted ammunition were located within the same area, and you are charged with the possession of all these items on a single day. The imitation firearm was located in a small bag inside a filing cabinet in the storage unit where the 1,4-B was held. You were a prohibited person, as within a five-year period, you had served a term of imprisonment for an indictable offence. The prosecution submits that your possession of the imitation firearm was for the purpose of your criminal activity. Your counsel notes that it was an old imitation gun and that there is no evidence that it was discharged or used. I accept that while it was a potentially dangerous context in which to have the firearm as a prohibited person, there is no direct evidence that you intended to use the weapon.

23You initially faced a number of offences, including trafficking in a commercial quantity of 1, 4-B which was withdrawn and replaced with the offence of trafficking simpliciter. Your case was listed for a committal hearing on 18 December 2023 and resolved before it proceeded. You pleaded guilty to the current charges on that day. The Prosecution accepts that your plea was entered at an early opportunity. An application for summary jurisdiction was sought and refused. You were committed to the County Court for plea, which commenced on 5 August 2024.

24You are entitled to receive a substantial benefit for your early guilty plea, which has a utilitarian benefit.  You have saved the Court and the community the time and expense of running a trial.  You have facilitated the efficient administration of justice and are entitled to a benefit for that. Your plea of guilty also demonstrates that you have accepted responsibility and shown some remorse for your misconduct. I take that into account in your favour.

25You have admitted your criminal history, being eight prior appearances in the Magistrates' Court for mostly consolidated pleas of guilty, between September 2013 and March 2023. You have prior convictions for numerous offences including matters of dishonesty, driving and possession of drugs. The current incident demonstrates an escalation in the seriousness of your offending.

26You have been sentenced to a total of two short terms of imprisonment in 2020 and 2021. You have also received two community corrections orders ('CCO') in 2018 and 2019, the first of which was contravened. You have struggled to manage your illicit drug use over the past 18 years.  You were in a relationship with Ms Tedesco, another chronic drug user, at the time of your offending. That chaotic relationship has now ended. You admit that your criminal history is related to your heavy drug use and negative peer associations.

27You have spent 195 days on remand for these offences. It is agreed that between 2019-2020, a total of 86 days were spent on remand for unrelated offending and can be taken into account as 'Renzella' time.[2] I note that some of that period was at the outset of COVID-19. I accept that measures taken by Corrections to deal with the pandemic added to your hardship as a prisoner and I take that into account.

[2]                  R v Renzella [1999] VSCA 85.

28Your co-accused, Ms Tedesco has pleaded guilty to a total of 11 offences on two indictments and to four summary offences, including the charges of trafficking (Charge 1) and the possession of equipment to make identification documentation (Charge 3). Her plea included two unrelated offences of attempting to traffick in a commercial quantity of 1,4-B. She admitted her lengthy criminal history, largely of dishonesty and drug related offending. She has been accepted to participate on a Drug and Alcohol Treatment Order in this court and received a total effective sentence of four years' imprisonment.[3] 

[3]DPP v Tedesco [2024] VCC 1530 (unpublished). Sentence delivered by Judge D Sexton, 1 October 2024

29I am told that one of the reasons your application for summary jurisdiction was refused was because Ms Tedesco was to be dealt with in the County Court and that it is undesirable for co-accused to be dealt with in separate jurisdictions. While you are co-offenders in this matter and both will be dealt with here, there is a significant disparity in the number of charges you are facing. Further, the overall extent of Ms Tedesco's offending does not align with yours. Despite both of you having issues with drug addiction, you have not sought to be considered for suitability in the Drug Court. Ultimately, I consider that there is no parity issue in all the circumstances here.

30I turn now to your personal circumstances. You were born in Melbourne in July 1991 and are now 33 years of age. You are the youngest in a sibship of five and you also have five maternal half-siblings. Your family are of Lebanese background. Your parents separated when you were four, after which your mother experienced a mental breakdown, resulting in her hospitalisation. During this period, you and your siblings took care of one another. You believe your father had some problems with the law and was abusive towards your mother at times, although you have little memory of this. You maintained some contact with him until you were 21. After you discovered he was diagnosed with cancer, you reconnected with him for around nine months. He died in 2019. You have a good relationship with your mother, whose health is declining in her older age. You have resided with her over the past 12 months and will continue to do so.

31Your schooling was marred by rebellion, association with antisocial peers, truancy and smoking. You completed Year 10 in secondary school, with one period of suspension. You started to work in trade mechanics at the age of 16, and then obtained an apprenticeship as a mechanic. At the age of 19, you commenced work in transport and logistics and obtained a Certificate III in the industry. You were employed full-time at a transport company as a forklift driver and eventually as second-in-charge of the depot, until you left when you were 28 years of age. Your employment since that time has included work at your brother's souvlaki shop but has been interrupted by your lifestyle and periods of incarceration since you were 29 years old. You are currently in receipt of Centrelink benefits and have recently completed an application to become your mother's carer.

32Your substance use commenced with ecstasy in your late teenage years. When you were 19 years old, you started to use cannabis, amphetamines and methamphetamines (ICE) which became daily usage. You began using GHB at the age of 21 and by the age of 23, you used the substance daily.

33You commenced a relationship when you were 20 years old and became engaged to your partner. You lived together in Sunbury, bought some land and built a home on your property in 2017. While you had an issue with drug use for around 15 years, you managed a successful lifestyle. Your relationship deteriorated after the death of your father. Your drug use increased, and you describe yourself as 'going down a hole'. You separated when you were incarcerated. Your drug habit became entrenched after the breakdown of the relationship. You remain amicable and she has remained at that address.

34You then had a brief relationship and have recently discovered that you have a four-year old daughter who resides in New South Wales. You currently liaise with the Department of Families, Fairness and Housing and hope to establish contact with her.

35You commenced a relationship with your co-accused in 2022. You lived together for around two years. You were both incarcerated for the current offending, and your bail conditions precluded any contact with each other. You admit that you were both heavily addicted to drugs during the offending period, using several grams of cannabis, 1 gram of methamphetamine and between four to 150 ml of GHB each day. You have now commenced another relationship.

36In 2020, you were diagnosed with depression. You took anti-depressants for 18 months before ceasing, as you did not notice any positive effect. Though most of your engagement with services in the past has been mandated through community correction orders, you have sought some help voluntarily. You do not feel you gained much from these sessions as you failed to build rapport with practitioners. You have been taking Seroquel since February 2023, and feel it can make you slightly obsessive-compulsive, though you now report your mental health to be stable. 

37At the request of your solicitor, you participated in a psychological assessment with Ms Gina Cidoni, who has prepared a report for court dated 25 July 2024.  Your personal, criminal and mental health history have been summarised in the report. 

38During your assessment, your thoughts were clear and logical, though at times you struggled with articulation and appeared evasive, particularly around the topics of drugs and relationships. Although you have experienced hallucinations and delusions in the past while drug-affected, you did not display any psychotic symptoms. Ms Cidoni noted that your recent use of illicit substances meant that cognitive testing was unable to be conducted, which has compromised the accuracy of other psychometric test results.

39Ms Cidoni has made the following observations and findings:

·You have an ongoing substance use disorder. It affects your thought patterns, leading to decreased logical and abstract thinking, which impairs your ability to make reasoned decisions.

·Though you reported symptoms that are consistent with ADHD, this condition could not be definitively diagnosed due to the effects of your ongoing use of cannabis, methamphetamine and GHB, which can mimic and exacerbate ADHD-like symptoms.

·Your judgment and insight into the effects of your drug use are poor, consistent with your continued substance use and evasive demeanour when discussing it.

·Your substance use is directly related to your offending and has driven your criminal conduct, to support your addiction. It has also impaired your decision making and judgement.

·Your offending appears to be connected to your background and adverse childhood experiences, which created a tumultuous environment during your formative years. I note that while there is no suggestion that these circumstances amount to Bugmy[4] considerations, your drug use and offending history must be viewed in light of your upbringing as a relevant feature of your background.

·You are assessed as a medium risk of reoffending. Your prospects of rehabilitation are contingent upon addressing your substantial substance use issues through detoxification.

[4]   Bugmy v The Queen [2013] HCA 37.

40It is acknowledged by your counsel that the offence of trafficking is serious and agrees with the prosecution that this is mid-range offending, given the quantity of 1,4-B, your role in trafficking, the duration of the offending and your motivation. The harmful effects that flow from the distribution of drugs are well known.

41I consider that deterrence, denunciation and punishment are all relevant sentencing considerations. General deterrence is prominent, given the significant amount of 1,4-B and the serious harm that drugs cause to the community. Rehabilitation also remains a relevant consideration. Your prospects are, in effect, in your hands. The protective factors of your family support, particularly from your mother, remain in place. Given your engagement with CISP over the past 12 months, you have become aware of the challenges you face in the community and have remained motivated to overcome your dependence. I accept that your prospects have improved and are not unreasonable.

42When considering the appropriate penalty, your counsel submitted that a suitably tailored community correction order, in combination with the period you served on remand would be appropriate and satisfy all the relevant sentencing requirements in your case.  The prosecution does not accept your counsel's submission, saying that an immediate term of imprisonment with a non‑parole period is the only appropriate disposition.

43An assessment for a CCO was undertaken on 1 October 2024. When you presented to the corrections officer, you positively engaged in the assessment. You showed some insight into the background of your offending saying that it was required to supply finances in order to support your daily drug use. You admitted a significant and long-standing history of problematic poly-substance use and at the time of the offending, you were using GHB and ICE. You admitted that your offending was stupid, although you had difficulty acknowledging the impact trafficking has on the community.

44You are now abstinent from GHB but admit that you use ICE daily. You described your desire to cease all illicit substance use and acknowledge that the use of ICE will be 'the hardest habit to kick'. While your continued drug use complicates this sentencing exercise, I am encouraged by your degree of insight into this difficult problem.

45You are willing to participate in mental health assistance while in the community. It is recommended that this be part of a CCO.

46You have been assessed as a high risk of general reoffending behaviour and deemed an appropriate candidate for a CCO. You acknowledge that you do have the capacity to comply with obligations pertaining to a corrections order. You have indicated that you are willing to comply with the order and you have been found suitable.

47I have considered and propose to apply the decision in Boulton v The Queen[5] which provides authority that even in relatively serious cases, a CCO may be an appropriate disposition.

[5] (2014) 46 VR 308 at 338 [131].

48I take into account the maximum penalty for these offences and current sentencing practices. I have considered the cases to which I was referred by the prosecution. The principle of totality is relevant, and I have taken care not to doubly punish you for these offences. I take into account the time you spent in custody on remand.  I also take your 'Renzella' time into account when determining the appropriate period of imprisonment. The steps you have taken to comply with CISP over the last 12 months are encouraging and I take into account your supervision on bail.

49I will impose a combination disposition that does not require any further incarceration. I accept that ongoing supervision will be of benefit to you and the community. Balancing these factors as best I can I sentence you as follows:

Charge no.	Charge	Penalty
1	Traffick drug of dependence	6 months’ imprisonment + CCO
2	Prohibited person in possession of imitation firearm	4 months’ imprisonment + CCO
3	Possess equipment to make identification document	CCO
4, 5	Possess drug of dependence	CCO
Summary charge 6	Possess cartridge ammunition	CCO
Summary charge 9	Commit indictable offence on bail	CCO
TES	6 months’ imprisonment. Both sentences to be served concurrently
PSD	195 days
S6AAA	1 year and 10 months’ imprisonment NPP 1 year and 3 months
Forfeiture & disposal	1.    2 x containers of clear liquid 2.    1 x ziplock bag with white crystal substance 3.    Assorted documentation 4.    imitation handgun

50In relation to all of the charges, including those two charges where you have been sentenced to imprisonment and the summary charges, you are convicted and sentenced to:

·A 12 month community corrections order.

·You are to report to the Melbourne Justice Service Centre within two working days of being sentenced. That will be by 4 o'clock on 14 October.

·You are to perform 120 hours of unpaid community work.

·You are to comply with supervision,

·To undergo assessment and treatment as directed for your drug use

·To undergo assessment and treatment as directed for your mental health

·I direct that 50 hours of treatment and rehabilitation may be accredited to the community work hours.

51I confirm the 'Renzella' time has been taken into account when determining the appropriate period of imprisonment.

52My associate will print out the corrections order.  I will ask Mr Habboushi if he could come and take a seat behind your counsel.  Mr Davis, can I get you to take him through the initial standard conditions ‑ ‑ ‑

53MR DAVIS:  Certainly, Your Honour.

54HER HONOUR:  ‑ ‑ ‑ and then the special conditions here?  Thank you.

55MR DAVIS:  I will read it to him, thank you.

56HER HONOUR: Mr Davis, you have been through the conditions, is Mr Habboushi prepared to comply with the order?

57MR DAVIS:  He is, Your Honour. He has signed it.

58HER HONOUR:  All right, thank you. 

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