Director of Public Prosecutions v Halabi
[2023] VCC 2381
•15 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02156
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AZZAM HALABI |
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JUDGE: | JUDGE DAWES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2023 | |
DATE OF SENTENCE: | 15 December 2023 | |
CASE MAY BE CITED AS: | DPP v Halabi | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2381 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trafficking in a drug of dependence; possession of a drug of dependence; prohibited person in possession of a firearm; possess prohibited weapon; dealing with property suspected of being proceeds of crime; trespass
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: 2 years’ 6 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Crouch (plea) | Office of Public Prosecutions |
| For the Accused | Mr C. Nikakis | Haines & Polites Lawyers |
HER HONOUR:
1Azzam Halabi, you have pleaded guilty to the following offences that occurred on a single date, being 25 July 2019.
CHARGES
OFFENCE
MAXIMUM PENALTY
Charge 1
Trafficking in 1,4-Butanediol
15 years’ imprisonment
Charge 2
Trafficking in methylamphetamine
15 years’ imprisonment
Charge 3
Possession of diazepam
1 year imprisonment
Charge 4
Prohibited person in possession of a firearm
10 years’ imprisonment
2You have also pleaded guilty to the following related summary charges which occurred on the same day.
CHARGES
OFFENCE
MAXIMUM PENALTY
Charges 3 and 19
Possess prohibited weapon (a card knife and a taser)
240 penalty units or 2 years’ imprisonment
Charge 4
Dealing with property suspected of being proceeds of crime ($1,663)
2 years’ imprisonment
Charge 9
Trespass at 6 Parsley Street and 4 Alexandra Gardens, Caroline Springs
6 months imprisonment
3At the time of your offending, you were 31 years of age. You resided with your wife and five-month-old daughter, in rental accommodation in Caroline Springs.
4The circumstances of your offending have been provided in the Summary of Prosecution Opening. It is agreed to be an accurate account of events. A general summary of the facts is as follows.
5On 24 July 2019, a domestic incident occurred at home between you and your wife. Police attended and assisted your wife to leave, taking your daughter with her to stay at her mother’s house. You remained at your address. Police then applied for a Family Violence Intervention Order, where your wife was the affected family member.
6On 25 July 2019 at 10.04 pm, four police officers attended your home to investigate the incident on the previous day. When they arrived, you were standing in the front yard near your car and shouted, “What are you doing here?” You then ran inside the house and slammed the door behind you.
7One officer tried to speak to you through the front door. At the same time, another officer observed the lights on the car flash and the door lock click. Shortly after this, you were heard in the garage saying, “come here”, before the sound of your dog’s paws were heard and you yelled, “sick em”, multiple times.
8One police officer eventually secured the dog and the other officers entered the house, to search for you. In the course of the search, one officer went into the main bedroom and located an esky on the bed, underneath the doona. It had several bottles inside it, which contained a clear liquid.
9By this time, you had left your home and ran across the roof of one of your neighbour’s homes. Police soon located you at another nearby property. You were arrested and a search was conducted. Police located $1653 in the pocket of your pants. You were transported to the police station and a further search was conducted. A number of items were located, including a black credit card knife, 12 diazepam tablets and two $5 notes, one of which was rolled up.
10A record of interview commenced but soon ended, as you were uncooperative with police. You were charged with a number of offences and remanded into custody. You did not provide an explanation for your offending conduct. Even though you have now entered your guilty plea, there has not been any forthcoming explanation.
11Your wife was charged as your co-accused, although the case against her was discontinued. Your relationship with her has now ended.
12At 4.10 pm a warrant was issued under the Drugs, Poisons and Controlled Substances Act and your home was searched. Police located a number of items including:
· four bottles containing a clear liquid substance;
· two zip lock bags containing a white crystal substance;
· a money counting machine;
· a black conducted energy device, known as a taser;.
· one set of digital scales and four plastic funnels;
· a tick book.
13Your car was also searched and contained:
· a ‘pen pistol’ firearm in the front passenger seat glove box;
14Subsequent analysis of the substances located confirmed that:
· the clear liquid substance in the four bottles consisted of 1,4-Butanediol, with a total weight of 6009.1 grams;
· One zip lock bag containing a white crystal substance consisted of methylamphetamine, which weighed 0.2 grams at 77 percent purity;
· One zip lock bag containing a white crystal substance consisted of methylamphetamine, which weighed 38.6 grams at 78 percent purity.
151,4-Butanediol is an industrial solvent which is widely used by young people in nightclubs and is said to be closely related to GHB. A commercial quantity of 1,4‑Butanediol is 2 kilograms. The total weight of 1,4-Butanediol equates to just over 6 kilograms, which accordingly amounts to three 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 120 times the amount prescribed as a traffickable quantity.
16A traffickable quantity of methylamphetamine is 3 grams. The total amount of methylamphetamine was 38.8 grams, mixed, which amounts to 12 times a traffickable quantity.
17The pen gun was analysed as a .22 Rimfire calibre, homemade single shot handgun with no serial number. You were a prohibited person at the time, as you had been sentenced to a term of imprisonment within the previous five years.
18You were remanded on 25 July 2019. You were released on bail on 19 November 2019, after serving 118 days in custody. Conditions of bail included to attend an assessment at Arrow Health and to participate in any recommended program to deal with your drug addiction. However, you did not engage with this facility for long and it was of little benefit.
19Your bail was soon varied. Strict conditions were then imposed, including a curfew between 9 pm and 5 am, a residential condition, and reporting to police three days per week. There is no dispute that you were required to comply with these conditions for approximately two years, as every time you were released from undergoing subsequent periods of imprisonment, these conditions of bail continued. While the reason these conditions were imposed was to manage your conduct in the community, they also amount to a substantial imposition of your liberty and are a form of punishment already occasioned. The conditions of undertaking your bail are punitive and I take them into account.
20When you were first charged, you faced a number of offences, including trafficking in a commercial quantity of 1,4-Butanediol. Your matter was initially listed in the indictable stream, even though the prosecution had not yet received a certificate of analysis. I am told that the drugs were taken into a laboratory for assessment in September 2019.
21A few months later, the matter was returned to the summary jurisdiction. Your case was listed in the Sunshine Magistrates’ Court for mention on 19 February 2020 and then contest mention on 9 April 2020, 27 May 2021 and 9 June 2021. It is accepted that issues related to the COVID-19 pandemic resulted in a delay in the court proceedings.
22A certificate of analysis was eventually obtained and your matter returned to the indictable stream on 17 June 2021. The charge of trafficking in a commercial quantity of 1,4-Butanediol was reinstated. A contested committal was conducted in October 2021. You were committed to stand trial and entered pleas of not guilty. An ongoing issue in your case was raised about the initial search of the property that was conducted by police and whether it was legitimate, as the attendance of police was initially related to family violence. Ultimately, this issue did not proceed to trial.
23Your case was first listed in the County Court for directions hearing on 5 November 2021, and then listed for nine further directions hearings or funding mentions, in order to determine whether you had the capacity to privately fund the trial and then whether Legal Aid would be prepared to do so. Your trial was eventually listed to commence on 15 March 2023 and estimated to take five days.
24The charge of trafficking in a commercial quantity of 1,4-Butanediol was ultimately withdrawn and replaced with the offence of trafficking simpliciter. On 15 March 2023, you admitted the current offending, the trial was vacated, and your matter was adjourned for a plea to proceed on 6 September 2023. There was a further adjournment sought and the plea was eventually heard on 8 December 2023. I am told that you had considered obtaining a psychiatric assessment which ultimately did not proceed. There has been no other explanation for the further delay of almost nine months.
25Your case has been hanging over your head for more than four years. Issues related to the pandemic did result in an interruption to the efficient running of court proceedings, although you must also bear some responsibility for the time it took to ultimately finalise this matter. I accept that this period of time would have resulted in a source of anxiety for you and that the delay in these proceedings is a relevant consideration. Unfortunately, you have continued to offend and have not used the intervening period to make progress in your rehabilitation.
26The evidence against you has been clear for a long time. I do note, however, you were facing a more serious trafficking charge. Your guilty plea occurred when the lesser charge was agreed to be appropriate, in the course of discussion before your trial commenced. In those circumstances, you are entitled to receive a benefit for your guilty plea, although I note that this matter could have resolved in a more timely way when listed in the summary jurisdiction. Your guilty plea still has a utilitarian benefit. You have saved the court and the community the time and expense of running a trial. Your plea of guilty facilitates the efficient administration of justice and you are entitled to a benefit for that. The utilitarian benefit of your plea is enhanced to a modest degree by the fact that Worboyes’[1] considerations are engaged.[1] Worboyes v The Queen [2021] VSCA 169.
27You have a lengthy criminal history. You have appeared in court for consolidated hearings seven times between June 2011 and April 2019. You have been dealt with for drug offences in the Magistrates’ Court on a number of occasions, including four prior convictions for trafficking, as well as crimes of dishonesty, driving and crimes of violence. You have also been found guilty of possession of an unregistered firearm and possession of a prohibited weapon. You were sentenced in that jurisdiction to relatively short terms of imprisonment on several occasions.
28On 25 June 2014, you pleaded guilty in the County Court to one charge of aggravated burglary, one charge of recklessly cause injury and one charge of fail to answer bail. You were convicted and sentenced to an aggregate sentence of 36 months with a non-parole period of 15 months.
29You were placed on a Community Based Order in 2011 and a Community Correction Order (“CCO”) in 2012. You failed to comply with these orders. Your compliance with other court orders has been poor, including charges of committing indictable offence while on bail, failing to answer bail and breach of a suspended sentence.
30Since the date of the current offences, you have attended court on unrelated consolidated matters on three occasions. Your contravention of court orders has continued with committing offences while on bail, breaching bail conditions and persistent contraventions of a Family Violence Intervention Order. In 2022, you were sentenced to two separate terms of imprisonment of five months each. You were also placed on a therapeutic CCO as part of a combination disposition in December 2022.
31You have three further sets of offences outstanding, which are listed to proceed in the Magistrates’ Court in January 2024. All of these offences have occurred in contravention of your most recent corrections order. I do not take these matters into account when determining the appropriate sentence.
32I turn now to your personal circumstances.
33You were born in June 1988 and are now 35 years of age. You are the youngest in a sibship of four. Your childhood was safe, without any history of trauma, abuse or neglect. Your parents are of Lebanese heritage and your family relocated between Lebanon and Australia on a couple of occasions. You maintain the support of your parents and siblings. At the time of your most recent remand in June 2023, you were on a Jobseeker allowance and resided with your parents. You will return to reside with them upon your release.
34After completing Year 12 at school, you immediately joined the workforce. You had some stable and successful periods of employment, working in your family-owned grocery store as well as in excavation, earthmoving and in construction. You last worked in 2022, as a forklift driver. You have employment available as a front-end loader at a concreting business when you are released.
35Your substance abuse commenced in your late teenage years when you recreationally used cannabis and pills. You then started to use methylamphetamine as part of your peer group lifestyle, when you were 24 years of age. You have also used Buprenorphine in the past.
36After your release from custody when sentenced in the County Court in 2014, you remained abstinent from drugs and alcohol for around two years. You were employed and underwent stability in your lifestyle and relationships. In the past, you have engaged in alcohol and other drug programs, both in the community and during previous times in custody. Regrettably, you have relapsed into the abuse of drugs. I am told that in June 2023, you used five points of ice on a daily basis.
37In 2019, you commenced a relationship and then married your partner. I am told that you both used illicit drugs at the time of the current offending. You separated in early 2023 and have had no contact with her since April this year. Your counsel has described your relationship as toxic, as you both have issues with substance abuse.
38You have two daughters together, aged four and two years. DFFH court orders are in place as the Children’s Court has become involved, through child protection services. Both you and their mother are only permitted to have supervised contact with them; they now reside with your brother.
39Both of these trafficking offences are inherently serious, particularly the first charge, given the significant amount of 1,4-Butanediol. The harmful effects that flow from the distribution of drugs of dependence in our community are well known. Clearly, this was not a low level of drug trafficking, carried out for the sole purpose of funding your own drug use. Your overall offending must have been motivated by a financial benefit. You had a tick book, a money counting machine, a pen pistol and other items to enable your criminal conduct. Your firearm was not securely stored at the time.
40I do not assume that the summary offence relating to the proceeds of crime is a product of the trafficking offences that you have admitted by your plea. However, the total amount of money seized is not insignificant and is suspected as being derived from the business of criminal activity.
41Your drug use provides a context for your criminal conduct. Your prospects are linked to your capacity to avoid relapse upon your release. I consider that your continuous drug use over the years indicates that your prospects have not improved and are guarded.
42While your counsel conceded that a term of imprisonment will be imposed in your case, it was submitted on your behalf that it should be imposed in combination with a CCO. The maximum term of imprisonment available for a combination disposition is 12 months.
43The prosecution submits that a term of imprisonment with a non-parole period is appropriate.
44I am unable to accept your submission as to sentence. I consider that it is unrealistic, given the objective gravity of your conduct in the context of your criminal history. I am obliged to impose a sentence that is proportionate to your criminal conduct and consider that a head sentence of more than 12 months is required.
45Your plea of guilty demonstrates that you have finally accepted responsibility for your offending. When considering your criminal history, I understand that you are not to be punished again for your earlier offences. They are, however, relevant considerations in relation to your moral culpability, your prospects of rehabilitation, the need for community protection and the increased importance of specific deterrence as a factor of sentencing. General deterrence, denunciation and punishment are also important sentencing considerations in matters such as these. The community expects that those who elect to engage in drug trafficking must be punished and denounced for their offending.
46I take into account the maximum penalty for each offence and current sentencing practices. The principle of totality is relevant and I have taken care not to doubly punish you for these offences. I accept that supervision upon release will be of benefit to you and the community and I intend to impose a period on parole. I have endeavoured to tailor your sentence to ensure it is proportionate to your overall criminal conduct.
47Balancing all these factors as best I can, I sentence you as follows:
CHARGES
OFFENCE
SENTENCE
CUMULATION
Charge 1
Trafficking in 1,4-Butanediol
20 months
BASE
Charge 2
Trafficking in methylamphetamine
10 months
+4
Charge 3
Possession of Diazepam
1 month
concurrent
Charge 4
Prohibited person in possession of a firearm
10 months
+4
S/O 3
S/O 4
Possess prohibited weapon (a card knife)
Dealing with property suspected of being proceeds of crime
4 months
4 months
+1
+1
S/O 9
Trespass
2 months
concurrent
S/O 19
Possess prohibited weapon (a taser)
4 months
concurrent
TES
2 years and 6 months
NPP 1 year and 8 months
6AAA
3 years and 4 months
2 years and 4 months
PSD
125 days
48I make the order for disposal of the 16 items listed on the schedule, and I make the order for the forfeiture of the pen pistol. Both of those orders are not objected to. Can I just check, do you both agree that 125 days is the PSD?
49MR NIKAKIS: Yes, Your Honour.
50HER HONOUR: Thank you.
51MS PAPALUCA: Your Honour, my indication was that it was 118 days.
52HER HONOUR: Yes, that was last Friday.
53MS PAPALUCA: My apologies.
54HER HONOUR: His bail was revoked last Friday. Thank you. Mr Nikakis, I will give you a chance to speak with your client.
55MR NIKAKIS: That is okay, Your Honour, I have made arrangements to talk to him on video link either today or tomorrow.
56HER HONOUR: Thank you. Were there any further orders sought, Ms Papaluca?
57MS PAPALUCA: No, they have all been covered, thank you.
58HER HONOUR: Thank you very much, I will leave the Bench.
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