Director of Public Prosecutions v Leung; Director of Public Prosecutions v El Assaad

[2021] VCC 1422

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-18-02608 Leung
CR-18-01979 El Assaad
Indictment No: C2013633

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIU MING LEUNG

and

DIRECTOR OF PUBLICATIONS

v

JAMAL AHMAD EL ASSAAD

---

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	9 and 10 June 2021 (Plea); 21 September 2021 (Further plea)
DATE OF SENTENCE:	22 September 02021
CASE MAY BE CITED AS:	DPP v Leung; DPP v El Assaad
MEDIUM NEUTRAL CITATION:	[2021] VCC 1422

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:                    Sentence - Pleas of guilty

LEUNG - Import commercial quantity of a border controlled precursor - Rolled up charge two occasions of offending - Reckless as to nature and quantity of what was contained in parcel consignments - Significant role in offending although acting upon instructions - Devolved job of collecting parcels to others - No criminal record - Young offender - Delay - Parity not apt in respective circumstances

EL ASSAAD - Attempting to import commercial quantity of a border controlled precursor - Charge relates to one occasion of offending - Reckless as to nature and quantity of what was contained in parcel consignment - Lesser role in offending - Duration of offending very short - Took delivery of consignment and forwarded it upon instruction - Recruited friend to collect parcel - No criminal record - Delay - Suffers from mild intellectual disability - Also suffers from generalised anxiety disorder and recurrent depressive disorder (mild to moderate severity) - Role of impairment of mental functioning in offending - Intellectual disability and associate cognitive deficits in combination with depression and anxiety impacted on appropriate and rational decision making and judgment - Parity not apt in respective circumstances

Legislation: Crimes Act 1914 (Cth)

Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Worboyes [2021] VSCA 169

Sentence: LEUNG - Convicted and sentenced to 6 years’ imprisonment with a non-parole period of 3 years 6 months’ imprisonment - 1099 days pre-sentence detention declaration as having already been served - s.6AAA Sentencing Act 1991 declaration

EL ASSAAD - Convicted and sentenced to 2 years’ imprisonment to be released forthwith giving security by way of recognisance in the sum of $3,000 to be of good behaviour for 3 years - Recognisance Release Order with conditions

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Saunders	Commonwealth DPP
For the Offender Leung	Ms J Poole	Michael J. Gleeson & Associates
For the Offender El Assaad	Mr M Fitzgerald	Doogue and George

HER HONOUR:

1Siu Ming Leung, you have pleaded guilty to one charge of importing a commercial quantity of a border-controlled precursor, and Jamal Ahmad El Assaad, you have pleaded guilty to one charge of attempting to import a commercial quantity of a border-controlled precursor. 

2The maximum penalty for each of the offences to which I have just referred is 25 years’ imprisonment.  This reflects the seriousness with which Parliament regards the offences and is a matter which I must take into account in sentencing you. 

3Siu Ming Leung, you were born in December 1994 and therefore you were 23 years old at the time of the offending.  You are a Chinese citizen, but at the time of the offending you had been living in Australia for several years.  You were living at an address in Parkville, Victoria, at the relevant time.

4The charge to which you have pleaded guilty is a rolled-up charge which encompasses two occasions of offending, being on or about 26 March 2018 and on or about 6 May 2018.

5Jamal Ahmad El Assaad, you were born in September 1990 and therefore you were 27 years old at the time of the offending.  You are an Australian citizen and at the relevant time you were living at an address in Broadmeadows, Victoria.

6You are charged on the basis of having offended on one occasion, being on or about 26 March 2018.

7I was told that there is an alleged co-offender, Murat Hanci, who was born in November 1970 and is charged with attempting to import a commercial quantity of a border-controlled precursor on one occasion.  He is intending to conduct a trial.

8I was told that the charges against you, Mr Leung, and you, Mr El Assaad, arise out of the importation or attempted importation of ephedrine into Australia.  Consignments were intercepted by Australia Border Force (“ABF”) officers on 26 March 2018, when Consignment 1 was intercepted, and 6 May 2018 when Consignment 2 was intercepted.

9Ephedrine is a border-controlled precursor and in respect of each of the consignments a commercial quantity of ephedrine was found – the threshold for a commercial quantity of this substance is 1.2 kilograms.

10The charge to which you have pleaded guilty, Mr Leung, relates to both consignments, whilst the charge to which you have pleaded guilty, Mr El Assaad, relates to the first consignment only.

11In relation to Consignment 1, I was told that on 26 March 2018 an express mail service consignment was chosen for examination by ABF officers at the Melbourne Gateway Facility.

12The consignment was addressed to “Consignee: Lau Tung Hing”, with a parcel locker number detailed in the address for a facility in Collins Street, Melbourne, as well as a mobile number and tracking number.

13The contents of the consignment were declared as “Rolling Massage”. 

14The consignor was listed as Leong Chee Kitt, with an address in Malaysia.

15The parcel locker number detailed on the package was registered in the name of Lau Tung Hing.

16When ABF officers examined the package they found four massage fitness rollers, but when these were cut open they were found to contain a white crystalised substance which, on subsequent analysis, weighed 1894.6 grams and was found to consist of ephedrine with a purity of 80.9 per cent.  The total net weight of pure ephedrine was 1532.7 grams and therefore a commercial quantity.

17On 27 March 2018, ABF officers removed the ephedrine from the massage rollers and replaced it with an inert substance.  They then reconstructed the consignment for the purposes of a controlled delivery.  The parcel was taken to the Australian Post Office in Southern Cross Lane in the city. 

18On 3 April 2019 you, Mr Leung, contacted you, Mr El Assaad, using the chat feature on a gaming site known as League of Legends.  In that chat you,
Mr Leung, asked you, Mr El Assaad, if you, Mr El Assaad, could help you,
Mr Leung, tomorrow.  You, Mr El Assaad, asked what the job was.  You,
Mr Leung, proposed that you drive Mr El Assaad to the post office to pick something up for you in return for $2,000.  You, Mr El Assaad, asked you,
Mr Leung, what you wanted him to do, saying “is there a risk of jail or getting caught? I assume so that’s why u won’t do it ya self, correct?”  You, Mr Leung, replied that there was no risk if you are smart.  You, Mr El Assaad, then proposed using another person to collect the parcel and splitting the money.  After this, you arranged to meet each other.

19In the early hours of 4 April 2018, you, Mr Leung, and you, Mr El Assaad, met with each other and Mr Hanci at the Box Hill Central carpark to discuss picking up Consignment 1 from the post office.

20During the meeting you, Mr Leung, took a series of photographs to confirm Mr El Assaad’s identity and address.

21In the morning of 4 April 2018 you, Mr El Assaad, communicated with Mr Leung on the League of Legends chat site as follows:

22At 7:10:31 you, Mr El Assaad, messaged Mr Leung, saying:  “about to head off and get my mate and wake him up”.

23At 9:01:36 you, Mr El Assaad, messaged Mr Leung, saying:  “mate is in the place hopefully all goes well”.  Then, at 10:35:23, you, Mr El Assaad, messaged Mr Leung saying “heading home in 10” and at 10:35:24 you messaged Mr Leung saying “Package receive”.  At 10:37:20 you, Mr Leung, responded to Mr El Assaad asking whether he was at home and you,
Mr El Assaad, replied that you were.

24At about 9.37 am on 4 April 2018, Consignment 1 was collected from the parcel desk at the Australian Post Office LPO by Mr Hanci, who presented his Victorian driver’s licence and a typed letter of authority signed by a Hing Tung Lan or said to be signed by Hing Tung Lan, to obtain possession of the consignment.

25CCTV footage shows Mr Hanci accompanied by you, Mr El Assaad, getting into a white Toyota with Consignment 1 in Mr Hanci’s possession. 

26At about 1.22 pm on 4 April 2018 you, Mr Leung, and you, Mr El Assaad, discussed how to forward Consignment 1 to New South Wales, using the League of Legends chat site to do so.

27A series of images found on each of your phones show that at about 2.25 pm on 4 April 2018, Consignment 1 was sent from the Dallas LPO to New South Wales, with the consignment being addressed to Cong Luong, with a particular parcel locker address in Botany, New South Wales.  The tracking number was seen in the images and the sender was Murat Hanci.

28On 5 April 2018, Consignment 1 was collected from the particular locker address in New South Wales.  

29Later that day you, Mr Leung, and you, Mr El Assad, discussed the contents of Consignment 1, saying:  “It’s not empty but the important” - or you, Mr Leung as I understand it said, “It’s not empty but the important stuff is gone”.

30You, Mr El Assaad, replied “How am I meant to know bro I sent it off with it being 7 kg, it was not empty”.

31On 6 April 2018 you, Mr El Assaad, and you, Mr Leung, discussed and arranged payment of $2,450 to be made to you, Mr El Assaad, for your role in collecting Consignment 1.

32I note that in your evidence however, Mr El Assaad, at the plea hearing you told me that you only ever received - you said $335 or $375 at another point in your evidence.

Consignment 2 (Mr Leung only)

33On 5 May 2018, DHL Express (Australia) notified ABF of a consignment with a House Airway Bill Number, detailed in the opening, within the Integrated Cargo System – this related to Consignment 2.

34Consignment 2 was addressed to “WEST ACOTT” with the address being your address, Mr El Assaad, in Broadmeadows.

35The consignor details were set out in the prosecution opening but appeared to be the name of a company said to be in Hong Kong.

36The consignment was said to contain four packages of items described as “A189 Bluetooth Speaker”. 

37On 6 May 2018, Consignment 2 arrived in Australia as air cargo on Qantas flight QF0030 and was subsequently seized by ABF.  Upon deconstructing the assignment, four packages of Bluetooth speakers were found and within those there were a number of lithium batteries.  Concealed within the batteries was a white crystallised substance which, upon subsequent examination, was found to weigh 6274 grams.  The substance was ephedrine with a purity of 70.30 per cent, which meant that the net pure weight of pure ephedrine in this second consignment was 4410.62 grams.

38In the latter half of 2018 you, Mr Leung and you, Mr El Assaad, communicated on the League of Legends chat site, discussing a further delivery and confirming that the appropriate address for the delivery was your home address, Mr El Assaad.  However, you, Mr El Assaad, discontinued your involvement in the arrangement before the importation took place.

39ABF officers conducted an investigation in respect of each of the consignments and through inspection of CCTV footage, phone records and other records, they were able to identify you as one of the offenders, Mr El Assaad.  They were also able to identify Mr Hanci, who was subsequently interviewed by police.  The details of his record of interview were set out in the prosecution opening.  Mr Hanci was given a copy of his digitally-recorded record of interview and on 4 May 2018 he arranged to watch his record of interview with you, Mr El Assaad, and your partner, Crysta Ferguson, who used her mobile phone to record the three of you reviewing the record of interview, as well as the conversation that took place.

40During the conversation there was discussion of the fact that the ABF knew of your identity, Mr El Assaad.  You said that you did not use your identity when forwarding the consignment.  Mr Hanci could be heard saying “I’m not a snitch. I’m not a snitch”.

41You, Mr El Assaad, and Mr Hanci, discussed the fact that you had been captured on CCTV and you, Mr El Assaad, said that your role was to drive Mr Hanci to Bourke Street because Mr Hanci did not have a car.  You said that you were doing it as a favour and helping a friend.

42You, Mr El Assaad, said:  “Should never have given you this job.  Should never have done this fucking thing.”

43There was discussion among the three of you and an unknown person about Mr Hanci lying during the record of interview.

44You, Mr El Assaad, referred to the “big boss”.  Mr Hanci said that the “big boss” was a friend of yours, Mr El Assaad.  You, Mr El Assaad said, “We made this. We agreed to go together”.  Mr Hanci said that he worked for you,
Mr El Assaad.

45In your discussions, reference was made to “Sam” and doing jobs for “Sam”.  There was discussion about “Sam” saying the parcel did not have anything in it and that the drugs were missing.  There was mention of the consignment having been shipped from the Dallas Post Office under Mr Hanci’s name.

46You, Mr El Assaad, said:  “We had no idea what was in that box. We had some sort of idea between (sic) were naïve to it”.  Ms Ferguson said that it is all on the League of Legends Chat.  There was discussion about the League of Legends chat log and it was said that “if they find it they find Sammie… They will see he is the bigger fish”.

47You, Mr El Assaad, suggested that Mr Hanci agreed to become involved because he was desperate for money.  You confirmed that Consignment 1 was left with you and not Mr Hanci, because Mr Hanci did not want it in his house.  Mr Hanci responded “I didn’t accept it because I was at the course… I said I don’t [want] it sitting in my fucking house”. 

48Each of you discussed your roles, with Mr Hanci saying “We are not the big people… [We’re] just the puppets and the show”. 

49On 6 May 2018 Consignment 2 arrived in Australia.

50On 7 May 2018 ABF Officer Hallam contacted you, Mr El Assaad, and arranged to meet with you at the Broadmeadows Police Station on 9 May 2018.  On 9 May 2018, ABF Officers Hallam and Marsh met with you,
Mr El Assaad, at the Broadmeadows Police Station and you took part in a digitally recorded record of interview, and in that interview you said that you were known by the name of “Justin” and stated your address in Broadmeadows.  You said you took your friend, Alex (Hanci), to the post office at 111 Bourke Street, Melbourne.  You said Alex asked you to do that because he had “a job” and that he was being paid to pick up a parcel from the post office.  Alex had a letter of authorisation to enable him to collect the parcel and as a result of doing the job, Alex was able to pay the sum of $250 which he owed you.

51After concluding your first record of interview, you left the police station but you returned a short time later, again meeting with ABF Officers Hallam and Marsh.  You asked to make a further record of interview, and in that second interview you made admissions to meeting Mr Leung online, being involved in the arrangements in respect of Consignment 1 and the recruitment of Mr Hanci.  You also made admissions about meeting at Box Hill with Mr Leung and Mr Hanci, and picking up Consignment 1 from the post office in Bourke Street and forwarding it to an New South Wales address from the post office in Dallas.  You received payment for your involvement in picking up Consignment 1 and you admitted using the online chat feature of League of Legends to communicate with Mr Leung.

52On 9 May 2018 ABF officers took control of Consignment 2, which was still in the Integrated Cargo Delivery system and had not been delivered. 

53Subsequently, ABF officers attended your home, Mr El Assaad, and seized items, including your mobile phone, and that of Crysta Ferguson. 

54Subsequently, they executed a search warrant, which enabled them to access your League of Legends accounts, Mr Leung and Mr El Assaad, and also the chat logs.

55On 19 September 2018 ABF officers executed a search warrant at your address, Mr Leung, seizing relevant items, including your mobile phone.

56Amongst other things, a field interview was conducted with you, Mr Leung, and you were arrested and taken to ABF headquarters, where a digitally recorded interview took place.

57Although you confirmed your mobile phone number and that you had a League of Legends account which was identified in material seized by ABF, you said that you did not know Mr El Assaad or Mr Hanci, or Hing Tung Lau, and had no knowledge of, and had not seen, the letter of authorisation which had been used by Mr Hanci to collect Consignment 1. 

58When presented with the League of Legends chat log from your account, Mr Leung, which offered a payment of $2000 to Mr El Assaad, you made no comment.

59Details of the phone analysis of each of your phones, Mr Leung and Mr El Assaad, were set out in the prosecution opening.

60Data on your phone, Mr Leung, included an image of Mr El Assaad sitting in a car holding an identity card, as well as an image of a Working with Children identity card issued to Mr El Assaad.  Also found were two images of a phone screen with Mr El Assaad’s address on it and metadata established that the images taken on your phone were taken in the carpark at Box Hill Central.

61An image of a handwritten note titled “letter of authorisation”, detailing Consignment 1 and signed as “Hing Tung Lau” was also found.  The note had an endorsement on it “Melb Burke St” handwritten in the top right-hand corner.  Also found on your phone were images of the address and a receipt for the direction of Consignment 1 to New South Wales.

62Data on your phone, Mr El Assaad, included images of a Facebook friend request from Sammie Leung, and images of the address, and a receipt for the redirection of Consignment 1 to New South Wales, as well as a series of SMS messages between you and Mr Hanci regarding the collection and distribution of payment.

63Data on Ms Ferguson’s phone included the recordings to which I have previously referred whilst you and Mr Hanci were viewing the record of interview and contained recordings of conversations between you,
Mr El Assaad, Mr Hanci and others, discussing details relating to involvement in the importation and subsequent redirection of Consignment 1, as well as recordings of you, Mr El Assaad, Mr Hanci and others, discussing your record of interview, Mr El Assaad, with ABF Officer Hallam.  That ends the summary of the alleged offending to which you have pleaded guilty.

64In each of your cases, Mr Leung and Mr El Assaad your offending is serious and is deserving of a punishment which is adequate in all of the circumstances.  Your conduct must be firmly denounced.

65I must impose a sentence that is of a severity appropriate in all the circumstances of the offence, having taken into account all relevant matters including those enumerated in s16A(2) of the Crimes Act 1914 (Cth) (‘The Act’).

66Each of you were prepared to involve yourselves in an enterprise which you knew was illegal and where you were reckless as to the nature and quantity of what it was that was contained in the parcel in the first consignment, and you, Mr Leung were prepared to be involved again in respect of the second consignment, with the same state of mind.  Each of you were motivated by the promise of financial reward.

67Our Court of Appeal has said that the need for money for payment of debts does not necessarily affect an offender’s culpability, and that in most cases concerning drug importation, stern punishment is warranted.

68Ordinarily, strong weight must attach to general deterrence in a bid to deter others from becoming involved in such serious offending. Offending such as yours is often difficult to detect and proliferation of drugs in our society is a scourge that continues to plague our community.

69Your role in the offending, Mr Leung was especially significant, and involved two importations in contrast to Mr El Assaad, who was involved in one. Although it cannot be said that you were involved in organising the importation of the consignments into Australia, you did what you could to ensure their safe and undetected arrival into this country, and were prepared to do what you could to ensure their onward delivery, once they had arrived.  In saying this, I accept that you were acting on the instruction of others.

70You were not prepared to be directly involved in collecting the parcels-rather, you distanced yourself from this, getting others to do your dirty work, so as to avoid being detected yourself.  This aspect is relevant to your moral culpability, which overall I find is high.

71Mr El Assaad, you are to be sentenced in respect of one occasion of offending.  Your role in that offending was important as you were to take delivery of the consignment and forward this to people in accordance with Mr Leung’s instructions.  Whilst it is true that the duration of your offending, said to be 37 hours, was not lengthy, the steps that you chose to take during that period were significant.

72You also chose to distance yourself from collecting the parcel, so you recruited a friend to do so, although you drove him to the post office. There was a good deal of discussion at the plea hearing about this aspect.  It was said that you did not understand how to collect the parcel without having any identification, and did not know how to attend a post office.  Your Counsel Ms Poole said that it was your partner who was telling you to ask the questions about the risk involved and that at some stage she says not to get involved, which was when you passed the task onto Mr Hanci, thinking that you were no longer involved.  You told police that Mr Hanci ‘guilted’ you into driving him to the post office because he didn’t have a licence and his car had been impounded.  However, the chat logs indicate that within seconds of asking about the risk of going to gaol and telling Leung that you assumed that this was why he would not collect the parcel, you say that you knew someone who you could get to collect it, and that you would go with this person and Leung. I will return to this aspect a little later but, on any view, you were prepared to keep going with the task, albeit at a distance.

73After the conversation with Mr Leung where you told him you could get someone else to collect the parcel, you drove Mr Hanci to a carpark in the dead of night to meet with Mr Leung, then drove him to the post office later that day.  Your partner helped with delivering the parcel after you and Mr Hanci collected it.  She is fortunate not be charged with anything herself in my view, but this militates against your Counsel’s submission that at an earlier stage, she was telling you not to be involved.  While it might be so that you did not have ID, although it seems that you had some sort of identification because of the photos of you in the car in the carpark, the chat logs reflect that you were of the view that it was necessary to produce ID before collecting a parcel, which I understand is correct.  Subsequently, you enquired as to whether you needed ID in order to send the parcel (to NSW) and told Mr Leung that this was required.  Your Counsel told me that the reason that your wife sent the parcel on was that you were unable to understand how to attend the post office or the position with ID, however, at line 369 of the chat logs and following you tell Leung that ID is needed and at 383 you say that you knew this as you had sent things before.  Therefore, I do not accept that you did not know how to go to a post office, rather, you engaged Mr Hanci to go in order to distance yourself from illegal activity, albeit, that you were still prepared to be involved.  It may be in your mind that you were not involved but of course that was not the case.

74In assessing the objective gravity of your offending, Mr Leung and
Mr El Assaad, I have factored in the quantity of ephedrine which was involved in your offending, that is, the extent to which the quantity in Consignment 1 in each of your cases, and Consignment 2 in your case, Mr Leung, exceeded the threshold for commercial quantity.  Having said this, I am very much aware that you are to be sentenced on the basis of your reckless state of mind as to the nature and quantity of the substance involved, but it is also relevant as an objective matter, to take the relevant quantities or relevant quantity in your case, Mr El Assaad, into account.

75In sentencing each of you I have taken into account that neither of you have any prior Court appearances and there are no subsequent matters.

76I will now turn to your individual situations:

77You, Mr Leung, were 23 years old when you committed this offence, and you are now 26.

78I was told that you left Hong Kong, where you were born, to pursue studies in Australia. Your parents were neglectful of you from an early age as they often left you to fend for yourself whilst they were out playing Mahjong or, in your father’s case, working in his transport business.  Your older sister was living away from home, and you had no contact with older step-siblings.  By Grade 2 you were getting yourself ready for school and taking the bus there without any parental supervision.  You would spend a good deal of your time alone and spent a good deal of time playing video games.

79When you were 15 you decided to come to Australia to study.  You wanted to put some distance between you and your parents, especially your father who you had a strained relationship with.  Your parents supported the move as overseas study was seen as desirable. You successfully  completed your secondary education in New South Wales, and were well supported by your then girlfriend and her family.  However, your relationship with this girlfriend ended after Year 12. You moved onto university studies, however your commitment to study began to falter as you became more and more preoccupied with playing video games.  This led you to leaving a number of universities as you either failed exams or performed poorly.  You were playing video games all day and seeing friends at night, to the point where you were not engaging at all well in your studies.

80I understand that you met Mr El Assaad via video gaming in 2014 or 2015.

81Your parents, who were financially supporting you, required you to return home to Hong Kong in 2016 due to your poor study performance.  You returned home, visiting Japan for three months on the way, and spent your time at home playing video games.  You met a young woman online who was also visiting her family in Hong Kong but ordinarily studying in Melbourne at RMIT.  You met and developed a relationship. Your parents permitted you to return to Australia but with limitations on your budget.  You returned here on a holiday visa and after twelve months you obtained a student visa.  You and your new girlfriend moved in together.

82To supplement the funds provided by your parents, you coached other players of League of Legends and would also be paid to take part in video game tournaments on occasion.

83Despite enrolling in a university course, once again you did not apply yourself and became immersed in online gaming. Indeed, according to the report of
Mr Cummins, psychologist, you became addicted to the game, League of Legends. I was told that you were not earning much money from the various sources of income that you had and you were looking to make additional income.  It was in this context that you committed the offences now before me.

84I was told that you were advised by a Sydney friend in early 2018 that you ought advertise your availability for work on social media. You were advised that there was paid work available to collect parcels. You were apparently told that the parcels did not contain drugs but you suspected that the parcels contained something illegal, and you were reckless as to whether the parcels contained an illegal precursor.

85In sentencing you, I have factored in that you were only 23 years old when you committed these offences, and you were apparently lacking in maturity.  I was told that you were somewhat naïve, and taking directions from others.  I accept that you were taking directions from others but you were trusted by these others to carry the directions out, and you were not so naïve that you were prepared to collect or deliver the parcels yourself

86I was told that you were promised $3,000 for the first consignment collection and delivery but that you were prepared to pay the lion's share of this to Mr El Assaad.  There is some reference to the sum that he was to be paid in the materials.  While Mr El Assaad decided not to become further involved, you did not, hence the second occasion of importation.  I am unable to make a finding as to how much you stood to gain overall, but certainly you were motivated by financial gain in undertaking this offending.

87You entered a plea of guilty to the rolled-up charge at a stage when the matter was listed for trial, but in circumstances where there was no contested committal hearing.  Also, the trial indictment was not in such favourable terms as the plea indictment, although I am unaware as to the timing of your preparedness to plead guilty to any wrongdoing.  Although your plea of guilty was not entered at the earliest stage, I allow for a fairly significant discount in the sentence that you would otherwise receive in view of the fact that there was no committal hearing so the witnesses were saved the time and trouble of giving evidence at this proceeding, and ultimately, at trial. Further, you saved the community the time and expense of contested proceedings.  

88I make a further allowance in your favour for your preparedness to plead guilty during the COVID-19 pandemic which has assisted in relieving the pressure on the Court system.  As was stated in Worboyes v The Queen [2021] VSCA 169 at [35]:

89"We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence."

90Your Counsel submitted that you are remorseful for your offending, pointing to your preparedness to plead guilty, and your expressions of remorse to
Mr Cummins, psychologist, and also in a letter to me.  Your sister has also written a letter to me, telling me about your remorse as well.  On the other hand, you were not prepared to plead guilty until the matter was to proceed as a trial.  In the end, I accept that you are sorry for what you have done insofar as it affects you and has impacted on you and your family.  However, you have a way to go in terms of your level of insight into the seriousness of your offending and the potential that your actions had to impact on others in our community. Having said all this, I have read your letter which indicates that you are developing insight, which is a good thing.

91There has been significant delay in this matter.  During that delay of some three years, you have been in custody which is especially harsh for a young man who has been in gaol for the first time.  You have had the anxiety of these charges hanging over you for approximately three years.  During that period, you have done all that you can to rehabilitate.  There have been no issues with your conduct whilst on remand.

92I understand that initially, gaol was particularly difficult, and you suffered from symptoms of anxiety, needing attention from the psychiatric nurse.  You found gaol a most frightening environment, due to the behaviour of other prisoners toward you.  However, over time these issues have resolved.  You have now been placed in a cottage environment where you can make your own meals and have a level of autonomy.  You work as a cleaner in the prison officers’ office which is a trusted position.  You cook for the other seven prisoners in the cottage and have grown to enjoy cooking.  You are now studying English and in your letter you have spoken of your concentration on health and physical fitness to the point where you now want to work in the fitness industry when you are released.

93You are able to speak and understand English but you have been largely isolated from visitors as these dropped off at an early stage insofar as your former girlfriend was concerned, and your parents visited you in early 2019 when there was a bail application, which was refused.  You have experienced a number of the restrictions that have been put in place due to COVID-19 and you also have the anxiety of matters hanging over your head for a lengthy period as well as the prospect of being sent back to Hong Kong at the end of your sentence.  As your Counsel said, you were 15 when you came to live in Australia and you had hoped to be able to make a life here, however you will be returning to a rather different place to the one you left.  Having said this, your parents await you in Hong Kong and although they are ageing, you are not returning to a completely foreign environment.  Also, your life in Australia became one of a virtual world largely rather than engaging in study or doing a great deal to cement your prospects here.

94However, I make an allowance for the various hardships to which I have previously referred, including those related to your probable deportation.

95In all of the relevant circumstances of your case, I find that you have very good prospects of rehabilitation and I need only place minimal weight on specific deterrence and protection of the community.  As you are still a relatively young man, I must do what I can to maximise your rehabilitation, whilst not forsaking the weight must attach to other relevant sentencing factors in your case.  There is nothing to ameliorate the weight which I would otherwise attach to general deterrence, strong weight must attach to that sentencing principle in your case.

96I now turn to you, Mr El Assaad.

97You were 27 when you committed the offence for which I now sentence you and you have just turned 31.

98In relation to your explanation for offending, I have referred to this in part previously.  However, I was told by your counsel that from a very early stage in the chat with Mr Leung, when he asked you to collect a parcel for him, your wife was telling you which questions to ask.  At the plea hearing Ms Poole said she would have to clarify with you as to whether it was before or after the meeting at Box Hill, but she said that your partner told you not to be involved and that you listened to her, saying that you would not do the job.  I was told that in your mind you gave the job to Mr Hanci, but that Mr Hanci was unable to collect the parcel as he could not drive – his licence had been suspended and his car had been impounded.  Ms Poole referred to your record of interview, where you said that Mr Hanci then “guilted” you into driving him to the post office.  However, it is accepted that in doing so you assisted Mr Hanci, and therefore the plea of guilty.

99It was submitted by your counsel that you did not take the lion’s share of what was paid.  In your evidence before me you said that you received only $335 or $375, however in SMS messages between you and Mr Hanci on 6 April 2018, it appears that you were supposed to receive $1,200 and that Mr Hanci was to receive $1,250.  Even if you were not ultimately paid what you were promised, it was clear to me that you were motivated by the prospect of financial reward and you were prepared to remain involved in the collection of the first parcel, albeit at a distance.  In particular, the communications between you and Mr Leung at the time of the offending bear this out.

100I was told that you have a close and very supportive family.  You were raised by your mother, who is a migration agent.  She re-partnered when you were 13 years old, and her partner provided a character reference in support of you, as did your mother. 

101You have two siblings, a brother and a sister.  You are close to your brother and rarely see your sister.

102Your father lives in Lebanon.  He left the family when your mother was pregnant with you.  I understand you tried to reach out to him a few years ago, however he was not at all welcoming in this regard, which was a matter of sadness for you.

103In her character reference, your mother spoke of working as a housing referral worker for a charity and seeing many children and teenagers living on the streets in poor situations.  She became overly protective of her children as a result of this, as she feared that the same might happen to each of you.  She said that in particular she was protective of you, as you were a big boy, and because of this you were bullied at school.  She said that her over-protective approach to you and your siblings had led you to become “naïve, introverted, vulnerable and very innocent”, especially you, because of your victimisation at school. 

104In his report dated 26 June 2020, Mr Jackson, neuropsychologist, also referred to your mother as being a very dominant person in your life.  He said that you had always been very reliant on others – particularly your wife and your mother – to provide support and structure around you.  I should say that when I refer to you wife, I am referring to Ms Ferguson who is your de facto wife or partner.  In his report, that was tendered at the original plea hearing, Mr Jackson said that he was of the view that you actually needed the level of structure and support that the people provided due to your mild intellectual disability.  He said that you and your mother did not appreciate the extent of your cognitive impairments, which is a common phenomenon in situations where people had mild intellectual disabilities.

105You struggled through your education and required a teacher’s aide, even at primary school.  You attempted Year 11 at TAFE, but were unable to complete this.  However, you have completed some certificates in security work, computers and childcare as I understand it.  You managed to obtain employment and worked for several years as a driver in family day care business.  According to your partner, Ms Ferguson, your relationship with your boss was not a good one and caused a great deal of stress, which led to you gaining a good deal of weight.

106Your most recent employment was at a grocery store in 2019.  Initially you were given a role on the cash registers, but as you were unable to give the correct change, you were reallocated to being a storeman.  You were involved in a car accident that year and were unable to continue in that employment as a result.  You have not been employed since.

107You have never consumed alcohol or any other illicit substance. 

108Unfortunately you were bullied throughout your schooling because of your large size, and one of your character referees speaks of you crying because of this.  You would take things to school in order to bribe students to be your friend, however you experienced a lonely life at school. I understand that you were also sexually assaulted when you were a child by a neighbour.

109You have had a history of being significantly overweight, which led to development of Diabetes Type 2.  I was told that you had a near-fatal asthma attack at one stage, when you weighed approximately 280 kilograms, which led you to become focused on your health.  You lost 190 kilograms without the use of any medical intervention and you have since had some surgery to remove loose skin on your body.  The surgery has left some scarring on your body.  Due to the stress of the legal proceedings, you have put on a significant amount of weight and the scars have become very painful.  I was told that you are very proud of the fact you were able to lose such a great deal of weight although, as I have said, it seems that you have put some of that back on.  I have received three character references from people at your gym.  They speak about your efforts in relation to your weight loss and continued dedication to health and fitness, which has been an inspiration to others.  I was told that you continued to attend gym, which was paid for by your mother, as this is one outlet which has been a positive factor in your life.  I would understand that you were unable to attend the gym, however, due to the lockdowns that have been in place for the most part of the last two years.

110You have been in a de facto relationship with your partner, Crysta-Mai Ferguson, for about 12 years and you have two children together.  Your daughter was aged 10 at the time of the original hearing and your son was aged seven.  Your son is severely disabled, which is verified by material tendered at the plea hearing.

111According to a letter from DPV Health, dated 18 February 2020, your son, Elijah, suffers from cerebral palsy and has high-care needs due to his significant physical disability.  The level of disability is categorised as severe and the level of care he requires within a twenty-four hour period is very high, referred to “maximum assist”.  He is mostly non-verbal and requires maximum assistance by you and your partner to communicate and to be understood by others.  He is not continent and requires full assistance in this regard.  He has a sleep disorder which causes him and his primary care givers to experience significant fatigue and healthcare issues.  He also requires maximum assistance with bathing and dressing.  Further, he requires assistance with eating due to poor oral motor skills and has a history of oral aversion. 

112According to the letter from DPV Health, you assist in the care of Elijah by providing all of his transport needs, which requires manual handling for transfers and the need to lift and transport Elijah’s equipment, such as his wheelchair and specialised stroller, as well as other pieces of equipment.  Your partner does not have a driver’s licence.

113You also help with the day-to-day care of Elijah within the home setting and help with the financial support of the family.  In this regard, I understand that upon you being assessed by Mr Jackson as having an intellectual disability, you are now receiving a Disability Support Pension.

114Elijah is wheelchair dependent and is learning how to self-propel a manual wheelchair.  When out of the wheelchair, he is able to crawl to where he wants to go where there are single-level areas.  As at the date of the letter to which I have referred, you were residing in multilevel accommodation, and this meant that areas of your house were not wheelchair accessible and Elijah needed to be lifted and carried in and out of the house and to be lifted between levels within the house.  He is dependent on you and your partner to lift him safely up and down stairs, on and off seating and in and out of the bath, requiring maximum assistance for all transfers.  However, I understand that it is you who does most of the manual heavy lifting when it comes to moving your son around.  I understand that these difficulties in your rental accommodation persist which involves you having to move him in and out of the house and onto various levels of the house.

115I also understand that the care that you and your partner give to Elijah is exhausting and that both of you are constantly sleep deprived and that that was the situation as at the time of your offending.

116I have also received a letter from NDIS approving a plan for Elijah’s support, dated 28 October 2020. 

117It was submitted on your behalf that, if you were to be imprisoned, your family would suffer exceptional hardship because of the needs of your child, Elijah and the burden of his care upon, effectively, your partner.  The prosecution accepted that exceptional hardship was made out.  In view of the material before me and the prosecution’s concession, I have no difficulty in accepting that exceptional hardship has been made out.

118Further, if you were to be imprisoned, you would experience a harsh form of imprisonment due to your concern about your family in your absence.  Any time served in a prison would be very difficult for you as this would be your first time in jail, and you would be serving a term of imprisonment during COVID-19 restrictions, making your incarceration even more harsh than it would otherwise be. 

119You have no prior or subsequent convictions or findings of guilt. Taking this into account and the character material tendered in your case, I accept that you are of otherwise good character, and that a strong protective factor in your case is the level of support that you have from your family, albeit that it was apparently insufficiently protective to prevent you from offending on the occasion for which I now sentence you. 

120Your counsel submitted that your primary focus was caring for your family and that your only recreational activities presently, and at the time of the offending, were exercising and playing online video games, as well as looking at YouTube.

121At the original plea hearing, you gave evidence.

122Mr El Assaad, I have considered that evidence closely and I have also considered what you told Mr Jackson, neuropsychologist, about committing the offence, telling him that you did not initially go through with your agreement to collect the parcel when your wife told you not to.  You told him that the “Chinese person” then told you to find someone else, so you did so.  This led Mr Jackson to the conclusion that you “just basically did what people asked [you] to do”.  However, as the learned prosecutor Mr Saunders pointed out, this is in contrast to what you said in the chatlog – everything in the chatlog indicates that you were willing to assist in collecting the parcel, however you recruited Mr Hanci to do this in order to distance yourself somewhat from the offending.  Indeed, at one point in your evidence before me, you said that you did not like driving into the city, which Mr Hanci knew.  You said,

“And because he had no car, he said, ‘Ah, I’ll go with you.  I’ve got (indistinct) don’t worry.  I’ll make you calm.  I’ll keep you calm’  I said - I even offered to let him take the car because I didn’t want to drive.  But then he - I just said, ‘All right, I’ll take you’ because he made me feel bad.” (T89-90)

123When I sought to confirm with you that it was Mr Hanci who said he would go with you, you agreed and said “Yeah, like instead of going himself in the car, he said, ‘I’ll take - I’ll go with you to make you calm.’”  You said you did not drive in the city because of your anxiety and you could not understand some of the street signs.

124A matter of some contention in your case is the extent to which, if any, your intellectual disability or any other impairment of mental function impacted on your moral culpability and the relevance of your impairment of mental functioning to other sentencing considerations.

125It is accepted by the prosecution, and I also accept, you have a mild intellectual disability. This was first diagnosed by neuropsychologist, Martin Jackson, in June 2020, and as a result of this, you are now in receipt of a Disability Support Pension.

126At a time when Mr Jackson had not reviewed the chatlogs, he was of the view that your:

“… mild intellectual disability with associated cognitive impairments clearly contributed to [your] offending behaviour, as did [your] psychosocial circumstances at the time.  As above, [your] mild intellectual disability with associated significant impairments in executive functions means that [you have] limited, if any, significant capacity to think outside the box.  [You are] very concrete and black and white.  [You do] not have the capacity to process or think about nuances or the way people are thinking if they do not explicitly tell [you].

[You were] under a considerable degree of stress at the time of the offending, including significant financial distress. Whilst $1,000 to pick up a parcel seemed to [you] an ideal situation to help relieve [your] financial stress, it is noted that [you] did not actually go through with it initially when [your] wife told [you] not to. Again, this shows that [you] basically [do] what people tell [you] what to do. However, the Chinese person then told [you] to find someone else to do it, so [you] did and when that person asked [you] to help him, [you] did that also. [You] just basically [do] what people [ask you] to do.”

127After being provided with the chatlogs, Mr Jackson provided a very brief addendum report which indicated that his opinion had not changed, although I understand that he may have been more expansive about this at the change of plea hearing which was conducted before another judge some time ago.  I do not have a full transcript from that hearing, although an excerpt was referred to by the learned prosecutor in written submissions just yesterday.

128Dr Danny Sullivan, forensic psychologist, was engaged by the prosecution, and although the diagnosis of mild intellectual disability was accepted, Dr Sullivan was of the view that at the time of the offending there was no impairment of mental function from which you were suffering which contributed to the offending.  In particular, Dr Sullivan focused on the chatlog and your questioning of Mr Leung as to whether there was a risk of going to gaol or getting caught.  You go on to say that you assumed this, otherwise why would Mr Leung not do the job himself.  Dr Sullivan said he considered, from the provided materials, that you were:

“… able to reason at a basic level about the potential illegality of the matter and also accept that this was potentially the case and that [you] should not ask further details. On the basis of the chat, I would disagree with the conclusions reached by Mr Jackson, who it does not appear was provided with this information. I suspect that
Mr Jackson might have not expressed this view if provided with those materials.”

129At the original plea hearing, I indicated that if Verdins were to be made out in terms of Limbs 1 to 4, I would need further evidence in this regard in view of the conflicting expert opinion, and also as I was concerned that your account concerning your involvement in the offending had not been entirely consistent as between what you had told police, what you told Mr Jackson and the evidence that you gave before me.  I was also concerned that some of the material before me, or in fact the material before me largely, was in the context of a change of plea application and the question of whether you were mentally impaired at the relevant time or had fitness issues. 

130I endeavoured to obtain an independent expert report, however it appeared that the delay for this would be such that a quicker way would be to obtain addendum reports from Mr Jackson and Dr Sullivan.  In the end, however, what occurred was that I obtained the addendum reports from each of these experts, as well as an independent Forensicare report.

131In his further reports, Mr Jackson maintained his view, having ultimately considered the further materials provided to him, including your evidence before me.  He referred to the fact that he had previously given evidence in a change of plea hearing, however as I have said, I was not provided with a full transcript relating to this proceeding.  I can only glean that he is not concerned about the passage which Dr Sullivan was concerned about, as he accepts that your wife was dictating to you what to say to Mr Leung during the course of the chat.  This appears to be so from an extract of transcript from the change of plea proceedings referred to by the Crown in their most recent written submissions. In answer to a question from His Honour Judge Ryan, as he then was, Mr Jackson said that if your partner had not been telling you what to say to Mr Leung in those chatlogs then that would be ‘very damning’.

132According to your evidence before me, in a matter of seconds, your wife was able to tell you what to say and you were able to transcribe it.  You did say that you were very quick at typing.  However, in your second record of interview, although you say a great deal to the police, at no stage do you say that your partner was dictating to you what to say in that chat.  Indeed, you tell police the following (p347 deps/p7) of the second ROI transcript.  I give those two references because there are a number of different numbers on each page of the material, so it is a little confusing.  However, at one stage in that interview at the page references I have indicated, you said to the police:

'He offered me the same job that Alex was offered in regards to picking up, getting a package, like doing - going to the post office at his address and getting paid this amount of money and when the - when I asked him what was inside the questions I answered earlier, he - and he wouldn't give me an answer, I said "no, I don't want to do it.  I don't feel comfortable because it sounds so fucking shady."  I go because, how obvious can you be and I said "look, I don't want to do it."  I go, I appreciate the offer and, you know, you want to help and I appreciate that and he goes "well, look, well I just' - you know, he had apparently other people are willing to take the job but because I'd turned him down he goes "oh I know where you live and stuff" and he goes "you can't fuck - you fuck me around now" because, you know, I turned him down.

He goes "you have to find someone that you know that will be interested in doing this job."  He goes, "I don't care who, just find someone that is an idiot and do the job."  Then I was thinking to myself, I go "fuck, what do I do?"  So who - I don't know anyone else that has a similar situation to me then Alex because he's been harassing me for money saying "please, you know, you got to pay for my car registration, pay for this, pay for that."'

133You continued on saying:

'And then I contacted Alex and I explained to Alex the job that the guy offered me and I told - I made full clear "Alex, this is what the job is."  I go "it sounds so suspicious."  I go "yeah, the money sounds good and we are very desperate, you know, I'm unemployed, I'm fucking living in my mum's fucking room on the floor with my children and my wife - or partner - and dude, I can't even make - I can't bring food on the table and I have to beg my mumma for scum."  So the money was very tempting but I still turned it down because I just didn't want to do anything that was stupid and then I told Alex the same thing and obviously because he's greedy he knew, like I told him earlier, this is the situation, this is what you have to do in full detail and obviously Alex accepted.'        

134In his further report, after having met with you and considered the further materials provided, including the video and transcript of your cross-examination, Dr Sullivan maintained his view that there was no impairment of mental functioning operating on you at the time, which contributed to your offending.  In his further report, he said:

[35]     It is relevant that Mr El Asaad had a full scale IQ of 67 when assessed by Mr M Jackson in 2020. There was a scatter of scores, with several domains being assessed in the low average to average range, with others in the impaired range. It was also noted that he exhibited features of anxiety. Mr Jackson considered that Mr El Assaad presented a valid profile and provided adequate effort; he noted some executive deficits although no impairment of impulse control. 

[36]     I am satisfied that Mr El Asaad would meet diagnostic criteria for mild intellectual disability. This reflects his adaptive functioning and notes a range of cognitive impairments evident since early childhood. 

[37]     The alternative is that his intellectual functioning is in the borderline range, with a significant spread of abilities, and his functioning is impacted by the effects of anxiety and mood disorder. During periods of time when Mr El Asaad is significantly anxious or depressed, his performance on cognitive tasks will be negatively impacted. This is apparent in Mr El Asaad frequently reporting that he feels overwhelmed, that his thoughts are racing or that he cannot understand. Thus, although he might be in the overall borderline range of functioning at his best, for much of the time the added impact of anxiety and/or depression reduces his actual level of functioning so that it is in the range of mild intellectual disability. 

[38]     My opinion about his level of adaptive functioning is not inconsistent with his presentation while giving evidence and being cross-examined in Court.

[39]     On assessment, and noting the clinical assessments of Mr Jackson and Ms Crole, I also consider that Mr El Asaad would satisfy criteria for generalised anxiety disorder. Although he also reports past panic attacks, there is no recent history of these.

[40]     Mr El Asaad would also meet criteria for a diagnosis of recurrent depressive disorder, currently mild-moderate in severity. This is manifest in sleep disturbance, overeating, negative cognitions, hopelessness and helplessness. His depression is markedly impacted by current life stressors, in particular his pending sentencing, and also concern that he will be unable to help his family if imprisoned.

[41]     Although it is not clear that Mr El Asaad meets a formal diagnosis of personality disorder, his cossetted upbringing and dependence on his partner for organisation and management of life domains suggests prominent dependent personality traits. These are in part adaptive, in that they foster the support from others which compensates for some of his difficulties. 

[42]     I am not satisfied that Mr El Asaad meets criteria for attention deficit hyperactivity disorder. I note that neuropsychological testing did not demonstrate results consistent with this diagnosis. I have not viewed any collateral information related to the recent diagnosis, nor reviewed school records. 

[43]     There is no indication of psychotic illness or of substance use disorder. 

[44]     I have considered the potential that intellectual disability or mental disorder may have been causally associated with the offending. My opinion is  unchanged from my formulation of these issues in the previous report, which I reproduce here:

[25] Mr El Assaad’s cognitive limitations have been noted to affect his functioning at school, requiring an integration aide; possibly affecting his emotional regulation; diminishing his prospects of employment; and increasing his reliance on others. Materials provided by family members in affidavits, and in collateral information provided to Mr Jackson and Ms Crole, note reduced capacity for adaptive functioning in a range of domestic tasks.

(a)    Mr Jackson notes that on neuropsychological testing there is no disorder of impulse control manifest in the tests. The materials do not suggest disinhibition.

(b)    Intellectual disability is likely to impact at least mildly on his ability to think clearly and make reasoned decisions. The level of sophistication of his thinking, his ability to think through a range of different consequences and the capacity to enact those choices may be reduced. Furthermore, a significant comorbid mood disorder may also impact upon those choices, although it is not clear that this was of significant concern at the time of the alleged offending.

(c)    Intellectual disability is unlikely to have caused or contributed to the offending with which he was charged. It appears that if the offences are as alleged, the motivation for assisting his acquaintance to collect the package was financial.

(d)    I do not consider that intellectual disability would have affected his ability to understand the wrongfulness of his actions at a fundamental level.

[45]        …….having reviewed Mr El Asaad, I do not consider that depressive disorder or generalised anxiety disorder were relevant to the offending. It is however possible that dependent personality traits influenced his desire to please others, or reduced his inclination to refuse to participate. However I do not consider that this factor contributed significantly to the offending.

Independent Report

135Dr Elena Bhattacharya, Consultant Forensic psychiatrist., who met with you for 90 minutes and who reviewed all relevant material including the available reports at that time from Mr Jackson and Dr Sullivan, save for their most recent reports, said the following:

“It is unlikely that his intellectual disability would have prevented him from being able to understand the illegality and consequences of his actions and this is demonstrated from his chatlog which was provided.  However, his psychosocial circumstances and mental state may have caused him to act in a way that he would not have done otherwise.  His limited understanding of complex situations, as well as what has been described as his “gullibility” or over-trusting of people, may have contributed to his decision making at the time.  This may be related to his intellectual disability.  Moreover, increased stress and anxiety may have compounded the deficits he experienced as a result of his intellectual disability. ”

136Dr Bhattacharya went onto say:

“I address the Verdins principles R v Verdins & Ors (2007) 16 VR 269. With regards to moral culpability, Mr El Assaad described that he was going through a particularly stressful period prior to the offence. He had lost his job, lost his housing and was living in his mother’s house with his family in a small room where there were other residents present. He said his marriage was under strain and his severely disabled son was sleeping poorly through the night. This in turn created tensions with the rest of the household. He said that financially he was struggling and all of this led to his anxiety and depression worsening at the time. I do not have any further corroborating information regarding this. ”

137It seems to me that Dr Bhattacharya is saying that it may be that a combination of factors, including your stressful circumstances, depression and anxiety, and vulnerability to influence from others due to your intellectual disability may have impacted on your judgement and decision making at the  time of the offending.

138As previously referred to, you suffer from depression and anxiety, which is also attested to by your general practitioner, Dr Moustafa, in a letter tendered to the Court dated 21 May 2021.  According to Dr Moustafa, you were receiving psychiatric treatment from Dr Samir Ibrahim for many years for depression.  He said that you had a manifestation of ADHD and you were referred to Professor Bruce Singh, psychiatrist, at the Melbourne Clinic, for assessment.  You were put on Ritalin for management of ADHD and were still under his medical care. However, this diagnosis is also a matter of some contention according to some of the material to which I have referred.

139According to Dr Moustafa, your general practitioner, who has known you for some time, you are a decent, hardworking and trustworthy person, and well liked in the community.  He said you are forever helping people in need, and that any time in jail would put your family in severe difficulty.  He said that you were of a view that if you were to go to jail you would seriously contemplate suicide.  He said that you need intense psychiatric and psychological treatment.  He also said that you lacked the ability of rational thinking before making any decision.  As Dr Moustafa is a general practitioner and not a psychiatrist, I give his opinion in that regard little less weight than I would otherwise.

140Your history of depression and anxiety and present symptoms are supported by the psychiatric material before me, and although exacerbated by these legal proceedings, it appears that you have suffered from depression and anxiety for a good deal of your life.  I accept that that is the case and that those symptoms were operating at the time of your offending.

141I was told by your counsel that you no longer take medication for depression because you believe it makes you feel unwell and causes you to put on weight.

142Mr El Assaad, having considered all of the evidence before me, I am not satisfied on the balance of probabilities that your wife was dictating your replies on the chatlog when you were conversing with Mr Leung.  Whilst it might be that your wife told you not to get involved at some point, I am satisfied on the balance of probabilities, beyond reasonable doubt if needs be, that you were the one who was coming up with the various responses and questions in that chatlog.  Further, contrary to your evidence before me and what you have said to Mr Jackson, I do not accept that you were threatened to find someone else to collect the first parcel after you refused to do so.  It is clear from the chatlogs that you were suspicious and concerned about the illegality of what Mr Leung had asked you to do, and that it was your idea to involve Mr Hanci.  It was you who wanted to meet with Mr Leung face to face, which led to the meeting in the Box Hill carpark, and you reported back to him in respect of the progress of the parcel collection, having driven Mr Hanci to collect it.

143Perhaps it is the case that after the first parcel was delivered that you were subjected to pressure to find someone else to take delivery of the second parcel and to post it, this certainly seemed to be your concern when you spoke to the police but, in respect of the first parcel, it seems to me that you have given a confabulated account to me and to Mr Jackson and to the police for that matter, in respect of your willingness to be involved in the offending from the outset.  

144I must say that I found your capacity to deal with cross-examination as being rather sophisticated.  You were eloquent, but beyond this, you had an ability to use your rather sophisticated vocabulary appropriately and to bring to your answers a level of analysis at times that I found surprising in view of your diagnosed intellectual disability.  However, I accept that your eloquence can mask your intellectual disability, as the expert material suggests.  I also note that at times you appeared to be confused and unresponsive.

145In the end, although I do not accept some aspects of your evidence before me, having considered the relevant expert material and other relevant evidence, I do accept that at the time of the offending your impairment of mental functioning, being your mild intellectual disability and associated cognitive deficits in combination with symptoms of depression and anxiety, impacted somewhat on your ability to make calm and rational decisions and appropriate judgements.  I make a less than moderate reduction in respect of your moral culpability and a similar reduction on the weight that would otherwise attach to general and specific deterrence. Without such reductions, strong weight would attach to general deterrence as this is a primary sentencing principle, so this weight is reduced to a less than moderate extent.  In view of your otherwise good character, remorse, and strong family support, very little weight would otherwise attach to specific deterrence but this is further reduced to a less than moderate extent.

146To some extent, your impairment of mental function is also relevant to the type of disposition you ought undergo.

147In all of the relevant circumstances, I find that your prospects of rehabilitation are very good.  You have learned your lesson and I am fairly confident that you will not reoffend.

148I place minimal weight on protection of the community.

149In view of the evidence before me in respect of your intellectual disability, anxiety and depression, as well as your physical health issues with obesity and type 2 diabetes, I find that your time in custody would be harsher than for someone without these ailments.  You would be quite vulnerable in a prison setting.  In view of your depression which has manifested in suicidal thoughts and immense anxiety in respect of these proceedings and the prospect of going to gaol, I also find that there is a significant risk that your mental state may well further decline if you are sent to gaol.

150In sentencing you, I allow for a substantial discount in the sentence you would otherwise receive because of your preparedness to plead guilty, which has demonstrated a willingness to facilitate the course of justice and a preparedness to take responsibility for your offending.  Although the plea of guilty was effectively challenged in an application to change your plea, this was for legitimate reasons and does not tell against you.  Indeed, you made a number of admissions in your record of interview, which indicates a preparedness to facilitate justice at an early stage.  Further, you were prepared to assist police in providing information in respect of the second parcel that was to be delivered at a time when the chatlogs were not available to them.  In pleading guilty, you have saved the witnesses the time and trouble of giving evidence, and you have saved the community the time and expense of contested proceedings.  Further, I accept that you are remorseful for your actions, especially insofar as they impact on you and yours.  I also accept that you appreciate how serious your offending behaviour has been, although you need to learn a good deal more about how it had the potential to negatively impact on others in our community. 

151In keeping with Worboyes to which I have previously referred, I make an extra allowance in your favour for the fact that you were prepared to plead guilty to the offence during the COVID-19 pandemic, which has served to help reduce the backlog of cases coming before the courts and in your case indicates a preparedness to face the consequences of your actions, despite the prospect of harsher conditions in gaol during this period.  In your case I have taken note and applied the matters set out in Worboyes to which I have previously referred.

152The significant delay in this matter has led to a good deal of anxiety, as the uncertainty of your fate has been hanging over your head for a good deal of time.  Also, in the intervening period, you have shown that you are able to remain offence free so as to strengthen your path of rehabilitation.

153I have also factored in that, of your own volition, you decided not to continue offending, as opposed to Mr Leung, who kept going in this regard.

154In sentencing each of you, I have considered the comparative table and current sentencing practice, which is but one factor in determining an appropriate sentence in each of your cases.  It ought also be borne in mind that you are each entitled to an extra allowance due to the case of Worboyes, unlike most of the other cases to which I have been referred.

155In each of your cases, the prosecution submits that a term of immediate imprisonment is warranted, which involves a head sentence and a non-parole period.

156In your case, Mr Leung, you accept that this is your fate.  However, in your case, Mr El Assaad, it is submitted that a community correction order involving a justice plan ought be imposed.  Alternatively, a recognisance release order involving no immediate period of imprisonment is warranted.

157The issue of parity is not really apt in your respective situations for the following reasons.

(a)your offending, Mr Leung, is more extensive and your role is more serious;

(b)you, Mr El Assaad, decided to end your offending, and you did what you could to assist police.  This contrasts with your situation, Mr Leung;

(c)you, Mr El Assaad, have the benefit of establishing exceptional hardship upon your family if you were to be imprisoned as well as Verdins considerations to which I have previously referred.

158You, Mr Leung, were a good deal younger than Mr El Assaad, however in view of Mr El Assaad’s intellectual disability and other mental health issues, age is not really a relevant comparator.

159I had you, Mr El Assaad, assessed for a community correction order and in respect of a justice plan, without any indication as to what I might do in your case, but with the benefit of that information, pending receipt of further material concerning your mental state, and the relevance of this in respect of relevant sentencing considerations to which I have previously referred.

160I have received submissions on your behalf, Mr El Assaad, in respect of the availability of a community correction order or recognisance release order with a justice plan attached, and of course I received submissions from the Crown in that regard. 

161The Crown’s position is that such dispositions are not available under the Commonwealth regime, although they acknowledge that judges of this court have found otherwise and imposed community correction orders with justice plans attached which have not been appealed by the Commonwealth.  In essence, the Commonwealth Crown says that the Commonwealth sentencing regime exhaustively deals with dispositions in relation to intellectually disabled offenders or those suffering from a mental illness and a community correction order or recognisance release order with a justice plan attached as such, are not included, nor is there any room for these to be.  However, the Crown acknowledges that a recognisance release order with elements of a justice plan can be imposed.

162The Crown maintains its primary submission that a head sentence with a non-parole period is warranted in your case, Mr El Assaad, even if I were to find in your favour in respect of Verdins Limbs 1 to 6 and even allowing for exceptional hardship and Worboyes considerations, as well as the level of your co-operation with the police in respect of the second consignment.

163Defence submit that a community correction order with a justice plan is appropriate and available, citing the examples where such orders have been made in this court and have not been appealed against by the Crown, and submitting that the Commonwealth regime is not exhaustive and does allow for such a disposition.

164As I have said, the secondary submission made by defence on behalf of you, Mr El Assaad, is that a recognisance release order with a justice plan attached is warranted on the basis that you would not be required to serve any term of imprisonment immediately.

165I have come to the conclusion, although I should tell you, only just, that in view of all relevant matters in your case, Mr El Assaad, and in particular, the exceptional hardship to your family, I will not require you to serve an immediate term of imprisonment; but nothing short of a disposition which involves a term of  imprisonment would do justice to all relevant sentencing considerations in your case.  I propose to release you on a recognisance release order, with appropriate elements of a community correction order and justice plan put in place as conditions of that order.

166Mr Leung, a sentence of imprisonment is warranted in your case, and one which involves a head sentence and a non-parole period, however I have done what I can to keep these periods to a minimum in view of the matters in mitigation in your case.

167Mr Leung, you are convicted of the offence and you are sentenced to a period of six years’ imprisonment and I direct that you serve three years, six months before becoming eligible for parole.  This sentence is to commence today.

168You have already served 1099 days by way of pre-sentence detention.

169If not for your pleas of guilty, I would have sentenced you to eight years imprisonment with a non-parole period of five years to commence today.

170Mr El Assaad, you are convicted of the offence.  You are sentenced to two years' imprisonment to commence today but you are to be released forthwith upon you giving security by recognisance in the sum of $3,000 to comply with the following conditions:

(1)That you are to be of good behaviour for three years;

(2)That you are to be under the supervision of the Deputy Commissioner, Community Correctional Services or his or her nominee, for the period of the order, being three years;

(3)That you report to the Broadmeadows Community Correctional Services  at 2 pm tomorrow.  I would say that this would be reporting by telephone I want you to telephone them today and find out whether that is reporting by attending in person or by making a phone call at 2 pm tomorrow;  

(4)That you report to and receive visits from a Community Corrections officer or officers;

(5)That you notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change;

(6)That you are not to leave Victoria except with the permission of an officer at the specified Community Corrections Centre; and

(7)That you are to obey all lawful instructions and directions of Community Corrections officers.

(8)That you participate in the referral process for specific treatment programs offered through the Disability Forensic Assessment and Treatment Service (DFATS) and engage in offence specific treatment as recommended by DFATS or another appropriate service as directed by the Department;

(9)That you engage with treatment and support services identified by the  Disability Justice Coordinator from the Department of Families, Fairness and Housing;

(10)That you engage in counselling as directed by your Disability Justice Coordinator to address your mental health concerns.  

171I have made this order because you have been charged with the federal offence of attempting to import a commercial quantity of a border controlled precursor contrary to sub-sections 11.1(1) and 307.11(1) of the Criminal Code (Cth) but I have decided that you are to be released forthwith if you comply with the conditions of this order.

172This means that you have been sentenced to a term of two years' imprisonment but you will not have to serve that term of imprisonment unless you commit another offence, including breaching any condition of this order within the next three years.  If you commit a criminal offence, including breaching any condition of this order within the next three years from today, then unless you can give a justifiable excuse you will be required to serve three years' imprisonment and you may also be required to pay the sum of $3,000.

173I have imposed this sentence because of the seriousness of the offence that you have committed and to give appropriate weight to all relevant sentencing principles in this case.

174I am required to tell you that the recognisance release order can be varied or discharged under s20AA of the Crimes Act 1914 (Cth) upon application by you or a person described in s20AA(1) of the Act.

175If not for your plea of guilty, I would have sentenced you to a period of immediate imprisonment of five years with a non-parole period of three years.

176Is there anything arising?

177MS STEVIC:  Just one matter, Your Honour, and that is that Mr Hanci was acquitted by a jury on 24 June of this year.

178HER HONOUR:  Right.  So was I was advised about that, was I?

179MS STEVIC:  I don't think Your Honour was advised of that.

180HER HONOUR:  It would have been helpful.

181MS STEVIC:  Our apologies for that, Your Honour.

182HER HONOUR:  All right then, well I will indicate that.  Thank you for indicating that to me now.  I will amend my sentencing - or add that to my sentencing reasons.  Anything arising, Ms Poole?

183MS POOLE:  No, Your Honour.

184HER HONOUR:  All right, now we will provide the document to the parties, that is to Ms Poole and to you, Ms Stevic.  I know in the past you have been very helpful with these documents, recognisance release orders but if you could have a look at that before I ask that Ms Poole go and have Mr El Assaad sign that document.

185MS STEVIC:  Yes, Your Honour.

186HER HONOUR:  I just have to wait until the document has been signed by Mr El Assaad in relation to his matter.  It might be that in the meantime if it is able to be achieved that the sentence for Mr Leung can be explained by his counsel with the use of the interpreter.  I am not sure if that can happen.

187INTERPRETER:  Sorry, I was talking to (indistinct) that's all.  She just wanted to clarify a couple of things.

188HER HONOUR:  Yes, I just said - could I just have a word with defence counsel please, for Mr Leung.  Is it - - -

189MS SKABURKIS:  Yes, Your Honour, Ms Skaburkis.

190HER HONOUR:  Yes.  Look, I am just wondering, did you wish to just have a word with your client at this time about what the sentence involves for him.

191MS SKABURKIS:  Yes, we'll be able to contact Mr Leung later on and have a proper conference with him.  I don't think that an interpreter will be required for that.

192HER HONOUR:  Right, thank you very much for that, Ms Skaburkis.

193MS SKABURKIS:  Thank you, Your Honour.

194HER HONOUR:  All right.  Yes, thank you.

195MS STEVIC:  No issues with the recognisance release order.

196HER HONOUR:  All right.  Yes, thank you.

197MS POOLE:  If I may I approach Mr El Assaad.

198HER HONOUR:  Yes, if you'd like to approach your client.

199MS POOLE:  Thank you, Your Honour.

200HER HONOUR:  I think my associate also has to be within cooee.  We might need to use the hand sanitiser too please.  Mr Leung, can you please say something so I can see you back on screen.

201OFFENDER LEUNG:  Hello.

202HER HONOUR:  No, you do not talk.  Thank you, Mr Leung, could you just say something.

203OFFENDER LEUNG:  Something, hello, hello, can you hear me?

204HER HONOUR:  Thanks, yes.

205OFFENDER LEUNG:  All right, thank you.

206HER HONOUR:  Sorry, Madam Interpreter, I do not know if you are saying something to bring the screen back to you, I just wanted a view of Mr Leung, that is why I keep asking him to say something.  So could you just remain quiet for a moment.  Mr Leung, could you say something again please.

207MS SKABURKIS:  Your Honour, it would seem as though Mr Leung has dropped out of the link.

208HER HONOUR:  Right.   Ms Skaburkis, I had completed sentencing Mr Leung, are you satisfied with that or do you require us to try and get him back on the link?

209MS SKABURKIS:  Your Honour, I'm satisfied with that.  I understand that there's nothing further that needs to be done today for which Mr Leung - there he is.

210OFFENDER LEUNG:  Here.  It just switched off for some reason.

211HER HONOUR:  All right, thanks, Mr Leung, we're nearly finished and we are going to just let you go anyway but seeing you are back here, I will just adjourn the court in a moment once I have signed documents in Mr El Assaad's case, okay?  Yes, thank you, I have now signed that recognisance release order.    

212MR POOLE:  Your Honour, can I just clarify with the $3,000 to make sure we get that right, is that to be paid in a security today or that occurs after?

213HER HONOUR:  No, no, he does not pay that at all - - -

214MS POOLE:  All right.

215HER HONOUR:  - - - unless he is ordered to do so because he - - -

216MS POOLE:  Has breached the order.

217HER HONOUR:  - - - basically commits another offence - - -

218MS POOLE:  Yes.

219HER HONOUR:  - - - without giving a justifiable excuse.

220MS POOLE:  As Your Honour pleases.

221HER HONOUR:  So he is not up for that unless he mucks up basically.

222MS POOLE:  As Your Honour pleases.

223HER HONOUR:  Yes.  All right.  Yes, thank you.  Mr El Assaad, I really hope that you take advantage of this.  I really hope you take advantage of this chance because if you breach this order I will not have much problem with sending you to gaol, do you understand that?

224OFFENDER EL ASSAAD:  Yes, Your Honour.

225HER HONOUR:  Thank you.  Yes, thank you, we will now adjourn.  Thank you very much, Madam Interpreter.   

226COUNSEL:  As Your Honour pleases.

227HER HONOUR:  Thank you, counsel.

228INTERPRETER:  Thanks, Your Honour.

- - -