Director of Public Prosecutions v Kanati
[2022] VCC 903
•10 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-19-01599
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARBEL KANATI |
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JUDGE: | HIS HONOUR JUDGE M.P BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 10 June 2022 | |
CASE MAY BE CITED AS: | DPP v Kanati | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 903 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Saunders with Ms C. Nicholson | |
| For the Accused | Mr D. Sheales |
HIS HONOUR:
1 Charbel Kanata, you are to be sentenced for one charge of possession of the drug of dependence, cocaine.
2 The applicable maximum sentence in the circumstance of your case is five years’ imprisonment. You have not sought to rebut the effect of s73(1)(b) and (c) of the Drugs Poisons and Controlled Substances Act; that is, to persuade me on the probabilities that your possession was not for any purpose related to trafficking.
3 You pleaded guilty before me on 8 June. You were arrested on 11 May 2017; but primarily for the offending which led to your trial for attempted possession of unlawfully imported cocaine, a different parcel or consignment of the drug. Your trial ended on 7 June, with your acquittal.
4 At your plea hearing, also on 8 June, Mr Saunders for the Crown tendered a written Crown opening for plea. Mr Sheales made a plea on your behalf.
5 The circumstances can be briefly stated. On 11 May 2017, a search warrant was executed at your home at Shaftsbury Street, Coburg by investigators of the drug importation. They found two parcels of mixed cocaine in your bedroom, held in snap lock bags, one of 2.2 grams and the other 23.4 grams. of the total 25.6 grams, close to an ounce, 18.6 grams were pure. That is said to have a street value of up to $14,720.
6
You are a 36 year old man of Lebanese background. Your parents have been in Australia for a number of decades. You were born here. You are a
Maronite Christian and went to Catholic primary and secondary schools in north-west Melbourne. You completed Year 12 and did just over three years of a building and engineering degree at Victoria University.
7 That was interrupted when you took your mother, who was suffering depression, back to Lebanon for a period. You did not return to the course. You have not worked consistently since, although, you have assisted your parents in their Reservoir pizza shop. At the time of arrest, in May 2017, you stated that you were suffering and taking medication for depression. Since arrest, you have worked part-time at a motor vehicle panel shop and now administratively at a warehouse in a cosmetics or toiletries business. You no longer need antidepressant medication.
8 Your criminal record states, essentially, four court appearances between February 2013 and April 2019. There are driving offences, property damage and a 2013 sentence, without conviction, for recklessly causing injury. There are two pending matters, charges of assault police and for handling. You seem to be contesting them.
9 There has been a delay of over five years since arrest. The trial proceeding, including that a first trial led to a hung jury, in the context of the COVID-19 pandemic and its impact upon the justice system largely accounts for this. Your decision to plead not guilty to the very serious importation matter was your entitlement and ultimately, justified by acquittal. Delay becomes an important sentencing consideration.
10 It is put on your behalf that I should impose a community corrections order. It is not submitted that therapeutic conditions are necessary or should be imposed. The Crown submit that such a community corrections order is within range.
11 Taking into account relevant sentencing considerations, which include your moral culpability, deterrence, condemnation of the offending and proportionate punishment of it, I find that such a sentence is the correct one.
12 Given the amount and value of the drug you possessed, your criminal record and that I am not satisfied that the possession was not related to trafficking under s73(1)(b) and (c), the requisite punishment is an order of significant duration and should carry a considerable period of community work. There should be supervision of you. You are found suitable for such an order.
13 Before I formally sentence I should have raised with counsel whether or not they have received the report.
14 MR SHEALES: We have.
15 MR SAUNDERS: Yes, Your Honour, nothing to say.
16 HIS HONOUR: I think the reporter, as to the need for supervision, may not have been fully apprised of the broad circumstances attached to this. Your client seemed to be innocent of knowingly being in possession of the importation but it at least suggests indirect criminal contact, innocent, of course. But it leads me to think that supervision is a necessary condition here.
17 So, having considered and weighed what I see to be the relevant matters, I sentence – perhaps I should have asked whether people want to put anything about that part.
18 MR SHEALES: No, Your Honour. Your Honour made your views clear on the plea and I saw what the report said. I don’t seek – it’s a matter for Your Honour.
19 HIS HONOUR: Good. Thank you. I return to my sentencing reasons. Having considered and weighed what I see to be the relevant matters, I sentence you as follows. Stand up.
20 On one charge of possessing a drug of dependence you are convicted and I imposed a community corrections order of two years’ duration. The usual terms apply. I set the additional conditions of supervision and unpaid community work of 350 hours.
21 Had you not pleaded guilty, I would have imposed a sentence of four months’ imprisonment to be followed by a community corrections order of suitable but lesser duration.
22 Are there any other orders that are sought?
23 MR SHEALES: Just a disposal order in respect of the subject.
24 HIS HONOUR: All right. Have we got that? It will be (indistinct) and I will sign that in chambers. Yes. Thank you. The disposal order is in respect of the - - -
25 MR SHEALES: Of the substance.
26 HIS HONOUR: Of this substance?
27 MR SHEALES: Yes.
28 HIS HONOUR: All right. Come out of the dock and stand near Mr Sheales. Yes. Now, I need to put this order to you formally. I will read it to you now
29
The community corrections order will run for two years and therefore, end on
9 June 2024. The usual terms of these, that you must not commit another offence for which you could be imprisoned. You must comply with a regulation prohibiting attendance at any worksite or appointment affected by alcohol or drugs or in possession of illegal drugs. You must report to and receive visits from Community Corrections. You must report to the relevant
Community Corrections Centre. The address is listed here. It is the
Melbourne Office. Is that right? He lives in Coburg.
30 MR KANATI: Your Honour, I asked – I requested that I be in the city and away from the northern suburbs.
31 HIS HONOUR: All right and they have agreed with that, have they?
32 MR KANATI: Yes. They have.
33 MR SHEALES: Yes, Your Honour.
34 HIS HONOUR: Yes it is on the order. All right. So, it is the Melbourne Office. The address is on the document you will get. The additional conditions are that you perform unpaid community work, 350 hours of that over the two years and that you be under supervision. Do you understand that?
35 MR KANATI: Yes, Your Honour.
36 HIS HONOUR: And you agree to it?
37 MR KANATI: Yes, Your Honour.
38 HIS HONOUR: Well, I will get you to sign it and then I will sign it. I will sign it now and then copies can be given to the relevant people. All right. Nothing else that I need to do?
39 MR SHEALES: No. Thank you, Your Honour.
40 HIS HONOUR: Thank you for your assistance during the proceedings, all three of you and you are excused now and I will wait for the next case.
41 MR SAUNDERS: Thank you.
42 MR KANATI: Ta, thank you.
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