Director of Public Prosecutions v Ibrahim
[2021] VCC 676
•26 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 21-00349
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HANY IBRAHIM |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 May 2021 | |
DATE OF SENTENCE: | 26 May 2021 | |
CASE MAY BE CITED AS: | DPP v IBRAHIM | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 676 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL
Catchwords: Plea of guilty – one charge theft – one charge trafficking in a drug of dependence – fives charges possession of a drug of dependence – related summary offence of dealing with suspected proceeds of crime – long term drug addiction and substance abuse - circumstances of COVID-19 pandemic
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited: R v De Simoni (1981) 147 CLR 383
Sentence: 22 months imprisonment with a non-parole period of 2 years and 4 months and a 30 month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Singh | Office of Public Prosecutions |
| For the Accused | Mr M. Gumbleton (for Plea) Mr J. Barret (for Sentence) | Haines & Polites |
HER HONOUR:
Pleas of guilty and maximum penalties
1Hany Ibrahim, you have pleaded guilty to one charge of theft, one charge of trafficking a drug of dependence (methylamphetamine), one charge of possessing a drug of dependence (cocaine), one charge of possessing a drug of dependence (ketamine), one charge of possessing a drug of dependence (MDMA), one charge of possessing a drug of dependence (nitrazepam), and one charge of possessing a drug dependence (1,4 butanediol).
2You have also pleaded guilty to the summary offence of dealing with property suspected of being the proceeds of crime: that being cash to the value of $22,861.40.
3
The theft charge carries a maximum penalty of 10 years imprisonment; the trafficking charge carries a maximum penalty of 15 years imprisonment. The possession charges carry a maximum penalty of five years or 400 penalty units, unless the court is satisfied on the balance of probabilities that the offence was not committed by you for any purpose related to trafficking in that drug of dependence - in which case the maximum penalty would be one year imprisonment and/or
30 penalty units.
4On the plea, your counsel conceded that the Court ought not be satisfied on the balance probabilities that the possession of the substances the subject of Charges 3-7 were not related to trafficking; oddly, Mr Singh, for the prosecution made the reverse submission (contrary to that in the Opening) and did not press for the application of the higher maximum penalty.
5Ultimately, I am not persuaded on the balance of probabilities that those offences were not committed for a purpose related to trafficking. The higher maximum penalty will be applied, but I take into account the small quantities.
6The facts were set out in the Summary of Prosecution Opening; that document became Exhibit A on the Plea; I will not refer to each fact here – that document is attached to and forms part of these reasons. I will summarise parts of it here.
7Essentially, the agreed facts unfolded this way. On 14 January 2020, a person using ID in the name of ‘Toby SULLIVAN’ hired a 2019 Mercedes Benz registration 1QG 3ET. It was not returned on the arranged date of 28 January 2020; it was reported as stolen on 28 February 2020.
8Sometime, elsewhere, between 4 March 2020 and 6 March 2020, number plates ‘AZB 022’ were stolen from a white 2019 Mercedes Benz.
9At about 12.25 am on 20 March 2020 Police were in the carpark at the Hallam Hotel on the Princes Highway. Their number plate recognition software recognised the car with plates ‘AZB 022’ as being stolen. They checked the vehicle identification number and worked out that the car was in fact the stolen car registered as 1QG 3ET; the hire car.
10At about 12.40 am more Police arrived at the Hallam Hotel; two of them approached you and your co-accused, Ms Bietresato; they asked you for ID. During the exchange that followed they noticed a Mercedes key, along with a plastic plunger, in your pocket.
11During what happened next the Mercedes key fell to the ground, one of the Police used the remote and the car suspected of being stolen unlocked.
12You were arrested for the theft of the stolen car.
13You were searched, you had $600 cash on you.
14Police searched the car. The legality of that search was at one stage under challenge but in any event the following items were found in it:
· a rental document relating to renting a hotel room at Narre Warren Quest apartments in the name of Ibrahim;
· a satchel style bag containing a large amount of cash and a number of zip lock bags (the contents of these were later analysed); and
· the cash (later counted at $22,861.40) - that cash gives rise to the related summary charge dealing with property suspected of being proceeds of crime;
· they also found registration plates AZB 022[1];
[1]Although the Opening states these plates were ‘AZB002’ - I have assumed this is a typographical error and that what is meant is that the plates were linked to the other vehicle referred to as ‘AZB022’.
15The exhibits were taken back to the Narre Warren Police Station for processing. The bag contained a number of car keys, documentation and, relevantly, various substances, which were later analysed and found to be:
· a total of 236.8 gram mix of methylamphetamine with a purity of 83%- 189.44 grams pure substance. This give rise to Charge 2: trafficking methylamphetamine;
· 2.4 grams of cocaine; that gives rise to Charge 3;
· 4.1 grams of ketamine; that is Charge 4;
· 2.1 grams mix of 3,4 methylenedioxy-N-methylamphetamine (MDMA); that gives rise to Charge 5;
· 14 white tablets which amounted to 7.9 grams of nitrazepam; that gives rise to Charge 6;
· 39.4 grams of 1,4-Butanediol; which gives rise to Charge 7.
Record of interview
16At 6.10 am the same day you participated in a record of interview. You denied hiring the car and said you had had borrowed it from a friend ‘Shane’ about a week and a half earlier. You said you had a fair idea it was stolen because of the missing badges. You claimed to have been assaulted by Police. You said you had won $600 at the hotel that night. You also said you used 1,4 Butanediol every day. You did not give direct answers to questions about the contents of the satchel found in the car.
Co-accused
17Ms Bietresato, your co-accused, pleaded guilty to three charges of possessing a drug of dependence. Her charges are different to yours; they related to items found in her handbag and in her bedroom during the execution of a search warrant after the arrest at the Hallam Hotel. Ultimately, she was sentenced in the Melbourne Magistrates’ Court;[2] no parity arguments were advanced on your plea.
[2]Ms Bietresato was sentence to 277 days imprisonment and a 12-month Community Corrections Order.
Procedural Chronology
18
Your offending occurred, and you are charged in relation to a single date,
20 March 2020. Originally, you were charged with 30 charges including two charges of trafficking in drugs of dependence in not less than a commercial quantity. Three bail applications were listed during May 2020, but only the final one proceeded to full hearing. Bail was refused. On 25 November 2020 a committal was conducted, and you were committed to stand trial, however, on 18 March 2021 you made an offer to plead guilty and after negotiations on 30 March 2021 your matter resolved to these pleas of guilty.
19I note that a summary jurisdiction application was abandoned when the case was listed for Plea in this Court expeditiously.
Nature and Gravity of the offending
20The amount of methylamphetamine was well over the commercial quantity of 50g; but the settlement was on the basis that the Prosecution did not seek to embark upon the task of proving your intent to traffic not less than a commercial quantity. You are charged with and pleaded guilty to trafficking simpliciter in that substance, and I will sentence you accordingly. Your counsel argued that although the quantum (236.8 grams mixed, 189.44 grams pure) was not in dispute, and such quantity was well over the commercial quantity threshold. I am conscious though the Court ought not use the commercial quantity to elevate the gravity of the offending in circumstances where that element of the charge (being intention to traffic in a commercial quantity) has been withdrawn. I will not reason on the basis of the quantity to aggravate to a higher charge in the De Simoni sense. The Prosecution are unable to prove knowledge of your intention to traffic in that quantity.
21You trafficked methamphetamine; you knew you were in possession of that substance, and all that can be said is, as your counsel said on the Plea, this was ‘a large amount’ of the drug. The surrounding circumstances (packaging, cash) puts it into context. That said, you are charged for a single date. There is no other evidence of the reach of your activities.
22The theft of the car must be understood as your having assumed the rights of the owner in the knowledge of the car being stolen. There is no evidence linking you to the original theft from the car hire.
23The quantities of the substances in Charges 3 - 7 are small. The amount of cash the subject of the summary charge is relatively significant.
Personal circumstances
24You are now 39. Your family migrated to Australia from Egypt when you were 2 months old in 1982. You have a brother who suffers from mental health issues and drug addiction. You completed Year 12 and tertiary education at Chisholm TAFE; your area of study was IT and multimedia. You obtained two certificate IVs in those subjects. You remained at home into your adulthood and worked for 10 years as a delivery driver.
25Your criminal history starts in 2002 and reflects your struggle with drug use, which started while you were studying at TAFE and escalated in 2006 after your mother passed away from breast cancer. After this time your life unravelled and you have struggled with your addictions ever since. You have been a self-employed driver, worked with the NBN as a subcontractor, and as a heating and cooling installer.
26You have a long-standing multi-substance drug addiction: this underpins your past and current offending. It seems clear that your future prospects are primarily related to your ability to grapple with your habits. You seem to accept that this would be a long-term project. It has been 14 years since you’ve had a rehabilitative disposition – in 2006.
27You have no mental health diagnosis. Your use of illicit substances may be obscuring underlying problems, but it would be speculative to assume so.
Applicable sentencing principles
28Your history indicates specific deterrence is an issue for you and for this sentence. Your counsel submitted that when you are under court supervision in whatever form you tend to do well. You have had sentences with parole periods before. You have not had a Community Corrections Order since 2006.
29General deterrence is a primary consideration in sentencing in such cases; the authorities clearly state that the harm caused by trafficking in drugs of dependence warrants sentences that will have the effect of deterring others who seek to do the same. Moreover, your history indicates you have not been specifically deterred by the sentences imposed on you in the past, or at least not sufficiently deterred.
30You will be punished for the offending; I will consider your prospects of rehabilitation later in these reasons. I suspect that the protection of the community will be best served by your sustained attention to your drug habit.
Matters in mitigation
31I have considered the value of your Plea. You conducted a committal hearing focused on the lawfulness of the search of the car. After those matters were ventilated the matter resolved to the current Indictment. On the Plea, Mr Singh submitted that the Crown accepts that the argument to exclude the evidence of the drug search, ‘would have been a real argument’. You have given up the opportunity to have that argument fully tested and perhaps secure your acquittal. Instead of doing that you have accepted responsibility and pleaded guilty. There is a particular value in that.
32Your plea indicates acceptance of your wrongdoing and an aspect of remorse inheres in it.
33In the context of the current backlog of cases, your plea has significant utilitarian value. Your trial does not sit among the very long list awaiting hearing. This will be recognised in your sentence.
34You have been in custody for these charges since your arrest on 20 March 2020 and you are still in custody.
35This period has coincided with what is hoped to have been the worst of the pandemic in Victoria. I accept that there was much anxiety abroad during your incarceration about whether the virus would enter the prison system and, if it did, what havoc it would wreak there. You have been very isolated. You have not received a single in-person visit during this period, nor have you communicated by video with loved ones. You have had some limited contact with friends by phone. These circumstances have persisted for well over a year. Your access to rehabilitative courses has been curtailed, though I note that you completed two certificates in rehab programs in custody in January this year.
36As I write this the Victorian Health authorities are re-introducing restrictions to meet an outbreak in Melbourne’s northern suburbs. The anxieties and uncertainty of this time persist. You will be serving your sentence in that climate and I take that into account.
37Moreover, in these circumstances, while you were in custody, your father passed away from COVID-19 while in Egypt, the country of his birth. You have been unable to have any satisfactory contact with people who cared for him and arranged for his funeral.
38Your brother’s health is poor and the family home, you understand, is now in disrepair. You are unable to do anything about either of those things from custody. The cumulative effect of this is that your imprisonment has been particularly burdensome.
Prospects of rehabilitation
39I have had regard to your criminal history, Exhibit B on the plea. I have had regard to all of it, of particular note you have been sentenced to immediate terms of imprisonment 4 times between 2010 and 2015. You have two prior convictions for trafficking simpliciter. On its face, your history indicates long-term drug addiction and substance abuse.
40It would be easy to conclude that your prospects for rehabilitation are grim on the basis of your past, however, I am not prepared to conclude that there is no chance that you will be able to grapple with your problems as you mature. The cost of being detected will continue to rise until you do so. You are now 39 years old, you were 37 at the time of your offending.
41On the positive side, you do have a decent work history and the ability to create a structure to support yourself by legal means. This goes in favour of your future prospects.
42Your counsel submitted that the most appropriate structure for your rehabilitation would be a lengthy CCO. The Prosecutor submitted that a head sentence with a minimum non-parole period was warranted. This latter submission suggested that it would necessarily be longer than the one urged by your counsel, but I am not sure if that is true. You are now nearly 40.
43In the discussion of the appropriate structure for your sentence, I was reminded of s 11 of the Sentencing Act 1991 and how its provisions might interact with an order for a ‘combination’ sentence with more time to serve. I am aware of it – the sentence I will impose is not curtailed by any considerations of trying to avoid the necessity to impose a non-parole period. The gaol sentence I will impose is that which I consider appropriate in the circumstances.
44I note that the Prosecutor did not challenge the proposition that the possession offences might be dealt with by way of financial penalty.
45This sentence will afford you an opportunity to confront your drug habits and will therefore be lenient in the context of other sentences in its category. It represents an opportunity. It is up to you what you do with it.
Regard to current sentencing practices
46I have had regard to a range of sentences for similar offending; no case is quite like yours, but I have had regard to that range and sentence you in that general landscape.
Disposition
47Mr Ibrahim, now is the time where I am going to read out my actual sentence and I will tell you what it means at the end. On Charge 1: theft, you are convicted and sentenced to 6 months' imprisonment.
48On Charge 2: trafficking methyl amphetamine, you are convicted and sentenced to 18 months imprisonment and a Community Corrections Order of 30 months;
49On Charges 3: possess cocaine, 4: possess ketamine, 5: possess MDMA; 6: possess nitrazepam and 7: possess 1,4 Butanediol, you are convicted and fined and aggregate fine of $1500.
50On the related summary offence of dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 5 months imprisonment.
51I direct that one month of the sentence on Charge 1 and 3 months on the related summary offence are to be served cumulatively upon each other and upon the sentence on Charge 2, so making a total effective sentence of 22 months imprisonment and a Community Corrections Order of 30 months.
52Pursuant to s 6AAA Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of four years, with a non-parole period of two years and four months.
53Pursuant to s 18(4) Sentencing Act 1991 (Vic), I declare that you have served 432 days of the sentence I have passed upon you and I direct that this be entered into the records of the court.
Community Corrections Order
54You will be first subject to the standard conditions of a Community Corrections Order. That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 30 month period. Let me be clear about this: if you do, you will be brought back to court before me and resentenced for this offence; absent powerful reasons, you should expect that would involve your imprisonment.
55You must report to the Dandenong Community Corrections Service within two days of your release.
56You are required to advise your supervisor in the Corrections Office of any change of address where you are living or working, and you must do so within two clear working days.
57It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections Officer. You are not able to leave the State of Victoria without their prior permission.
Special conditions
58Special conditions that I will attach to the order are as follows:
· unpaid community work to the level of 100 hours;
· assessment and treatment, including testing, for drug abuse and dependency;
· you will be required to complete programs to further address your drug use; and
· you must report for supervision with your case manager as directed.
59I require you to perform 100 hours of unpaid community work over the term of this order, but pursuant to s.48CA of the Sentencing Act I direct that time spent in treatment and rehabilitation programs be credited towards those hours.
60I also require you to participate in judicial monitoring. That means you have to come back to Court 2 months after the commencement of your Community Corrections Order or thereabouts.
Forfeiture and disposal orders
61I make the orders for forfeiture and disposal as sought.
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