Director of Public Prosecutions v Khodher
[2013] VCC 1072
•25 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00354
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AIDEN KHODHER |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 25 July 2013 | |
CASE MAY BE CITED AS: | DPP v Khodher | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1072 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Albert | |
| For the Accused | Mr N. Howard |
HER HONOUR:
1 Between 3 November 2010 and 30 August 2011 you Aiden Khoder trafficked in MDA. You did so in a variety of ways, all designed to distance yourself from your true activity.
2 You used others to make repeated purchases of precursor chemicals on your behalf. You provided them with the funds to make the payments. They took delivery of the chemicals and provided them to you on request or directed that they be delivered, addressed to false names provided by you to addresses provided by you, some of those addresses in turn you had used or asked others provide you with for that purpose of receiving some of the chemicals and other items. Some items were ordered from Australia, while others were purchased from overseas online. You also directed your co-accused Wisam Dinah to purchase as well as chemicals and other items, a book called Total Synthesis II which provide advice on how to manufacture drugs
3 You took some of the precursor chemicals that you purchased by you, or on your behalf, to the homes of people you knew and stored them, you had them stored in the shed at the back of Mr Dinah's house, and you had some of them stored in the garage at the house of your other co-accused Mr Panwar. As the evidence before me revealed some of those chemicals were unstable and you took no precautions to ensure that they were safely stored or that instructions were given as to their safe storage so they did not pose a risk to the people who you foisted them onto.
4 You purchased other precursor chemicals yourself, although concealing your identity by using the name and address of a family business.
5 You used yet another person to rent a post office box in her own name for the purpose of taking delivery of precursor chemicals and equipment that others had ordered on your behalf for the manufacture of MDA. Evidence revealed 13 deliveries were made to that box office box addressed to a John Carboni. Other evidence reveals that that is a false name used by you to facilitate the ordering and delivering of chemicals, laboratory equipment, material to bind substances into tablets, tablet press punches and die sets, and an instructional DVD on the use of the tablet press.
6 Yet another person was used by you to take delivery at her home addresses of other equipment purchased by you online to be used in the manufacture of MDA.
7 You rented a room from Mr Panwar who is an employee in your family business. He and his wife rented a house, and they had a spare bedroom which they rented out to other people. When the bedroom became free you rented it. After you had rented the room, you told Mr Panwar that you wanted to use the garage for storage. In fact you set up a laboratory there for the manufacture of MDA. Not long after the laboratory had been set up, and when it would appear manufacture was actually underway you were advised that a workman who had been called to fix a broken toilet in the premises had inadvertently come across the laboratory in the garage, as a result you dismantled it, enlisting Mr Panwar's help to move everything out.
8 Yet another person you knew was used by you to pose as your girlfriend in order for you to rent a house, making it out as if the two of you were a couple moving into the house together. You paid six months rent in advance for that. You did not move into it, nor did the young woman, rather you established another clandestine laboratory in that house.
9 The evidence does not reveal the amount of MDA you actually manufactured. The evidence before me reveals one completed transaction were you sold 200 tablets for $3000 to a person by the name of Smith. You were under surveillance at the time, he was later intercepted or arrested and the tablets were in his possession. The marking on the tablets was able to be traced back to a dye in the tablet press that you had used.
10 This was brought to an end by the police executing search warrants at a number of premises on 30 August 2011.
11 At the time of the execution of the warrants large quantities of the precursor chemicals were found. At Mr Dinah's family home in the shed 25 kg of ammonium acetate, 25 kg of ammonium chloride and 5 containers containing a total of 35 L of sulphuric acid, was found. At the rented house in Bloomfield Avenue, Maribyrnong where you had set up the second clandestine laboratory a further 10 L of sulphuric acid and 19.6 kg of ammonium acetate was found. So was a large quantity, 20.4 kg of saffrole derived from sassafras oil found there. The search warrant at your home revealed amongst other things a tablet press with your fingerprints on it, the instructional DVD on its use, liquid containing ecstasy and MDP 2p, again a derivative substance produced in the in the process of manufacture of MDA. Punch and die sets were also found, and one of those matched the logo that was found on the $3000 worth of tablets that you sold and to which I have already referred.
12 You were actually at your clandestine laboratory in Maribyrnong at the time of the execution of the search warrants, and further analysis and scrutiny of the chemicals found there revealed that all of the chemicals required to produce ecstasy using sassafras oil except for one chemical, palladium chloride, were present at that clandestine laboratory.
13 Although no palladium chloride was on the premises at the tie of the execution of the warrants, other evidence revealed that during the period covered by the charge you had ordered palladium chloride using a false name, John Carboni, and it was delivered to the post office box lease in the name of one of your friends that I have already referred to.
14 At the laboratory the textbook Total Synthesis II which had been ordered by Mr Dinah on your behalf, and handwritten notes detailing a process for the production of ecstasy from sassafras oil were also found.
15 An assessment was made of the amount of ecstasy that could have been produced from the chemicals that were found on the day of the police searches. That in itself gives some indicator of the potential for production. If all other chemicals needed for the process were also available the saffrole that was found would have been capable of producing between 3.6 and 3.8 kg of ecstasy. The amount of MDP 2p that was found would have yielded 81 g. The ammonium acetate that was present could have yielded 2.5 kg of ecstasy, and the sodium cyan borohydride could have produced 5.04 kg of ecstasy.
16 It would appear that at the time of the execution of the warrants you were actively engaged in the manufacture of ecstasy when the police came across you in the laboratory.
17 You have pleaded guilty to this charge of trafficking in MDA by these various means which I have detailed, in addition you have pleaded guilty to 3 charges of possession of precursor chemicals used for the manufacture of MDA, that is sassafras oil, saffrole and sodium cyan borohydride and 1 of possession of a drug of dependence that is in fact used or derived in the process of manufacturing MDA, namely MDP 2p.
18 You have also pleaded guilty to possession of a tablet press associated with the manufacture of the ecstasy.
19 All these items were found on the day that the police executed the search warrants, 30 August 2011, and they are obviously derivative or ancillary offence separate, but directly related to and connected with the process of the manufacture of MDA. Therefore as you will see when I formally pronounce sentence on you, although I sentence you individually for each of those additional facilitative offences, the sentence for all of those facilitative offences will be served concurrently with the sentence in respect of the manufacture, the MDA, the trafficking charge.
20 You have also pleaded guilty to one charge of trafficking in cannabis. The evidence reveals, when I say the evidence the agreed summary, reveals that between 22 July and 18 August you made 4 separate 1 pound purchases of cannabis. Your brother Andy arranged the supply of the cannabis to you. You paid between $2,500 and $2,600 for each pound, that is a total of $10,150 for the four pounds.
21 You persuaded yet another person, another employee of yours to provide you with his bank details and you used his bank account to receive a total of $6,850 in 4 separate payments of between $1,000 and $2,450 over a 5 week period. That starts just before the time when you purchased the first pound of cannabis, and the day on which you purchased the last pound of cannabis. The payments were all made by the same person, a man from Shepparton to whom apparently you were apparently supplying cannabis. The cash that was paid into your employee’s bank account was immediately withdrawn by him and paid to you straight after it had been paid into or laundered through his account. You were under surveillance, and on 18 July the last date on which a payment was made or a purchase was made by you of cannabis and an on sale was made by you to the Shepparton man. You were observed meeting that man at a service station in Tallarook, and items were seen to be exchanged between the two of you.
22 He was arrested not long afterwards, and found to be in possession of 429.3 g of cannabis, that is just a little under 448 g, or 1 pound.
23 The evidence does not reveal whether you supplied him with all of the cannabis that is referred to in the summary and that you sourced through your brother, or only some of it.
24 Also found during the execution of the search warrants was an anabolic steroid stanozolol. It appears this was a steroid that you were using for personal use namely to provide an artificial assistance to enhance bodybuilding. As a result you have pleaded guilty to a further charge of possession of a drug of dependence, that steroid, and this one it is clearly a personal use charge by contrast to the others.
25 Finally police found a can of pepper spray called defender at the clandestine laboratory on the day of the execution of the warrants. Pepper spray is a prohibited weapon and you have pleaded guilty to one uplifted summary charge in respect of that
26 This clearly presents serious and comprehensive criminal activity carried out over a considerable period of time. You took active and concerted steps to conceal your involvement in your activity. You used people you knew, friends and employees from your family business to assist you by providing their identities, and their addresses for purposes associated with the purchase of the chemicals, laboratory equipment you needed, and other equipment you needed, such as pill presses, dies and textbooks, and for the establishment of your clandestine laboratory. You stored unsafe and unstable chemicals close to where other people who you had enlisted for this purpose lived.
27 On the material before me I am satisfied that you exploited and manipulated friendships and your employer employee relationships in order to use these people to facilitate your criminal aims. Some of them may well have been aware of what you were doing. That does not excuse you, nor does it mitigate the seriousness of your abuse of the relationships, and the influence, whether by friendship, force of personality, or by power imbalance that you were able to exert over them.
28 It is clear therefore that considerations of denunciation and deterrence are significant sentencing considerations.
29 You come before the court as a 24-year-old with no relevant criminal history. You have only one previous court appearance for careless driving. Clearly not relevant for these purpose. You come from a good hard-working immigrant family. You were only two when your parents arrived here from Iraq in the wake of the Iraq Iran war. You have had the benefit of a stable family life in Australia, and in the material before me it is clear that your parents worked hard to provide you and your siblings with a good private school education, and a good moral family upbringing. You are an intelligent man. You completed your secondary schooling without difficulty and you began a university course in biotechnology and chemistry at Victoria University. It is a great pity that with that intelligence you used your knowledge that you were gleaning in the course of your studies to assist you in achieving your criminal aims. Clearly by the activity that I have recounted you have got the energy, the intelligence, the business acumen, and the scientific knowledge to put it to good purpose rather than to criminal activity.
30 Your co-accused Mr Dinah is the son of your father’s closest friend. The two families came to Australia together. Mr Dinah is a couple of years younger than you and he is one of those who in my view you exploited and manipulated to assist you in your offending. It should be a matter of great shame to you that you have not only disappointed your family’s expectations in you, but that you have involved Mr Dinah in your offending and caused such problems, or the potential for such problems in a close longstanding family friendship.
31 Although I am told you reproach yourself for what you have put your family through it is as I said in the course of the plea difficult to understand how it did not occur to you before your arrest that your activities would shock and shame your family. I am also told that it is your view that you did not coerce or manipulate anybody into assisting you in your activities and that you were open at all times about what you were up to. That does not sit comfortably with the assertion on the plea that you accept full responsibility for enticing others into your venture. In my view it demonstrates that you have limited insight into your criminality and your remorse is limited to what arises from the belated realisation of the effect on your immediate family. You seem yet to face the acceptance of responsibility for your involvement of others.
32 The explanations you advance of your involvement reflect little credit on you. I was told you had been what is euphemistically called a recreational user of ecstasy, and following the break-up of your first serious relationship in 2009 that your use of ecstasy increased and it was then too that you began to use steroids as well to enhance your bodybuilding activities. It appears that although you had done well at university in 2008 a combination of the break-up of the relationship in 2009, the amount of time that you were required to spend in working in the family business, and no doubt your increased ecstasy and probably steroid use as well led to you dropping out of university. You built up a sense of resentment about the demands that were placed on you to assist in the operation of the family business and contribution to the family welfare and wellbeing, or family economic situation.
33 It was in that context that I was told you became unhappy at what you considered to be the poor quality of ecstasy you had purchased and had decided to make some yourself. Given the quantities of chemicals and other items that your purchased it seems unlikely that this was a venture solely to provide ecstasy for your own use. It has all the hallmarks from the outset of a commercial venture. In my view the evidence before me indicates nothing more and nothing less than a calculated decision to made by you to embark upon a business of the manufacturing of ecstasy and the business, hopefully a profit making business of then on selling most of what you had made. You were clearly prepared to invest considerable amounts of money in it, and one of the dispiriting features that came out, although subliminally in the course of the summary, was the fact that you were milking money from the family business in order to pay for the purchases of the chemicals and the other items. It is a very poor return to your parents for the sacrifices that they had made to give you a good upbringing and a good education, and to flee their war torn country and to make a new start and hopefully give their children a better life here than they thought they would be able to give them if they had stayed in their home country. It is something you should reflect long and hard about.
34 After your arrest you were remanded in custody where you remained for 24 days before you were released on bail and admitted into the Cisp bail program
35 As part of those bail conditions you were referred to a psychologist. You had one session with Mr Healey and then were referred on to Dr Janev. After your successful discharge from Cisp bail you continued counselling with Dr Janev. She has provided a report that covers the whole of the period that she has counselled you. You reported to her and to Mr Healey that following the break-up in 2009 of your relationship with your girlfriend that you had become depressed, that you had felt suicidal, and that you had remained in that state for a considerable time until your friends persuaded you to start going out to night clubs again, and that is when you increased your use of ecstasy.
36 It is in my view difficult on that scant self report to accept Dr Janev's diagnosis of major depressive disorder with suicidal ideation. Certainly a feeling of despondency after the break up of the relationship, and an increase in your ecstasy use I accept, but the material before me does not in my view - that is the factual material before me does not in my view provide sufficient support for Dr Janev's diagnosis of a major depressive disorder.
37 Dr Janev indicated the personality testing revealed histrionic personality traits. She was not diagnosing you with a personality disorder, but simply elevated - a clinical elevation on the histrionic personality disorder scale. She notes that those with a histrionic personality are often characterised by an insatiable if not indiscriminate search for stimulation and affection from others.
38 She said that clever and often artful social behaviours give the appearance of inner confidence and independent self-assurance, but underneath this guise can be a fear of genuine autonomy and need for repeated signs of acceptance and approval. People with a histrionic personality disorder proceed to constantly replenish tribute and affection in every interpersonal source and every social context. She says the histrionic individual can often be set apart from others by their tendency to be facile and enterprising in their manipulation of events, through which they maximise the attention and favours they receive and avoid the indifference and approval of others. It is clear that she has not diagnosed you with that personality disorder, but you have some of the traits which would tend along that scale.
39 Even had I accepted Dr Janev's diagnosis on the factual material that is before me of a major depressive disorder she does not rank that highly, nor does she rank the histrionic personality traits highly in any assessment of causal connection between those matters and the offending. The highest she puts it is this. Had you been properly diagnosed and treated at the time of the offending, that is for the major depressive disorder, she said it is possible that you would have refrained from wrongdoing and made different decisions. It is clear therefore that you must accept responsibility for your decisions, and that there is nothing, no psychiatric condition which can explain or operate to reduce your moral culpability. Clearly your counsel did not put it on the basis that you were seeking to excuse your responsibility by reason of that.
40 You have been committed to your treatment with Dr Janev. She focused on cognitive behavioural and mindfulness-based interventions to improve anxiety mood and personality pathology and she also introduced you to some invention strategies relating to your history of MDMA abuse. It is important to note that the anxiety and depression you exhibited throughout the time that you were receiving counselling from her related to your apprehension related to your arrest and to your dealings with the court. Her interventions have been successful and she notes that you are currently experiencing normal levels of depression, anxiety and distress compared to the general population. Again that demonstrates that you clearly had the intelligence and resilience to be able to understand, accept responsibility for your conduct, and that bodes well for your future.
41 Of concern though is that even after the extensive counselling with Dr Janev you report to her that you do not consider yourself to be a criminal.
42 Although she assesses you are being at low risk of re-offending it is clear that the sentence must reflect specific deterrence as well as general deterrence because of these problems that I have identified with your lack of insight in to the responsibility for your behaviour in relation to the other people you used, your remorse limited to the impact on your family, and the fact that you still do not consider yourself to be a criminal.
43 You are still relatively young, only 24, and you have a strong supportive family. Apart from your brother Andy and his involvement in the cannabis that I have already referred to, none of the rest of your family has had any contact at all with the criminal justice system. The closest they come is that your sister is a law student or studying at Leo Cussen at present looking towards her admission to practice. You are intelligent and after what must be described as a couple of lost years you have since your charge and arrest persuaded the university to readmit you. You engaged well with your studies last year and this year. The academic transcript shows your intelligence and your application when you are prepared to put it to proper and lawful ends.
44 You have continued to work in the family business. You therefore demonstrate the educational, opportunity for employment, and employment skills and strong family support which bode well for you. It is a concern as I said in the course of the plea that you had all of these supports around you at the time of the offending but they were not sufficient to deter you from embarking on what is not a single act of stupidity, but a concerted course of conduct over a considerable time. It is clear therefore that whilst I do regard your prospects for rehabilitation as reasonable, they depend to a great extent on your deciding to take better advantage of the opportunities you have, and the supports that surround you than you have in the past, or that you did at the time of the offending.
45 In my view no sentence other than one of imprisonment immediately served is appropriate to reflect your overall criminality over this extended period, but your early plea of guilty, your relative youth and those objective features I have identified that are available to you should you choose to take proper advantage of them to assist and encourage your rehabilitation all apply to reduce the sentence, both the head sentence and the non-parole period which I would have considered otherwise applicable for this criminality.
46 Would you now please stand.
Sentence: 47
48 On all charges to which you have pleaded guilty you are convicted.
49 On Charge 1 of trafficking in MDA you are sentenced to be imprisoned for a period of four years
50 On Charge 2 of trafficking in cannabis you are sentenced to be imprisoned for a period of 18 months, and I direct that 6 months of that be served cumulatively on Charge 1, the base sentence.
51 On each of Charges 3, 4 and 5 possession of the three prescribed precursor chemicals, on Charge 7 possession of the pill press, and Charge 8 possession of the drug of dependence MDP2P you are sentenced to six months imprisonment. All of those sentences are concurrent with each other and concurrent with the sentence on Charge 1.
52 On Charge 6, the charge of possession of the possession of the anabolic steroid you are fined $1000.
53 On the uplifted summary charge of possession of the pepper spray you are also fined again an amount of $1000.
54 That makes a total effective sentence of 4 years and 6 months and I fix a period of 2 years and 6 months as the time you must serve before being eligible for parole.
55 You have spent 26 days in pre-sentence detention and I direct that that be counted as part of the sentence already served.
56 Pursuant to s.6AAA of the Sentencing Act I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of 6 years and 9 months, and I would have fixed a non-parole period of 4 years and 6 months.
57 I propose to make all of the ancillary orders sought, that is a forensic sample order, a pecuniary penalty order in respect not only of the amount relevant to the MDA tablets, but also the amount relevant to the cannabis sales. I also propose to make the disposal order for the items sought, and the forfeiture order for the items sought.
58 So far as the two fines are concerned there is an automatic stay of one month on those. You have these options, of paying the fines in total straight away, or applying for an extension of time for payment of those fines; of entering into an instalment program for payment of the fines, of converting them to unpaid community work, or of applying for the fixing of a term of imprisonment in default of payment of those fines.
59 Apart from granting a further stay on the payment of the fines, that is the only order I can make at this stage in respect of the fines, I do want to say this though and note it on the record. If you apply to me for conversion of those fines to default imprisonment I take the view that because each of them are separate from and independent of the other offending to which I have sentenced you that I would most likely make any time in default cumulative upon the sentences that you are already serving. Do you wish to apply for an extension of time to pay the fines at this stage, or leave it at the one month stay and have your legal advisors speak to you about that and assist you in making a decision about that later?
60 I should warn you that it is in your interests to make sure you contact the registry of the court in relation to any extension of time or conversion before the automatic stay time is expired so that you are in control of that process rather than finding yourself having to be chased by the court. That is particularly so if you choose not to pay the fines during a term of imprisonment to make sure you are proactive about it so as not to interfere with your earliest release date when that time approaches.
61 Do the orders that I have pronounced reflect what I said I intended to do? Any further orders?
62 MR ALBERT: The ancillary order, does Your Honour have the hard copies, we've got some hard copies there, I understand they were sent through by email.
63 HER HONOUR: Yes, the hard copies were sent through. The only one I need to check is the forensic sample order, is that retention or taking?
64 MR ALBERT: Taking Your Honour as I understand.
65 HER HONOUR: Thank you. Mr Khodher I have made the order for a taking of a forensic sample having regard to the nature of the offending. I am directing that that be taken by way of mouth swab or buccal sample. That requires you to put a swab like a cotton bud on the inside of your cheek and rub it until a sufficient sample has been provided. I must advise you that if you do not consent to the taking of that sample, and cooperate in the provision of it, the police are authorised to use reasonable force to obtain it, and it is at least likely that they will use the more invasive means of obtaining the sample, namely the taking of a blood sample, do you understand that?
66 OFFENDER: Yes Your Honour.
67 HER HONOUR: Thank you. Would you please remove Mr Khodher. I will provide all the signed orders tomorrow after I have finished sentencing Mr Dinah. Thank you, adjourn.
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