Director of Public Prosecutions v Halloush

[2014] VCC 1811

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01090

DIRECTOR OF PUBLIC PROSECUTIONS

v

MUHANNAD HALLOUSH

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 October 2014
CASE MAY BE CITED AS:	DPP v Halloush
MEDIUM NEUTRAL CITATION:	[2014] VCC 1811

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	Ms T. Tran	Office of Public Prosecutions
For the Accused	Ms M. Brown

HER HONOUR:

1Muhannad Ahmed Mode Halloush, a jury has found you guilty of one charge of importing - can you interpret please sir?

2INTERPRETER:  Yes.

3HER HONOUR:  Importing a commercial quantity of a border controlled drug.  The facts underline the offending are as follows:

4On 17 March 2013 you arrived in Australia with two suitcases, one of which was discovered to contain two packages of methamphetamine wrapped in black plastic and silver foil, each sandwiched between sections of plywood running along the two longer sides of the suitcase and underneath the metal strip lining in the suitcases' main section.  Ultimately the packages were found to contain 3.6923 kg of powder comprising methamphetamine with a purity of 51.1 per cent and 57.5 per cent respectively, or a total of about 2.006 kg of pure methamphetamine.  A commercial quantity of methamphetamine is 0.75 kg or more.  Depending on the way in which and the quantities in which this drug is sold, the estimation of its worth was between $1m eight thousand and $1m one hundred and eighty eight thousand wholesale, or between $1,846,150 and $5,538,450 at street level.

5

This was your first visit to Australia.  You live in Jordan where you are a citizen applying on 31 January 2013 for a tourist visa to Australia which was granted about a month later.  On 14 March 2013 you flew from Jordan to Delhi, arriving the next morning, tickets for which were previously purchased in Delhi for cash.  On the same day bookings were also made via an Indian travel service for you to fly from Delhi to Singapore on

16 March and from Singapore to Melbourne on 17 March.  Those tickets were also paid for in cash.  You arrived in Delhi on 15 March and the next day flew out to Melbourne via Singapore.  Before leaving Delhi on 16 March, tickets were also purchased in India for you to fly from Melbourne to Sydney on

23 March and from Sydney to Jordan on 24 March 2013.  These tickets were also purchased in Delhi in cash.

6Also prior to your departure on 16 March a booking was made online for you to stay at the Sandown Regency Motor Inn in Noble Park from 17 to 30 March and paid for by credit card in another person's name.  Intercepts placed on your mobile telephone revealed that on 13 March you sent a text to an Indian number assigned to one Abu Bakar, asking what had happened and when was your flight time.  That number texted you back on 14 March indicating a ticket had been sent to you.

7Texts sent to and from your phone whilst you were in Bahrain on your way to India and in India informed your wife that you had arrived in Delhi and were awaiting Abu Bakar, to Abu Bakar informing you were at the hotel, a text from Abu Bakar urging you not to come late because, "We have to go to market,” a text to your wife stating that, "He hasn't come yet and I'm still at the hotel waiting for him to bring the money,"  a text from your wife stating, "Did Abu Bakar come and what's the news about the pine/pine nuts?"  These contacts were alleged by the prosecution to be arrangements for you to collect the suitcase containing a methamphetamine and the reference to pine/pine nuts were said to be a code for a border controlled drug.

8

Ultimately when you arrived in Melbourne on the evening of 17 March 2013 you were processed by customs officers because you presented an only partially completed incoming passenger card at the baggage inspection area.  You had two bags with you, the suitcase in which the drugs were ultimately found and a carry on soft sided suitcase, both of which you placed on the

X-ray belt.  The large case was examined and you were asked by the Customs security officer if you had a mat or carpet in the bag to which you replied, "No, have a look".  The bag was inspected and found to contain only clothing, some of it new and some of it old and all of varying sizes.  The suitcase was then weighed and found to be unusually heavy and the Customs security officer felt the bag walls and realised there was something within them on both sides.

9Custom officers were required to attend.  You were then asked a series of questions about your incoming passenger card and if the two cases were all your baggage.  You said only the small one was yours and that the large brown bag containing the methamphetamine belonged to a friend from India who had given it to you to give to someone else in Melbourne that you did not know.  You said you had only packed the blue bag.  Ultimately the methamphetamine was discovered in the sides of the brown suitcase and you were arrested.  Questions and answers by custom officials prior to your arrest took some time and video footage was shown of one stage in those proceedings where you were seen removing a label with your name and address upon it from the brown suitcase.  This was led by the prosecution as conduct involving consciousness of guilt.

10In a record of interview with police on 18 March 2013 you said you were a doctor employed by the Jordan Food and Drug Administration and that you had never been to Australia before and knew no one here.  You said you were carrying the bag for someone who told you it was a present for a person who was going to help you in Australia.  He would pick up the baggage from your motel and would be your tour guide in Australia.  You said you were not aware of what was hidden in the bag.  You said Muhammad Abu Bakar gave you the information, he being a person you had corresponded with by email for a year and a half and who had invited you to India, you having told him you were going to Australia.  Abu Bakar told you, you said, that he knew a person in Australia who would help you here and that you had a money transfer from the Ivory Coast regarding an orphan whom you wanted to help with investing money in Jordan and whose money was in Abu Bakar's bank.  You said that you told police there were US$18m in the bank for the orphan who had inherited money from his father and you having the certificate from the High Court in your bag; being told that the moneys were held in a bank in Australia.

11You told police you had Abu Bakar's phone number and email in your own phone which you offered to them and which they did investigate and during the trial evidence was given by police, that it would appear Abu Bakar does indeed exist and live in India.  You said Abu Bakar had helped make the reservation for you motel accommodation, that he told you the man's name and contact number, that is, the man who was coming to pick up the luggage.  You told police you visited Australia primarily for tourism but also because you were told the orphan's money had been transferred to an Australian bank and that you needed to be present although you did not know the name of the bank but were told the man who came to the motel would take you there.

12A second record of interview conducted on 10 May 2013 involved you giving information about your history as a medical practitioner revealing that in your current position you earned a salary of about US$1600 a month which was about five times the average Jordanian salary.  You said you had US$5,000 to spend in Australia, that you were married with four children, that you were thinking of retiring and that your retirement salary would be insufficient.  You detailed previous travelling in various countries including Egypt, Syria, Lebanon and the Middle East and said you planned the trip to Australia about two months before, you organising and paying for the flights yourself, buying them in India at the advice of Abu Bakar who said flights were about 35 per cent cheaper in Delhi than Jordan.

13You said you first corresponded with Abu Bakar three years before, he being a businessman who had got your details from the Jordanian Chamber of Commerce and discussing with you investment where he proposed buying land, building and selling flats in Jordan which you would finance, your role being as an administrator, that is, a person who would find the land and supervise the building and sales.  It appears this was to be an occupation that would bring you in extra moneys on your retirement.

14You said in so far as the trip to Melbourne was concerned, that you came here on the advice of Abu Bakar who said he had a friend here who would help you out, the friend to whom he wished to send a gift.  You said that Abu Bakar had bought plastic bags from the market into which the intended gifted clothes were placed but you could not fit them into your travelling bag so Abu Bakar sent a friend to the market to buy a suitcase and then put the items in that.  You said it did not enter your mind that there was anything unusual in taking the suitcase, that you had dreamed of coming to Australia since you were a child and had mentioned this to Abu Bakar who encouraged you to go to Australia before your death. 

15You gave no evidence at trial and the defence was run on the basis that the jury could not be satisfied beyond reasonable doubt that you were aware the drugs were in the suitcase.  You were as I have said found guilty of that charge.  I now turn to your personal circumstances.

16You are 59 years old and have no prior convictions.  A curriculum vitae detailing your education qualifications and career which you had brought with you was tendered on the plea indicating that you have in your life as a qualified medical practitioner, worked in a number of hospitals until 2000 when you became director of the Chemical Poisoning Centre, which position you held until 2005 from which time you then held the position of Director of Administrative Directorate and HR with the Food and Drug Administration of Jordan.  Various degrees were detailed that you have undertaken over the years, including a PhD in Public Health Administration and field researches that you undertook in 1999 and 2000.  You have had some involvement with the World Health Organization in that capacity.

17Your parents met in Jordan and you are the eldest of two sons and had what was described as a very good childhood, growing up in a middle class family, your father working as a lawyer and also as a Minister for Internal Affairs in Jordan and your mother being an English teacher.  You completed the equivalent of year 12, qualified as a doctor and had been fully employed since then. 

18In 1990, via an arranged marriage, you met and married your wife, she being 14 years younger than you.  She took on a full time home duties occupation on the birth of the first of your four children.  You have a 22 year old son who did not complete secondary school, does not work or study and is some concern to you, a 19 year old daughter, who is two and a half years into an engineering degree at a Jordanian university, an 18 year old son undertaking a year of college education before entering university and a 13 year old son who is still at school.  You also care for two children born to your brother who was killed in 1999 when their mother was pregnant with the second child.  They are now 15 and 16, their mother left Jordan soon after the birth of the second child and you have cared for those children since.

19A month ago you were informed by your daughter that your wife has divorced you pursuant to Jordanian law which allows a wife to divorce a husband who has been absent without reason for more than 12 months and she has left Jordan and is now living in Kuwait.  You and your family lived in a house rented from friends and your children still live there.  Your daughter whom you speak to by telephone reasonably regularly has told you the family is now in arrears in rent and that she and your second son are parenting the younger teenagers.  You had limited savings which allowed for the rent to be paid for a particular period of time after your arrival in Australia but they are now exhausted.  Your former wife apparently has no contact with the children.

20As a result of this conviction it is unlikely you will be able to practice in your profession again.  It will also mean you have lost entitlements you gained during employment with the Food and Drug Administration because of your unexplained absence of more than a month.  You have some health issues.  You underwent heart surgery several weeks ago for blockages to two arteries.  A stent may have to be inserted in the future.  You are on blood thinning medication.  You suffer sleep apnoea which is being monitored and you have a cyst on your kidneys.  The first trial in this matter had to be aborted because of your sleep apnoea condition because you continued to fall asleep in the presence of the jury.  You are of course isolated and have considerable concerns over the fate of your children.  You are anxious, stressed and depressed understandably about your current situation, but apart from that have no other long standing mental health issues.

21It was submitted to me and no issue was taken with this by the prosecution that your role in this drug enterprise was as courier.  Given the circumstances of the prosecution case, that is, that you carried a suitcase provided to you in Delhi into Australia, which was to be passed on to another unknown person, the absence of any DNA fingerprint or other material on the drug packaging, the fact that all arrangements for your travel were made outside of Jordan and that you only had a small amount of money upon you, satisfy me that this was indeed your role.  I was referred to a large array of sentencing decisions in like cases from courts around Australia.  It was conceded and indeed it has been specifically stated by the Court of Appeal that a sentencing for drug offending such as yours is less in Victoria and this is a matter that I take into account.

22Generally speaking however, it is clear from the authorities in general relating to drug importation which carries a maximum sentence of life imprisonment that mitigatory factors such as a lack of prior convictions added difficulty for prisoners serving a sentence in a country which is not their native land which is more onerous because of isolation and separation from family and friends, are generally of less weight in this kind.  The remark is often been made that drug couriers may be selected precisely because they do not have a prior criminal history and it is often the case that couriers who take the risk of bringing drugs into another country find themselves serving a sentence in gaol in a foreign land.  Nor Mr Halloush have you ever admitted your guilt so that remorse is not a factor in the sentencing exercise I must undertake.

23There was some discussion as to whether or not the jury's verdict should be interpreted as one where the fault element, in terms of the required mens rea was one of recklessness rather than actual knowledge as to the presence of a border controlled drug in the suitcase.  In basic terms, superior courts have held recklessness is not a mitigating factor in such cases such as these but rather that knowledge is an aggravating factor.  Overall however, it would appear that a finding as to the mens rea applicable to the particular case before a court does not very much affect the sentence imposed.  Ultimately it seemed to me in submissions on the plea, the question of your state of mind was not one which was significantly relied upon by either side and I do not propose to enter into a discussion in relation to it. 

24In sentencing you of course, I do take into account your prior crime-free criminal history, the responsible position which you have held professionally for many years (this of course was acknowledged by a counsel to be a double edged sword as it was put to me that a well-educated man earning the comfortable income that I accept you did in Jordan, engages in less excusable behaviour by acting as a drug courier for a substantial amount of an illicit border controlled drug than someone in more desperate circumstances), that you have considerable responsibilities to children in Jordan, that you are isolated and that whilst indeed you conducted a trial, it was in relation to a confined point and was run in a sensible and efficient manner by your counsel.  The health problems that you suffer are matters I also take into account although I note whilst they may make your life in prison more uncomfortable, they do not in my view even in relation to your heart difficulties fall into the particularly serious category.

25I am also prepared to find that you have good prospects of rehabilitation given your previous good history, given the age that you now are and given that it is your intention I accept to return to Jordan as soon as your gaol sentence is completed, to pick up whatever academic work you can and once again support your children.  At the end of the day however you have been found guilty of importing the best part of three times the commercial quantity of the drug methamphetamine.  I do not sentence you, as I must not, for the serious nature of the drug itself, but in general terms when speaking of the great misery caused to a community by the use of such drugs. Methamphetamine, or ice, provides an extremely vivid example.  It is awash in this community.  It is a highly addictive drug.  It can have long term psychological and psychiatric consequences for the addict, who in the meantime undergo disinhibition and mood variation underlying an unfortunately ever increasing range of offences which find their way before the Victorian courts.  Its effects are widespread and terrible and it has a grave effect generally upon the wellbeing and safety of the community.

26This was a drug in great quantity that you brought into Australia for distribution amongst people in our community and would have, had it been released, been responsible for terrible consequences to a vast array of young people and their families.  As a father of young children yourself, you must have some appreciation of how terrible it would be were your children to be so affected by this drug.

27It was not argued that I should deal with you in any way other than by substantial term of imprisonment and it is quite clear having regard to the many cases submitted from my consideration by both counsel that the term of imprisonment you must serve is a substantial one.  I therefore sentence you as follows.  Could you stand up please.

28The charge of importing a commercial quantity of a border controlled substance, you are sentenced to nine years' imprisonment and I order that you serve a minimum term of five and a half years before becoming eligible for parole.  What is the post presentence detention?

29MS TRAN:  591 days, Your Honour.

30HER HONOUR:  I declare that 591 days of this sentence have already been served by way of presentence detention.  Thank you.  Have a seat sir.  Thank you very much, we'll stand down to - is that everything?

31MS TRAN:  Your Honour, there was a forfeiture order ‑ ‑ ‑

32HER HONOUR:  Yes, I have just signed that.

33MS TRAN:  Thank you, Your Honour. 

34HER HONOUR:  Thank you very much.  Yes we will stand down. 

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