Director of Public Prosecutions v Khodr

[2012] VCC 533

IN THE COUNTY COURT OF VICTORIA Revised

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-10-01712

DIRECTOR OF PUBLIC PROSECUTIONS

v

SALEH KHODR

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 April 2012
CASE MAY BE CITED AS:	DPP v. Khodr
MEDIUM NEUTRAL CITATION:	[2019] VCC 533

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms F. Skepper
For the Accused	Ms J. Caust

HER HONOUR:

1       Saleh Khodr you have pleaded guilty before me to one charge of possessing articles or equipment with the intention of trafficking in a drug of dependence. The facts underlying your offending are as follows. In January 2009 you approached Chris Peters, a farmer who owned a 47 acre property at 95 Konagaderra Road in Oaklands Junction which had two houses on it, seeking to rent a vacant house on the property, offering to pay $10 a week more than the advertised rent.  You told Mr Peters you were desperate.

2       

A few days later you returned to the property with your co-accused,

Adam Raad who paid over $2000 in cash from a leather bag as deposit.  It was indicating that it was you who was renting the house and that Mr Raad was just helping you to move in.

3       Very soon after you had moved in Mr Peters and his son became suspicious about activities in the house.  They noted that as soon as you moved in cloth was put over the windows, blinds were pulled down all the time, hardly anyone was seen at the house and cars that visited parked in the front of the property rather than in the shaded car park and eventually Mr Peters noted water draining from the sinks in the house and flowing from the outlet pipe was brown.  Police were contacted, the Peters being suspicious that drugs were being produced.

4       From 17 March 2009 you were under police surveillance and were seen on that day to drive from your house at 28 Horn Street at Campbellfield to the Oaklands Junction property, leaving it 20 minutes later and then returning again.

5       On 19 March you were seen by police to drive from Campbellfield to a number of locations and then with an unknown male to park at a Caltex Service Station in Greenvale and remove a metre long calico bag from the driver's rear seat, placing it in the boot.  Police saw boxes in the car with a red, white and blue plastic bag and a large box with identifying code marks, quantity 1000.  You and the unknown male then drove to the Oaklands Junction property at about midday, leaving it about half an hour later.

6       On 27 March 2009 a warrant was executed on the house at Oaklands Junction which was found to have been entirely turned over bar one room to operation as a clandestine amphetamine factory.  Chemicals and equipment used in the production of amphetamine were located, analysis of which demonstrated that an amphetamine extraction had taken place.

7       Your co-accused Nejat Ceylan was found in the bedroom of the house and Adam Raad was found in bed in the front bedroom, the only room not being used as a laboratory.  The third co-accused, Fernando Coletta, was apprehended in the kitchen holding two clear glass containers.

8       

A warrant was executed at your house in Horn Street Campbellfield on

30 March.  You were interviewed by police at Broadmeadows Police Station on that day.  In a record of interview with police you admitted going with Raad to rent the property saying you stayed there for a couple of days but you knew something was going to happen and so the others tried to kick you out.

9       You said that when you went to get your stuff you found your bedroom door had been broken so you took your belongings and left.  You said Raad paid the rent because you did not have the money and that you stayed there in total for less than 20 days.  You said that Raad and Ceylan would come at night and leave in the morning before you woke up, you sleeping in the first bedroom with the door closed. You told police you never saw what the others did as all other rooms were locked, that you never used the kitchen to make drink or food.  You said you saw some glassware and suspected drugs were being made.

10      It is the prosecution case that you aided and abetted in this enterprise in the setting up of a laboratory, if you like, and that many of your answers to police were fabricated.  The position was not resisted by your counsel on the plea and ultimately you pleaded guilty before me to one charge of possessing equipment with the intention of trafficking in drugs.

11      I now turn to your personal circumstances.  You are 45 years of age and were born in Lebanon, one of 16 siblings.  Your father was a citrus grower and road-worker.  Your family suffered a great deal in the civil war with the battle between the PLO and Syrian groups in Lebanon.  Three of your brothers were killed.

12      In 1985 when you were 18 your brother, Hussein was killed as he stood next to you in your fifth floor apartment when a rocket came through the wall.  You suffered a very severe leg injury in the same incident and ultimately your leg was amputated.  The rest of your family had moved to the country at the time.  Your brother, Abdul, was shot in 1990 whilst fighting and another brother was shot in 1992.

13      You completed the equivalent of year 12 in Lebanon and then studied electronics with a view to working in construction and installing electrical wiring in buildings.  You met your wife in Lebanon before your injury.  She had gone to Australia with her family and returned to Lebanon for a visit.  You underwent two years of rehabilitation and emigrated to Australia in 1987 when you were 21, becoming an Australian citizen in 1989.  You now have two brothers and a sister living in Australia.  Only one of your siblings still lives in Lebanon, the rest having moved overseas, five of them settling in Dubai.  You were sponsored to Australia by your wife's family and married her soon after your arrival.

14      You have a good work history.  You worked for six years in a Brunswick clothing factory as a machinist and then a repairer until the business closed.  You then became a taxi driver which occupation you worked at for 11 years until 2008 when you were placed on a disability pension.

15      You have six children from your marriage, ranging in ages from 23 down to ten.  You have a 14 year-old son who has a congenital condition whereby he was born without testes and this has interfered with his physical development.  In 2004 your wife and children returned to Lebanon, largely to seek treatment for your son and have remained there.  You stayed behind in Australia to earn money, which you did until 2007 but the trip to Lebanon by your family was continually extended and it appears you were living in a condition of isolation and some loneliness in the period following the time they left.

16      In 2007 you visited your family in Lebanon shortly before which you sold your taxi license, intending to pay off the mortgage on your home.  You discovered in Lebanon however that your family was in more dire financial state than you had realised and you gave most of that money to them.  In the interim you ceased making payments on the mortgage outstanding on the house and it was soon after repossessed.  This occurred after your return from Lebanon and essentially you were left fairly isolated and homeless.

17      Soon after your family's departure you began abusing the prescription medication prescribed for your leg.  You began buying it on the street.  This tipped over into illicit drug use in about 2004-2005, that is you began using amphetamines and Ice.  This use apparently peaked in about 2009.

18      At the time of this offending you were on bail for previous offending for which I sentenced you to a term of imprisonment in October 2011.  In 2008 you became involved in a criminal ring of people who supplied credit card details belonging to other persons, to each other, engaging in a conspiracy to do so between 6 August and 21 November 2008.  The centre of that ring was one Darren Hafner and he supplied drugs to you on a regular basis in exchange for credit cards and credit card numbers.  Hafner also obtained credit card numbers from other people.  It was the Crown case that you were by far the most prolific provider of unauthorised credit card material to Mr Hafner.

19 In addition you arranged a number of transactions with Hafner in which he would supply amphetamines to you and you would on-sell them to a third party at being alleged that between 6 August and 21 November 2008 you and Hafner trafficked at least 134.5 grams of amphetamine, that trafficking including not just actual sales but agreements to sell and offers to sell which are part of the trafficking definition in the Drugs, Poisons and Controlled Substances Act.

20      On 7 October 2008 police executed a search warrant at your home in Katherine Avenue in Tullamarine where you were living with a family friend and there found three passports belonging to other persons from whose home they had been burgled, personal financial documents which had been in an Australia Post van which was stolen a month before, an RACV card which had been in a wallet which was stolen from the owner's jacket also in September 2008 and a large number of other documents which had been in the Australia Post van at the time it was stolen.

21      Finally ten boxes of Cab Charge tickets which had been ordered by the Australian Greek Welfare Society in September 2008 to be used for elderly people to pay for taxis which did not arrive in the mail were also found in your bedroom.  Eventually, as I said, you were sentenced by me in October 2011 on a charge of conspiracy to cheat and defraud, handling stolen goods and trafficking amphetamine you having pleaded guilty to all of these charges and on that occasion I sentenced you to a total effective sentence of four years with a minimum term to serve of two years.

22      

Insofar as the current offending before this court is concerned I accept that at the time of the offending you were still in the grip of your amphetamine addiction and I accept, as was diagnosed then by psychologist,

Elizabeth Warren, that you were suffering a generalised mixed anxiety disorder, had a pattern of poly-drug use and major depressive disorder.  I accept now as I did then that you were extremely ashamed by your offending and your counsel, in her plea to me, said you had told her the person who committed this offending was not the "real you".

23      

On 18 April 2010 you were sentenced to 14 months imprisonment with an eight month minimum, six months of which was suspended on charges of handling and obtaining property by deception for offending occurring on

26 May 2007

.  On 1 September 2007 an intervention order was taken out on you by Ms Pelikan, a woman who you were residing with from about August 2005 until December 2008.  Ms Pelikan made a statement to police ultimately detailing much material relating to the offences for which I sentenced you in October of last year.

24      Your counsel informed me it was your instructions you are not in a relationship with Ms Pelikan, but I note in the sentencing remarks attached to the sentence I handed down in October 2011 your then counsel informed me that you and Ms Pelikan had had a relationship, although only for a few months.  But it was the prosecution's submission that on the evidence it was quite clear that you were in a relationship with her from August 2005 to December 2008 and I accepted that submission.

25      In any event what you were charged with breach of the intervention order and for harassing a witness, that being Ms Pelikan, and that offending breached your suspended sentence and resulted in you serving a ten-month term of imprisonment.  It was apparently at that stage you determined to rehabilitate yourself and essentially underwent your own detoxification whilst in prison and you have not used drugs since being released in January 2011.  You have continued, your counsel informs me, to abstain from drug use.

26      Your time in gaol has not been easy.  You were the subject of an assault at the Scarborough North Unit in Port Phillip Prison where you were then being housed when other inmates became convinced you were a police informer and pushed you off a balcony.  You suffered multiple fractures to your pelvis along with other injuries, were hospitalised for a week in St Vincent's in the city and have since been held in a St Vincent's ward at Port Phillip Prison.

27      You have difficulties with your amputated leg, still feeling phantom pain.  You have been fitted with a new prosthetic leg, but there are problems with a screw which has caused inflammation of the stump and in addition you continue to suffer from back injuries which have occurred over the years because of your preference to work without a prosthetic limb and get about on one leg.

28      On a more positive note, at the time I sentenced you in 2011 the only person from your family in court was your eldest son who had returned from Lebanon with his new wife, you being too ashamed to tell other members of your extended family of your predicament.  By contrast on the plea in this matter a large number of relatives attended, including two brothers, a sister and a nephew.  They have now been made fully aware of your position so that you can expect greater assistance on your release from prison and greater contact with them whilst in gaol.

29      Your counsel sensibly conceded that the only way I could deal with you in relation to this offending was a further term of imprisonment, but on your instructions sought a term which would be totally concurrent with the sentence you are serving.  However this offence was committed whilst you were on bail for some of the charges on which I sentenced you last year.

30 Obviously this is a matter of some seriousness, it being an integral condition of any bail that you not commit any further offences and the failure of a defendant to honour such a condition is noted in s.16(3)C of the Sentencing Act which states that: "A term of imprisonment for an offence committed whilst a person is on bail must, unless otherwise ordered by the court, be served cumulatively to any uncompleted sentences imposed on that offender."

31      Notwithstanding that I have accepted that this last piece of offending by you occurred during a general period of disintegration and drug use, it is a serious piece of offending where general deterrence has a significant role to play and is aggravated, in my view, by its commission whilst you were on bail for other serious offences.  It is therefore my view there should be some cumulation in the sentence I now impose.

32      I am going to sentence you on the charge of possessing articles with the intention to traffic in a drug of dependence to 12 months imprisonment.  Now this is a straight sentence.

33 Section 14 of the Sentencing Act instructs a judge who is sentencing an offender who is already serving a term of imprisonment with a head and minimum term and who then sentences that offender to a further term containing a head and minimum term to set a new minimum, non-parole period which covers both aspects of offending.

34      However I am only sentencing you to a straight sentence and I would be grateful for some assistance from counsel as to how I would express that because I want six months of it to be added to the minimum term.

35      MS CAUST:  If I might, Your Honour, just get the provision before me.

36 HER HONOUR: Section 14 does not help. What I really need is Mr Dickinson from downstairs.

37      What I will do is this: I state there is 12 months imprisonment, six months of that sentence is to be served cumulatively to the sentence previously imposed, that is four years with two years and I want that six months to include a new non-parole period of two years and six months.

38      I am not quite sure how I express that but I will sort that out but that is my intention.  Is there any PSD in relation to that sentence?

39      MS SKEPPER:  No there is not, Your Honour.

40      MS CAUST:  No Your Honour.

41      HER HONOUR:  No PSD right that is fine.  OK, what I will do - - -

42      MS CAUST:  I think that makes it clear.  Your Honour is setting a new non-parole period having regard to the sentence of 12 months, a new non-parole period of two years and six months.

43      HER HONOUR:  Yes and that will mean there will be a new head term of four and a half years.

44      MS CAUST:  Yes, yes.

45      HER HONOUR:  All right, so look I will sort that out with Corrections when we fill out the CLMS form but that is the way that I propose that it be.

46      MS CAUST:  Yes Your Honour that is clear.

47      MS SKEPPER:  Yes Your Honour.

48      HER HONOUR:  Thank you.  Pursuant to s.6AAA had you not pleaded guilty I would have sentenced you to a term of 18 months.

49      MS SKEPPER:  Your Honour there was one issue, the disposal order was altered after negotiations.  I emailed a new copy yesterday.

50      HER HONOUR:  Yes, now my wonderful associate has fixed all that up.

51      MS CAUST:  That is not opposed, Your Honour.

52      MS SKEPPER:  There should now only be two items on the disposal order.

53      HER HONOUR:  All right.  Is a forensic sample sought?

54      MS SKEPPER:  Yes it was a retention order, Your Honour.

55      HER HONOUR:  A retention order, all right I will sign that.  I have got six copies here, do you only want three or do you want six?

56      MS SKEPPER:  Of the disposal order, Your Honour?

57      HER HONOUR:  No the retention order.

58      MS SKEPPER:  We only need three Your Honour, it must have been handed up twice I think.

59      HER HONOUR:  All right, I have got that thank you.  Yes thank you I will hand that down.

60      Thank you Mr Khodr, I hope - have a seat it is all right - I hope things go a bit better for you in gaol this time but once it is done it is done and hopefully when you come out things will be better with your family and we will not see you again, all right.  Thank you Mr Khodr.

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