Director of Public Prosecutions v Kaddour

[2015] VCC 1413

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00245

DIRECTOR OF PUBLIC PROSECUTIONS

v

KHALED KADDOUR

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JUDGE:	JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2015
DATE OF SENTENCE:	6 October 2015
CASE MAY BE CITED AS:	DPP v Kaddour
MEDIUM NEUTRAL CITATION:	[2015] VCC 1413

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu	OPP
For the Accused	Ms E. Turnbull

HER HONOUR: 

1Khaled Kaddour, you have pleaded guilty to: one charge of trafficking in a drug of dependence, namely methylamphetamine; and one of possession of a firearm, being a prohibited person; and to one uplifted summary charge of possession of ammunition.

2I have already sentenced your co-offender, and the man who on the materials before me and on my findings was the principal or leader of the group, Fadi Haddara.  You were picked up as a result of an operation called Operation Skyborne, launched by the Santiago Taskforce into trafficking in methylamphetamine and firearms by what was described in the prosecution summary in both cases as an organised crime syndicate operating in the western suburbs of Melbourne.

3I am satisfied that you were indeed working with this organised crime syndicate, and were involved in the trafficking in drugs and firearms during the period of the investigation.

4

I am satisfied specifically that during the period of 5 December 2013 and

13 February 2014, you, by reason of the use of covert operatives and surveillance, were detected on eight separate occasions selling methylamphetamine to an undercover operative.  Six of those sales were made by you, and would appear for or on behalf of Fadi Haddara.  Two of them were made by you in company with another person who has pleaded guilty before me, but who is yet to be sentenced, Meeishyan Quach.

5The quantifiable sales of the methylamphetamine sold by you to the undercover operatives was 182.8 grams of methylamphetamine, varying in purity between 70 and 90 per cent, and sold for a total amount of $53,600.

6As with your co-accused Haddara, so with you, the quantifiable sales are of course detected by the sales to the undercovers and the subsequent testing.  They are, however, not the only means of measuring your participation in this drug trafficking business over the period of the charge of trafficking.

7I am satisfied that on the surveillance and other evidence identified in the prosecution summary, that you were actively involved in a continuing trade and business in the transmissions of drugs from source to consumer over that period.

8The eight specific transactions with the undercovers were on 5 December 2013, 2 January 2014, 7 January 2014, 5 January 2014, 23 January 2014, 7 February 2014 - two separate transactions on that day - and 14 February 2014.  The smallest amount trafficked by you was 3.5 grams, and that was only on one occasion, on the first sale to the undercover operative.  There were two sales of seven grams, one of three-and-a-half, and the others of either just 28 or just under 55 grams.

9It shows over that short period of times sales in significant quantities, and therefore puts you not at the street level end of the trafficking operation, but rather as a higher level and trusted operative.  It is clear that you were entrusted with money and to pass over drugs on behalf of Mr Haddara, and on two occasions at least, it is clear that you were sourcing drugs from other suppliers when Mr Haddara was not able to do so, and passing them on.

10Whether you were passing yourself off, big-noting yourself as more involved in the transactions and the general criminal milieu in which you were moving is hard to know, but at one stage you told a covert operative that you had previously sold a 45 calibre snub-nosed handgun and a nine millimetre handgun; that you had access to firearms including revolvers, an Uzi, and a machine gun; and said that you yourself owned a chrome-plated handgun.

11You spoke about, at one stage, having two kilos of methylamphetamine in your possession, and waiting for a delivery of another 30 kilograms.  Again, whether that is big-noting or truth is hard to tell, but it shows the way you were prepared to present yourself, and the circles in which you were moving.

12You also said that you had made a $30,000 profit from the sale of kilos.  Again, whether that is true or not, I am unable to make any finding.  Again, it is indicative of certainly the way you were presenting yourself and wanted to hold yourself out.

13Your offending in respect of the trafficking came to an end only because of your arrest, as a result of the police raids executed on 18 March 2014.  On arrest, you were found to be in possession of eleven separate mobile telephones, as well as 360 rounds of ammunition, and that gives rise to the summary charge of possession of ammunition.  The possession of eleven mobile phones again shows the nature and extent of your involvement in the trafficking operation.

14Charge 2, the charge of being a prohibited person in possession of a firearm relates to your involvement in the sale of a gun held out to be a Ruger handgun, but which in fact on examination turned out to be an air pistol, to the undercover operative.

15The surveillance evidence indicates that you took possession of a $10,000 payment for the gun from the undercover operative; that you collected the gun from the house of Fadi Haddara, where you were seen speaking to Fadi Haddara; and then returned to your house where you delivered the gun together with 64 rounds of ammunition to the undercover operative.

16You showed a familiarity with how to load and fire the firearm, and also held out that this would be a firearm that would be easy to on-sell.  That clearly may have had a level of exaggeration in it, given that anybody with some knowledge of firearms would have been able to detect it would appear that it was an air pistol, rather than a Ruger.

17In any event, it is that that gives rise to the charge of being a prohibited person in possession of a firearm.  The fact that you were in possession of it for the purpose of sale for a considerable amount of money, is an indicator of the seriousness of that offending.

18You have admitted some, although relatively few, and relatively minor previous convictions.  You have one previous conviction for possession of methylamphetamine from May of 2013, and in 2002 you were without conviction found guilty of trafficking and possession of cocaine and placed on a community correction order, which you fulfilled.  On the same occasion, you were dealt with for being in possession of money and other proceeds of crime, and you also have one conviction for driving while suspended.

19Whilst none of those offences are of the same gravity as those two to which you have pleaded guilty on the indictment here, they show that since 2002 you have been committing offences and have not, clearly, learnt from your earlier experiences.

20It is clear that trafficking in drugs is very serious offending, and being involved in the business of trafficking in drugs over an extended period of time and at a higher level in the hierarchy, is indeed serious.  And therefore, it is also clear that this sentence must reflect the gravity of that.  The denunciation of such behaviour must act as a deterrent to you and to others who think that they can involve themselves in this activity and make easy money from it.

21I was told that your trafficking was initially in order to support your own habit.  I am not sure whether that is so or not, and in any event, it makes little difference.  Whether you are assisting others in this pernicious drug trade to expand their business activities; whether you are trafficking in order to make money for yourself, or to make money in order to fund your own habit to get your own drugs more easily, is really not to the point.  Once you are selling to other people, you are taking an active part in a perpetuation of this pernicious trade with others, and you must understand that therefore selling to others to support what is said to be in your habit is, in my view, no mitigator at all.

22Following your arrest, you spent 44 days on remand before being released on bail.  It was your first time in custody.  Now at the age of 40, it was clearly a shock to you.  You were bailed and showed in the months following that you were not completely accepting of the gravity of the situation or the seriousness of your bail conditions, because you were ultimately rearrested for non-compliance with your bail; for breach of your curfew conditions, and breach of your reporting conditions.

23You spent some time again in custody, another 13 days, before being released again on bail, but since August of last year you have been fully compliant with the reporting and other conditions or your bail, and significantly during that period, you have not been charged with any further offending.  There is therefore merit in what Ms Turnbull said on your behalf, that you have a belief - at least it would appear - but nonetheless accepting the seriousness of court orders restricting your activities and your movements, and have shown a preparedness to comply with them.

24Although this matter went through a committal hearing, and you were committed for trial to this court, and the matter did not resolve until June of this year, you having been originally charged in March of 2014, I accept that you had before you were committed to this court, offered to plead guilty to the charges to which you have now pleaded guilty.  That is, trafficking, rather than trafficking in a commercial quantity.

25I therefore treat your pleas of guilty as pleas entered at the earliest reasonable opportunity.  And I accept that you are entitled to the considerable utilitarian benefit that flows from that.

26Insofar as the absence of any further offending indicates a preparedness to change your ways, I accept too that your pleas of guilty, and the absence of subsequent offending and compliance with your bail conditions after that time you were breached, indicates that you have taken steps to change the behaviours that you were engaging in at the time of the charges.  Insofar, therefore, as that is indicative of remorse, I accept that.  And therefore, your guilty plea has weight for that purpose as well.

27You are a man of, it would appear, at least average intelligence who, having arrived in Australia at the age of two had all of your schooling in this country; completed your VCE; and have at various times undertaken post-secondary education.  You have come within two subjects of completing a building and architecture course, and have what appears to have been a relatively full work history.

28It is therefore surprising that at the age of 40 you find yourself before a court, not impeded by a lack of intelligence; not impeded by any significant mental illness; not impeded by significant life pressures or disadvantage, engaging in conscious criminal activity of trafficking in drugs and dealing in firearms, and facing such serious charges.  Your intelligence and your capacity to work should have been, and continued to be, put to much better ends.

29You do not suffer from the disabilities that many of the people who come before this court, finding themselves facing serious charges, do.  However, it also means that you have got considerable capacity to turn your intelligence and your capacity to work to better ends.  And you have shown in the past, you have been able to do that, and I certainly impose a sentence that will encourage you to do that in the future.

30At the age of 41, you are back living at home with your parents, having had some periods living away in relationships, but ultimately it would appear, returning to the parental home.  You have support from your family, but it is a pity that the support you have had from your family did not deter you from offending during this period.  It is hoped that your respect for them, and the support and respect that they have shown you will act as a deterrent in the future from engaging in further criminal offending.

31The plea submissions were put on your behalf that the appropriate sentence was a combined sentence of a term of imprisonment, acknowledging that a term of imprisonment was the only appropriate one to reflect the gravity of particularly the trafficking, but also the firearm offence, followed by a community correction order.  I accept that a combination sentence is an appropriate one for you in the circumstances.

32I am not, however, persuaded that it is appropriate to confine the term of imprisonment to the time that you have already spent on remand.  In my view, that is far too short a period for the gravity of the trafficking, and for the gravity of the circumstances surrounding the possession of the firearm.

33I am also of the view that the sentence should be structured so that the punitive part of it is by and large served by the term of imprisonment, and the rehabilitative part of it is served by the community correction order.

34Having thought carefully about the evidence about your capacity to work, and the fact that you have been working again since charged; looked at and considered the testimonials from your current employers in respect of that; and having thought about the nature of the offending to which you have pleaded guilty, it seems to me that imposing a punitive element in a CCO by reason of unpaid community work is inappropriate.  I consider that it would be much better for you, once released from your term of imprisonment, to have the opportunity to go back into the gainful, paid employment that you have shown yourself able to do.

35You do not need to do unpaid community work in order to give you work skills or the discipline of going to work, as so many other offenders who come before the court do.  You should be old enough and mature enough to be able to engage in paid work yourself, and I would much rather see that being encouraged than putting you into an unpaid community work program.

36In my view, the purposes of a CCO for you should be confined to supervision, to participation in programs to reduce reoffending, and specifically to undergo assessment and treatment including testing for drug abuse or dependency.

37I am also going to include a condition for assessment and treatment including testing for alcohol abuse or dependency, because although there is no evidence before me that you are an abuser of alcohol, or even a significant user of alcohol, drug and alcohol abuse often go hand in hand, and it seems to me that it would be important to include that as a possibility.

38If, on assessment, it is not seen to be a problem, then you will not be directed to participate in any programs.  But if it does sit with or in substitution for drug abuse or dependency, then I would rather ensure that there were programs available to you under direction from Corrections to participate, to head off any potential for further offending related to substance abuse of any sort.

39I consider it important to impose the drug assessment and treatment condition because I have been told that although you had a significant drug habit at the time, you have, by abstinence, been able to remain drug free since.  That may or may not be the case; I have been given two clean urine screens covering two windows within the period whilst you have been on bail, but relapse into drug abuse is clearly a significant risk factor for your reoffending, and abstinence alone without support may not always be easy to maintain.

40Therefore, I consider, whilst I am not devaluing what I was told about your capacity to abstain, the requirement for assessment and treatment and participation in programs as directed in relation to drug abuse, seems to me to be important.

41I also consider supervision will be important, because Corrections can by that keep an eye on you, if you are tempted to associate with the wrong people or to lapse into criminal behaviour.  There will be ways that they can exercise guidance or control over you.  And hopefully that will keep you from any further offending.

42As I said in discussions with your counsel yesterday, I considered that you sat below Mr Haddara in role, and therefore that the sentence to be imposed upon you had to be below his, within a consistent framework with his, but reflecting your different roles.  And you clearly sit in role below him.  So the sentence I have imposed, both in relation to the term of imprisonment to be served, and in relation to the length of the community correction order, is less.

43And as Ms Turnbull acknowledged, there were much stronger rehabilitative conditions in the sentence imposed on Mr Haddara, given his particular personal circumstances, which do not apply to you.

44I accept that, as a person undergoing a term of imprisonment for the first time, imprisonment will be onerous for you.  And as a person who got to the age of 40 without having been sentenced to a term of imprisonment, that also makes imprisonment onerous, and I take that into account in fixing the term to be served by you.

45It is to be hoped that you will see this as a very serious blip in your life, and that you will after this put association with the wrong people and drug trafficking, whether to feed your own habit or to make money, or out of some misplaced loyalty to other people, well behind you, and that you will leave any dealings in firearms well alone.

46Could you now please stand.  Khaled Kaddour, on the two indictable charges to which you have pleaded guilty, you are convicted.

47On Charge 1, of trafficking in methylamphetamine, you are sentenced to be imprisoned for a period of 12 months, and then to be released upon a community correction order, I will announce the terms of that shortly.

48On Charge 2, of being a prohibited person in possession of a firearm, you are convicted and sentenced to be imprisoned for a period of 12 months, and I direct that three months of the sentence on that charge be served cumulatively upon the sentence on charge one.  That makes a total effective sentence of one year and three months' imprisonment.

49I do not in the circumstances consider it appropriate to fix a non-parole period.  I declare that you have spent 57 days in pre-sentence detention, and direct that that be counted and reckoned as part of the sentence already served.

50In addition, on each of Charges 1 and 2, you are ordered to serve a community correction order for a period of two years, commencing upon the completion of your term of imprisonment.

51The conditions of the CCO are these:  You must attend at the Werribee Community Correctional Service within two days of your release from imprisonment.  You must not commit another offence for which you could be imprisoned during the time the order is in force.  You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations.  That means you must not be impaired by drugs or alcohol when attending at Corrections for any supervision or other attendances.

52You must report to and receive visits from the Secretary or delegate.  You must report to the Community Corrections Centre within two clear working days of the order starting, and that is the Werribee Community Correctional Services at Synnot Street, Werribee.  You must not leave Victoria without first getting permission to do so from the Secretary or delegate.  You must let a Community Corrections officer know within two clear working days if you change your address or job.  And you must obey all lawful instructions from and directions of the Secretary or delegate.

53You must be under the supervision of a Community Corrections officer for the period of two years of the order.  You must undergo assessment and treatment including testing for drug abuse or dependency, and alcohol abuse or dependency as directed by the regional manager.  And you must participate in programs and or courses that address factors relating to the offending as directed by the regional manager.

54Do you understand the affect and conditions of the community corrections order?

55OFFENDER:  Yes, Your Honour.

56HER HONOUR:  And do you consent to it being made?

57OFFENDER:  Yes, Your Honour.

58HER HONOUR:  All right, I will have that handed down and ask for you to sign that in a moment.  So far as the uplifted summary charge of possession of cartridge ammunition, you are fined an amount of $750.

59I also make in respect of Charge 1 the pecuniary penalty order in the amount of $27,000, noting that that is consented to or not opposed, and make the forfeiture orders, and the disposal orders sought.

60I also make the order pursuant to s.464ZF of the Crimes Act.  That means that you must provide a forensic sample to the police.  That is to be by way of what is called a buccal swab or buccal sample, that requires you to rub something like a cotton bud on the inside of your mouth until a sufficient sample has been obtained.  I must warn you that if you do not cooperate in the provision of that buccal sample, then the police are authorised to use reasonable force to obtain that sample, and that means they may well use the more invasive means of obtaining a sample, namely the taking of a blood sample.  Do you understand that?

61OFFENDER:  Yes, Your Honour.

62HER HONOUR:  All right, thank you, I will have the CCO given to Ms Turnbull and ask her to go through it with you, and for you to sign it once you are satisfied of its conditions.  There is an automatic stay of one month on the fine, Ms Turnbull.

63MS TURNBULL:  Thank you, Your Honour.

64HER HONOUR:  Do you want to get instructions about a further stay, or will that be sufficient?

65MS TURNBULL:  No.  One month will be fine, thank you, Your Honour.

66HER HONOUR:  Thank you.  Mr Porceddu, have I been given a 464ZF order yet?

67MR PORCEDDU:  I thought you had, Your Honour.

68HER HONOUR:  I am told it is not here.

69MR PORCEDDU:  I apologise for that, Your Honour.  Let me just double check.

70HER HONOUR:  You can take a seat, Mr Kaddour, just while I sign and formalise those final orders.

71MR PORCEDDU:  Your Honour, I don't seem to have a copy here.  Would it be all right if my instructors send it through via email today?

72HER HONOUR:  Yes.  No problem with that, Ms Turnbull, and my signing of it in chambers later?

73MS TURNBULL:  No, Your Honour.

74HER HONOUR:  All right, thank you.  I have signed the CCO and what I will do is have a copy of that provided to you, Ms Turnbull.

75MS TURNBULL:  Thank you, Your Honour.

76HER HONOUR:  Do the orders that I pronounced reflect the orders I said I intended to?  Any further orders?

77MR PORCEDDU:  Yes, Your Honour.  I just had just two minor matters, Your Honour.

78HER HONOUR:  Yes?

79MR PORCEDDU:  Just in relation to the summary charges, Summary Charge 8, was that with conviction?

80HER HONOUR:  I'm sorry, yes, that was with conviction.

81MR PORCEDDU:  And I know Your Honour's going to come to it, but just a 6AAA.

82HER HONOUR: 6AAA, thank you. Yes, thank you. Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty, the sentence I would have imposed on Charges 1 and 2 would have been a total effective sentence of four years and six months' imprisonment, and I would have fixed a period of two years and six months as that to be served before being released on parole.

83MS TURNBULL:  As Your Honour pleases.

84MR PORCEDDU:  As Your Honour pleases.

85HER HONOUR:  Thank you.  Any further orders, Ms Turnbull?

86MS TURNBULL:  No, Your Honour.

87HER HONOUR:  Thank you.  Could you remove Mr Kaddour, please.

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