Director of Public Prosecutions v Hamzy

[2016] VCC 887

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01856

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAYSAM HAMZY

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2016
DATE OF SENTENCE:	24 June 2016
CASE MAY BE CITED AS:	DPP v Hamzy
MEDIUM NEUTRAL CITATION:	[2016] VCC 887

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu	OPP
For the Accused	Mr P. Morrissey S.C	KOUTSANTONI & ASSOCIATES

HIS HONOUR:

1Haysam Hamzy, today you pleaded guilty to two charges on the Indictment number F13075253. 

2Charge 1 was trafficking in a drug of dependence not less than a commercial quantity.  The drug was cocaine.  The maximum penalty for that charge is 25 years' imprisonment.

3Charge 2 is knowingly deal with the proceeds of crime.  The proceeds of the crime were $205,850. The maximum penalty for that charge is 15 years' imprisonment. 

4You also admitted your criminal record filed with the indictment.  You have a very bad driving record in New South Wales.  There are no relevant drug offences in your criminal history.

5On 2 September 2014 you pleaded guilty to trafficking in no less than a commercial quantity of methylamphetamine and one charge of trafficking cocaine.  The offending occurred on 21 July of 2012.  On 19 March 2015 for those offences you were sentenced to six years' imprisonment with a non-parole period of four years.  You are currently serving that sentence.

CIRCUMSTANCES OF YOUR OFFENDING

6In this case you were trafficking cocaine to Kresimir Basic and Mamdouh Dakiz.  You arranged for the delivery of 830 grams of cocaine from New South Wales to Dakiz, Basic and McPherson here in Melbourne.

7You used a delivery person by the name of Foster to transfer the cocaine from New South Wales to Victoria.  Dakiz gave Foster a total of $205,850 as part payment for the drugs.  The deal took place in July of 2012.  The deal in this case preceded the transactions that have led to your current imprisonment.  Both sets of offences occurred in the period around July of 2012.

8As the supplier of drugs to Dakiz and Basic you are a more senior member of the criminal enterprise.  The amount of the drug is, on my calculations, three times the minimum quantity for commercial quantity for that drug.

PERSONAL CIRCUMSTANCES

9You are 30 years of age.  You were born in Auburn in New South Wales and you have four siblings.  You attended Berala Primary School to Grade 6.  You completed Year 10 at Granville Boys' Secondary College.  During the course of your education you had difficulties with English because in the family home Arabic was the language spoken.

10After school you worked in casual employment.  You worked as a mechanic's assistant, an electrical assistant, a paver layer and a plumber's assistant until approximately 19 years of age.  By that time you were in a drug using peer group.

11When approximately 20 years old you married your wife, Meral.  You have three children with her, Zian aged 7 years old and Basam, who is five.  You have a young daughter, Amaziyah, who has recently turned one.  Your daughter has a serious heart condition known as tricuspid atresia and an undeveloped right ventricle.  She has already had significant open heart surgery.  It is anticipate she will require further heart surgery when she is approximately three years old.

12Your family are familiar with the criminal justice system.  Your father and three brothers have been imprisoned in New South Wales for drug related offences.  Your brother is serving a sentence in Goulburn Prison for murder.  Your mother was shot in the stomach whilst in the family home in December 2014, some six months after these events. Your only sister has five children and has had no contact with the criminal justice system. 

13Your wife currently lives in Meadow Heights with your children.  She visits you in prison.  At the time of the offending you had been separated from her for approximately two and a half years.  You were using drugs persistently at the time leading up to your offences before the court.

14You hope to reunite with your wife and children upon your release from prison.  You have an offer of employment upon your release from prison from Mr Allouche.  I have taken into account the personal references tendered in Exhibit 4. These people speak of a caring and reliable person who has a desire to change his life for the better upon release from prison.

15Mr Cummins, psychologist, assesses you as low/average intelligence.  He stated that you find your gaol time going very slowly.  He said that you had been prescribed Seroquel to deal with mood stabilisation.  Other than adjustment disorder you do not suffer any relevant psychological or psychiatric problems.

SENTENCING CONSIDERATIONS

16The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.

17I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.  I also have to take into account current sentencing practices for drug trafficking and the dealing with proceeds of crime.

18This offending by you is a commercial operation.  You are the supplier of cocaine from New South Wales to your Victorian joint criminal enterprise partners, Dakiz and Basic.  You organised the supply and the delivery of the drug to them in Victoria.  I find that you are more senior in the chain of supply of the drug than Mr Dakiz.

19In consideration of the issues of totality of the sentence I find that your role in the Lakkis trafficking charges which were heard by Judge Saccardo, confirms the finding of your position of a supplier of drugs to Victorian criminals.  In Lakkis' case those offences included methylamphetamine and cocaine.  In this Indictment you are charged with the one charge of not less than a commercial quantity of drug which was cocaine, and one charge of dealing with the proceeds of crime, which was as I said before $205,850.

20You have pleaded guilty at an early stage in these proceedings.  The plea was indicated at the committal mention proceedings in October 2015.  Your plea has the utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates public confidence in the legal process set up to protect the community.

21Your plea also is a clear acknowledgement by you that you accept your responsibility for your criminal behaviour in this case.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept your plea of guilty to these charges indicates and demonstrates remorse on your part.

22In your case delay is a factor in sentencing you for these offences.  You were sentenced in March 2015 by Judge Saccardo for what I have referred to as the Lakkis related offences.  The charges were drug trafficking in not less than commercial quantities.  The sentence was a total effective sentence of six years' imprisonment with a non-parole period of four years.  At that time a pre-sentence detention of 174 days was declared.

23The offending for the Lakkis charges and the offending I am now dealing with all occurred in July of 2012.  The delay in this matter is not of your making.  Your counsel was not seeking to blame or lay the blame for the delay on the prosecution.  The fact is there was a considerable delay between the offending and the resolution of these charges today.

24The effect of the delay is connected to the principles of totality in sentencing in your case.  I have to consider what would be an appropriate total sentence if all of your offending, that is the Lakkis charges and the Dakiz/Basic trafficking charges had all fallen for consideration at the same time.

25I also take into account the principles of parity in sentencing.  Your counsel urged me to consider Basic's sentence of four years for the trafficking of not less than a commercial quantity as a comparable sentence, and discount that sentence for your plea of guilty.

26On the matter of parity the principle is equal justice for equal criminality.  I consider your criminality as the supplier to Dakiz and Basic as higher than Dakiz.  I note that your prior criminal history is less than Dakiz and/or Basic.  I also take into account your plea of guilty when assessing the appropriate parity of sentence between you, Dakiz and Basic.

27The provisions of the Sentencing Act in relation to serious drug offending are relevant in sentencing you in Charge 1 here. Section 89DI requires that I declare that in respect of Charge 1 on the Indictment you are declared to be a serious drug offender. The relevance of that declaration is that the protection of the community is to be given full and proper consideration when fixing your sentence for that charge.

28I have regard to your prior criminal history.  You have, as I have said before, an extensive criminal history which is mainly related to driving offences in New South Wales.  You have no relevant drug prior convictions.  Your history to Mr Cummins is that you have had a long-term drug addiction.  From age 18 you have been a methylamphetamine, GHB and cocaine user.  The poly drug abuse continued until your arrest in January of 2013.  You have failed a urine screening in custody where Bupremorphine was detected.  This resulted in your move from Marngoneet Prison to Barwon Prison.

29The drug addiction and use over a long period of time is indicative of a low chance of successful rehabilitation on your part unless you get control of your drug addiction.

30On the other side of the ledger you have a supportive wife who continues to visit you in prison.  She is originally from New South Wales like you are.  The family plan is for you to resume living with your wife and three children upon your release.  You have an opportunity to work for Mr Allouche in the construction related employment as I understood it.

31Your family background is set out in Mr Cummins' report dated 9 June 2016, which is Exhibit 2 on the Plea.  Your father and three brothers have all been imprisoned for drug trafficking offences in New South Wales.  Mr Morrissey relied on your family background to submit your moral culpability for these offences is less because of that background.

32I do not accept that proposition.  You have a sister who lives in the same house and is a law abiding citizen and supports her family and your mother.  Through your choice to live the life of a drug user you have taken the easy road to finance your habit and life generally by engaging in drug trafficking.

33I consider your moral culpability for these offences as high.  I take into account the fact that your one year old daughter has a serious heart issue.  She has already had surgery and it is anticipated that she will require further surgery at the age of three years old.  This factor does not reach the level of exceptional circumstances test that is required to attract the exercise of mercy by the Court in sentencing you for these offences.

34In considering the fixing of a non-parole period which would be a new non-parole period pursuant to s.14 of the Sentencing Act I have taken into account the objective gravity of the offending, the mitigating factors that favour your rehabilitation and the interests of the community in fixing that sentence.

35Would you stand please?

36On Charge 1, the charge of trafficking, you are convicted and sentenced to five years' imprisonment.  That is the base sentence. 

37On Charge 2, the proceeds of crime charge I sentence you to one year imprisonment.  I order that six months of the sentence in Charge 2 be served cumulatively on the sentence in Charge 1.  That is a total effective sentence of five and a half years imprisonment.

38I fix a four year non-parole period from this date, which is 24 June 2016.  That is the new non-parole period. 

39But for your plea of guilty in respect of the other two charges in this indictment I would have sentenced you to seven years with a five year minimum.

40I declare that you have been sentenced as a serious drug offender pursuant to s.89DI of the Sentencing Act and I have signed the disposal and forfeiture orders. 

41Is there anything else?

42MR PORCEDDU:  No, Your Honour.

43MR MORRISSEY:  No, Your Honour.

44HIS HONOUR:  Thank you.  Remove the prisoner, thanks.  Mr Porceddu and Mr Morrissey, thanks very much for your assistance in this case.  Mr Porceddu, if you could pass onto the informant it has been a long journey over this case.

45MR PORCEDDU:  Yes, Your Honour.

46HIS HONOUR:  I want to thank him for all the organisation over the last trial and over these matters that have finally come to a close.

47MR PORCEDDU:  Yes, Your Honour.

48HIS HONOUR:  Thank you.

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