Director of Public Prosecutions v Hashmi
[2013] VCC 1200
•2 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00783
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAYEED HASHMI LUKE HELDER AARON ONG |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2013; 22 August 2013 | |
DATE OF SENTENCE: | 2 September 2013 | |
CASE MAY BE CITED AS: | DPP v Hashmi & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1200 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Elwood | OPP |
| For the Accused Hashmi For Accused Helder For Accused Ong | Mr R Van der Weil QC Mr D Cronin Mr D Gray | George Defteros Emma Turnbull Matthew White Associates |
HIS HONOUR:
1 Sayeed Hashmi you have pleaded guilty to the following offences –
i. Trafficking in a drug of dependence, namely methylamphetamine, contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is 15 years imprisonment;
ii. Possession of a drug of dependence, namely methorphan, contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty in the circumstances of this case is one year imprisonment or a fine of 30 penalty units;
iii. Possession of a drug of dependence, namely anabolic and androgenic steroidal agents contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty in the circumstances of this case is one year imprisonment or 30 penalty units;
iv. Possession of a drug of dependence, namely 4 hydroxy butanoic acid, contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty in the circumstances of this case for that offence is one year imprisonment or 30 penalty units;
2 You have also pleaded guilty to a related summary offence of possession of a Schedule 4 poison, namely somatropin, contrary to s.36(B)(2) of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is a fine of 10 penalty units.
3 You pleaded guilty at the committal mention on 26 April 2013 and I have taken your early plea into account in your favour, in mitigation of sentence.
4 Luke Helder, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely methylamphetamine, contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is 15 years imprisonment. You also pleaded guilty at the committal mention on 26 April 2013 and I have taken your early plea into account in your favour in mitigation of sentence.
5 Aaron Ong, you have pleaded guilty to one charge of possession of a precursor chemical, namely ephedrine sulphate, contrary to s.71D of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is five years imprisonment or a fine of 600 penalty units.
6 You have also pleaded guilty to six charges of possession of a drug of dependence, contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981. The drugs the subject of those charges are testosterone, diazepam (Valium), oxazepam, alprazolam, heroin and methylamphetamine. The maximum penalty for each of those offences is one year imprisonment or a fine of 30 penalty units.
7 You have also pleaded guilty to three related summary offences, namely –
i. Possession of ammunition contrary to s.124, sub-s.(1)(a) of the Firearms Act 1996. The maximum penalty for that offence is a fine of 40 penalty units.
ii. Possession of suspected proceeds of crime, contrary to s.195 of the Crimes Act 1958. The maximum penalty of that offence is two years imprisonment.
iii. Possession of a prohibited weapon contrary to s.5AA of the Control of Weapons Act 1990. The maximum penalty for that offence is two years imprisonment or a fine of 240 penalty units.
8 You also pleaded guilty at the committal mention on 26 April 2013 and I have taken your early plea into account in your favour in mitigation of sentence.
9 The prosecution opening was read to the court and your respective offending may be summarised as follows:
10 In September 2011 police received information that premises occupied by the accused Hashmi and his partner Kate Benden were being used for the manufacture of amphetamine. On 13 October 2011 those premises at Shibor Drive, Vermont, were placed under surveillance by investigating police. After police intercepted a number of telephone conversations and arrested Christopher Young at the Manhattan Hotel in Ringwood, in possession of 27.6 grams of methylamphetamine, a warrant was executed at the premises at 9.10 pm that day.
11 When police entered the premises you, Hashmi, and you, Helder, were present, as was Hashmi's partner Benden. All three were in a laundry in which was an operating clandestine laboratory which was at that time producing methylamphetamine. The premises were searched and located in Benden's handbag was $10,275 in cash.
12 The clandestine laboratory involved the manufacture of 126.9 grams of methylamphetamine and also located was further equipment containing a further 21 grams of methylamphetamine, and equipment and chemicals for use in the manufacture of that substance. A number of other illegal drugs of dependence, and anabolic and androgenic steroids, were located, which are the subject of Charges 2 - 4 and the related summary offence in the case of Hashmi.
13 A warrant was also executed at premises occupied by Ong in Greenslopes Drive, Mooroolbark, and located during the search were a number of drugs of dependence, the subject of the charges before the court, in his case, and the precursor chemical, together with equipment used in the manufacture of amphetamine, the items the subject of the related summary offences were also located at those premises.
14
In the cases of Hashmi and Helder the charge of trafficking in a drug of dependence is constituted by the manufacture of that substance on
13 October 2011.
15 Methylamphetamine is a pernicious and destructive substance that causes incalculable damage in our society. Persons who manufacture it to traffick it for profit must expect significant punishment upon conviction and the sentences I will impose must be calculated to deter you and others from offending in this way. Your conduct must also be denounced by this court. The sentences I impose must also be calculated to deter all three of you, and others, from the possession of illegal drugs of dependence.
16 I now turn to your personal circumstances –
17 Sayeed Hashmi, you were born on 15 April 1984 in Afghanistan and are now aged 29. You have admitted ten prior convictions from four separate court appearances. You have twice been sentenced to terms of imprisonment for serious offences of violence and you have prior convictions for the possession and use of illegal drugs of dependence and a conviction for handling stolen goods.
18 I have received in evidence two psychological reports of Alison Maynard, a consulting forensic psychologist, detailing your background and psychological profile. I accept that your childhood and developmental years were seriously disrupted by the civil war in Afghanistan and the extreme violence that you were exposed to. Your family fled Afghanistan and thereafter you, your sister, and brother, and mother were abandoned by your father and you lived in refugee camps in Pakistan. You arrived in Australia in 1998. You had difficulties settling in and you were bullied at school.
19 It was submitted on your behalf that your prior convictions for offences of violence were in response to violence directed to you and your brother, by gangs in the area in which you lived. You also developed a polysubstance abuse disorder and this in part explains your offending on this occasion.
20 You are currently in a stable relationship with Ms Benden and you have a child aged nine months. I heard evidence from Ms Benden's father and I accept that you are a caring father yourself and that you have the support of Ms Benden's family. It would appear that your work history has been intermittent and the vague evidence I heard from Peter Norris regarding your involvement in his clothing and tattoo business was not such that I could conclude that you have regular stable employment available to you on your release from prison.
21 In my opinion, any assessment of your prospects for rehabilitation must be guarded.
22 In relation to the substances in your possession, the subject of Charges 2 and 3, it is appropriate that the penalty I impose is cumulative on the penalty I impose for trafficking. You were in possession of not insubstantial quantities of those substances and Charge 2 is a rolled up charge.
23 The substance in relation to Charge 4, however, concerned a very small amount of the drug, GHB.
24 Luke Helder, you were born on 28 May 1988 and are now aged 25. You have no prior convictions but in 2012 you were placed on a Community Corrections Order by the Ringwood Magistrates' Court in respect of trafficking in methylamphetamine. Your offending in that instance occurred in June 2011. You successfully completed the Community Corrections Order and during the period of the order performed 130 hours of community work and undertook treatment and assessment for drug addiction.
25 I heard evidence from your mother Julie Helder as to your family background and medical history, and in particular the impact upon you of surgery at the age of 12 to remove a benign tumour from your spine. Your illness severely disrupted your schooling and you ultimately left school at 15 and shortly thereafter began using illegal drugs of dependence and you became estranged from your family. Since being charged with these offences you have returned to your family home and maintained a drug free lifestyle.
26 I accept that your prospects for rehabilitation are very good. Your mother was an impressive witness and your family now appreciate the extent of your drug addiction and your need for ongoing support. In your case I accept that it is appropriate for me to fix a shorter than usual non parole period in order to facilitate your very good prospects for rehabilitation.
27 Aaron Ong, you were born on 15 September 1985 and you are now aged 27. You have admitted a number of prior convictions or findings of guilt for possession and use of illegal drugs of dependence and minor driving offences. You have previously been placed on relatively short Community-based dispositions, intended to facilitate your rehabilitation from a long standing history of drug addiction.
28 Your father is Thai, and your mother Italian, and you have three older sisters. You are the only member of your family to have had contact with the criminal justice system. Your education was disrupted as a result of dyslexia and you left school in Year 11 and trained as a motor mechanic, a field in which you showed considerable aptitude. I heard evidence from your sister Cheri Ong, as to your disrupted education, and the development of your drug addiction. She gave evidence that you have resumed contact with your family since being charged with these offences and that you appear committed to living a drug free lifestyle.
29 I also heard evidence regarding your current employment as a plasterer.
30 You were not charged with the serious offence of trafficking in a drug of dependence and following your plea in mitigation I directed that you be assessed for suitability for a Community Corrections Order. I have received a report from Corrections Victoria stating that you are suitable for such a disposition.
31 I have been referred by the prosecutor to sentences imposed in the Magistrates' Court on Christopher Young and Kate Benden, who were also charged following this investigation. Their offending is at a much lower level than the offending of Hashmi and Helder, and the sentence imposed on Young for trafficking 27.6 grams of methylamphetamine does not in my opinion provide a guide to the appropriate proportionate penalty to be imposed in this case by me.
32 It is not possible to determine the precise nature of the roles played by Hashmi and Helder in the manufacture of the methylamphetamine, although I do not accept that the clandestine laboratory was operated at Hashmi's premises simply because it was a convenient location for that to occur.
33 In the result the sentence of the court is as follows –
34 Sayeed Hashmi in relation to the charge of trafficking in a drug of dependence you are convicted and sentenced to be imprisoned for two years and four months;
35 In relation to the charge of possession of methorphan, you are convicted and sentenced to be imprisoned for one month;
36 In relation to the charge of possession of anabolic and androgenic steroidal agents you are convicted and sentenced to be imprisoned for one month;
37 In relation to the charge of possession of GHB you are convicted and sentenced to be fine $500;
38 In relation to the related summary offence of possession of a Schedule 4 drug you are convicted and sentenced to be fined $300.
39 I order that the sentences on Charge 2 and 3 be served cumulatively on each other and on the sentence imposed on Charge 1. This makes for a total effective term of imprisonment of two years and six months.
40 I order that you serve 18 months imprisonment before becoming eligible for release on parole.
41 I declare that you have served 15 days pre-sentence detention not including today.
42 I order a stay of one month in relation to the payment of the fines. But for your plea of guilty I would have sentenced you to a term of imprisonment of four years and imposed a non parole period of two years and six months.
43 Luke Helder, in relation to the charge of trafficking in a drug of dependence you are convicted and sentenced to be imprisoned for two years.
44 I direct that you serve nine months before becoming eligible for release on parole.
45 I declare that you have served 11 days imprisonment, not including today, by way of pre-sentence detention.
46 But for your plea of guilty I would have sentenced you to three years imprisonment and imposed a non parole period of 18 months.
47 Aaron Ong, in relation to all of the charges before the court you are convicted and sentenced to be placed on a Community Corrections Order for a period of two years, on the following core conditions:
48 You must not commit, during the period of the order, whether in or outside Victoria, an offence punishable by imprisonment;
49 You must comply with all requirements prescribed by the regulations;
50 You must report to and receive visits from the secretary of Corrections Victoria during the period of the order;
51 You must report to the Lilydale Community Corrections Services Centre, today, that is 2 September 2013, at 3 pm;
52 You must notify the secretary of Corrections Victoria of any change of address or employment within two clear working days of the change;
53 You must not leave Victoria except with the permission, either generally or specifically, of the secretary of Corrections Victoria;
54 And you must comply with any direction given by the secretary during the period of the order.
55 On the following further special conditions - you must perform 100 hours unpaid community work during the period of the order.
56 You must submit yourself for treatment and assessment for drug dependence.
57 You must also submit yourself for treatment and assessment for alcohol dependence.
58 You must also be the subject of supervision by Corrections Victoria during the period of the order.
59 Mr Ong do you agree to entering in to an order in those terms?
60 ACCUSED ONG: Yes.
(short adjournment)
HIS HONOUR: There's just one procedural matter that I need to clarify. We've contacted Mr Hashmi's legal representatives, but Mr Deftros hasn't been able to be contacted.
MS DOYLE: Yes Your Honour.
HIS HONOUR: So if you could inform him please Ms Doyle. What occurred was I misread the s.6AAA declaration in Mr Hashmi's case. What I stated was but for his plea of guilty I would have imposed a total effective sentence of four years and a non parole period of two years three months. That was a mistake, what I should have said was but for his plea guilty I would have imposed a total effective sentence of four years and a non parole period of two years and six months.
MS DOYLE: Right, two years, six months.
HIS HONOUR: Two years, six months.
MS DOYLE: Thank you Your Honour.
HIS HONOUR: So the order of the court will reflect that.
MS DOYLE: I undertake to advise the interested lawyers in that.
HIS HONOUR: Mr Hashmi's present in court, so he understands that that is the position as well, and I'll simply ensure that the order reflects that, if you could inform Mr Deftros.
MS DOYLE: As Your Honour pleases.
HIS HONOUR: Thank you, we'll adjourn sine die.
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