Director of Public Prosecutions v Louis
[2022] VCC 1785
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-01375
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTONIO LOUIS |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 October 2022 | |
DATE OF SENTENCE: | 14 October 2022 | |
CASE MAY BE CITED AS: | DPP v Louis | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1785 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Trafficking in a drug of dependence – commercial quantity – knowingly dealing with proceeds of crime – possession of a drug of dependence – possession of traffickable quantity of firearms
Cases cited: Worboyes v The Queen [2021] VSCA 169; Efkan Djemal v The Queen [2020] VSCA 25
Sentence: Convicted and sentenced to seven years’ imprisonment with a non-parole period of four years’ and six months’ imprisonment, and $1,000 fine.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Maguire (Plea) Mr H. Boyd-Wilson (Sentence) | Director of Public Prosecutions |
| For the Accused | Mr C. Mandy | Melasecca, Kelly & Zayler Criminal Lawyers |
HIS HONOUR:
1 On 10 October 2022 at the County Court in Melbourne, Antonio Louis, you pleaded guilty to the following charges on Indictment No.M12301820:
· Charge 1 - traffick in a drug of dependence in not less than a commercial quantity; it was cocaine. This charge has a maximum penalty of 25 years' imprisonment.
· Charge 2 - knowingly dealing with proceeds of crime; a total of $606,150 cash. This charge has a maximum penalty of 20 years' imprisonment.
· Charge 3 - possession of drug of dependence; which is cannabis and THC. This charge has a maximum penalty of five penalty units in the circumstances of this case.
· Charge 4 - possession of drug of dependence; 3,4-methlyenedioxy-N-methlamphetamine (“MDMA”), clonazolam and benzodiazepine or known as diazepam. This charge has a maximum penalty of one year imprisonment in the circumstances of this case.
· Charge 5 - possession of trafficable quantity of firearms. In this case it was a .32 Smith & Wesson revolver handgun and a 9-millimetre Luger STI semiautomatic handgun. This charge has a maximum penalty of 10 years' imprisonment.
2 Pursuant to s145 of the Criminal Procedure Act, you consented to three related summary charges being heard at your plea hearing. You pleaded guilty to the following related summary charges:
· Summary Charge 10 - possess a Schedule 4 poison which was codeine. This charge has a maximum penalty of 10 penalty units.
· Summary Charge 11 - possession of prohibited weapon; it was a flick knife. This charge has a maximum penalty of two years' imprisonment.
· Summary Charge 19 - possession cartridge ammunition. This charge has a maximum penalty of 40 penalty units.
3 You have admitted your prior criminal history. In the context of your offending before this court your prior criminal history is minor. On 1 October 2012 at the Melbourne Magistrates' Court you were placed on a 12-month adjourned undertaking for the charge of intentionally damaging property and an unlawful assault. I was told this was to do with a dispute with a taxi driver. Up until today you have spent 343 days as pre‑sentence detention for this offending.
The s of your offendingcircumstance
4 At the time of your offending you were 38 years old. You are now 39. The prosecutor tendered a Summary of Prosecution Opening dated 12 September 2022. The eight pages were read into the record. The summary was Exhibit “A” and is attached to these reasons for sentence.
5 On 5 November 2021, you had been residing alone in a rental property in a unit on Moore Street in Moonee Ponds. The police executed a search warrant at that premises on that day. In the course of their enquiries the police also searched and examined two vehicles that were registered in your name. A Toyota Corolla with the registration number plate BPG 334, which was parked in the basement car park of the apartment building, and a Ford Mustang, registered number plated 0000V, parked on the street outside the apartment building. The two cars were searched after further warrants were obtained.
6 The search by the police produced the following results:
In respect to Charge 1, cocaine was located as follows:
(a) there was 141.8 grams of white powder located in the kitchen pantry;
(b) there were 999.8 grams of white powder in a single package under the front seat of the Toyota Corolla;
(c) there was 79.8 grams in the hidden cavity behind the dashboard of the Toyota Corolla; and
(d) there was .3 grams in the manual of your car in the Mustang.
7 A total of 1221.7 grams of mixed cocaine or 873.5 grams of pure cocaine were found either in the premises or in the Toyota Corolla predominantly. The amount is approximately three times the commercial quantity for cocaine. This charge is a category 2 offence.
Charge 2, cash was located as follows:
(a) there were $1,300 in the bedroom wardrobe;
(b) there were $373,800 in three separate shopping bags secreted behind a cabinet above the fridge;
(c) there was $61,050 in bundles under the rear seat of the Toyota Corolla; and
(d) there was $170,000 in a hidden cavity behind the dashboard of the
Toyota Corolla.
8 A total of $606,150 was located in the apartment or the Toyota Corolla.
Charge 3, possession of cannabis and tetrahydrocannabinol (“THC”)
9 Police found .8 grams of cannabis L in a cigarette packet on the bedside table in the bedroom. The police also found a container in the lounge room in which there were 12 grams of viscous oil later analysed to be THC.
Charge 4, possession of a drug of dependence
10 The police search located the following:
(a) 1.1 grams of MDMA in a snap lock bag in the kitchen bin;
(b) two tablets, weighing .5 grams, of clonazolam in a cigarette packet on a bedside table; and
(c) 20 Valium tablets, or 2 grams of Diazepam, in a bedroom wardrobe.
11 The drugs found in respect of Charges 3 and 4 on the indictment are not alleged to be for the purposes of trafficking by you.
Charge 5, possession of trafficable quantity of firearms
12 A search of the Toyota Corolla at Victoria Police Forensic Services Department located the following firearms in a hidden cavity behind the dashboard of the Toyota Corolla:
(a) a loaded Smith & Wesson handgun; and
(b) a loaded semiautomatic handgun which was a 9-millimetre Luger STI.
In respect of the related summary charges the police located the following items:
·
Charge 10, medication labelled Comfarol Forte in the name of
Osama El Fak-Houri on the bedside table - that is the codeine;
· Charge 11, a flick knife in the drawer in a cabinet in the living room; and
· Charge 19, cartridge ammunition found in a hidden cavity within the Toyota Corolla.
13 The police also located four phones, a cash counting machine and keys to both the Toyota, and Mustang.
14 It is beyond doubt that the apartment and your cars were the pivot point for a substantial drug trafficking enterprise. You were the keeper of the castle. There is no direct evidence of what financial benefit you were to derive from any of this criminal activity by you.
15 You were interviewed by police and either answered 'I don't know, I don't know anything or no comment'. Your approach to the police questioning in the record of interview is an exercise of your rights. You have been in custody since 5 November 2021.
Your personal circumstances
16 You are now 39 years old. You have a limited criminal history. You were born in Baghdad, Iraq in 1983. It was the time of the Iran-Iraq war. You were one of five children. Your father worked as a cook in the military as part of his National Service. You attended school until eight years of age. You have recounted memories of bombings, causing the family to rush to bomb shelters.
17
In 1995 you moved with your family to Jordan as refugees. Your family did not have official papers, but applied for refugee visas. You lived in Jordan for a
10-year period. All members of the family, including yourself, worked any casual work to obtain money to sustain the family unit. Your father died in Jordan when you were 13 or 14 years of age.
18 In 2005 the remainder of your whole family moved to Australia. You were then 22 years old and had little or no education due to living in a war-torn country as a very young child, and followed by refugee existence in Jordan.
19 In 2007 you became an Australian citizen. Once in Australia you enrolled in an English as a second language course at TAFE. You could not complete that course, but obtained a job as a cleaner through a contact from the TAFE. You worked consistently as a cleaner for about 12 years. One of your cleaning jobs was located in Crown Casino. You started gambling. You remained in the cleaning industry until 2017.
20 In the course of your work life you began using amphetamines and cannabis in 2011. By 2013 your illicit drug use escalated to cocaine, MDMA and methylamphetamine. After you ceased regular employment as a cleaner in 2017 your drug use escalated. By the time of your arrest you were in full drug use mode.
21 Your role in this offending is as a trusted, reliable person who managed the safe house for a substantial drug trading operation. The amount of drugs, money and two loaded firearms are clear proof of the level of criminality operating from the premises where you lived.
22
Whilst you have been in custody you have undertaken the
Motivating Affect Self-Control program known as MASC. This program was commenced after an assessment by Luke Armstrong, a psychologist. His report dated 17 December 2021 is Exhibit 2. I have heard evidence from Mr Armstrong about the operation, that is, the operation and rehabilitative effect of the MASC program on drug users.
23 I have also received in Exhibit 3 three progress reports dated 18 February 2022, 12 April 2022 and 29 July 2022 from Andrea McNeil who has supervised three six-weekly phases of the MASC program with you whilst in custody. Ms McNeil assesses you have progressed to a position of genuine motivation to overcome your addiction. Mr Armstrong has diagnosed you as having a stimulant use disorder and features of Post-Traumatic-Stress Disorder (“PTSD”) with distorted grief and depressive features. You have strong family support from your mother, three brothers and younger sister. Your family members came to support you on the day of your plea hearing. I note one of your brothers, I think, is here today.
Sentencing considerations
24 The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
25 I also am required to balance the interests of the community in denouncing your criminal conduct with the interests in the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
26 I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and an examination of the statistics for the sentences at the time. I have considered the sentencing statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as, indeed, they are from one another.
27 You have pleaded guilty to these charges. Your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community. Your plea also is a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community. I accept your plea of guilty to these charges indicates and demonstrates some remorse on your part.
28 I also accept that the plea of guilty in the circumstances of the COVID-19 pandemic has substantial utilitarian value. I note that the backlog of jury trials in this State is yet to be resolved. You have not sought to delay the finalisation of this prosecution by conducting a trial on an unknown and future date. In addition, it is relevant to take into account the impact of lockdown restrictions that have been imposed as a result of the COVID-19 pandemic that have been applicable to you and all other prisoners in the State of Victoria. As a result of those restrictions you have not had the opportunity for contact visits with your family. There is also the risk that you will be spending some time in the cells alone by way of lockdown which is not ordinarily the case in ordinary prison time.
29 The future restrictions will make your time in custody more onerous than for the ordinary prison conditions. Your imprisonment and the COVID-19 restrictions also means that you have a limited opportunity to participate in courses during your imprisonment which will limit in part your rehabilitation in the early stages of your sentence.
30
I am also required to take into account the pronouncement of the
Court of Appeal in Worboyes v The Queen [2021] VSCA 169 and I will quote paragraph 39 being the relevant part:
'For these reasons we consider that, all other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any "discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.'
31 That consideration is often referred to as the Worboyes discount for pleading guilty whilst the courts are still under the effects of the COVID-19 pandemic and restrictions since March of 2020.
32 Your offending is serious. You were an important and integral person in the drug trafficking enterprise. You were the trusted person with the drugs, the money and the guns. You lived at the epicentre of this criminal activity. The indicators of the seriousness of the offending are:
(a) the total amount of cocaine is approximately three times the commercial quantity set by Parliament for that drug;
(b) the amount of cash of 600,000 is a very large sum and indicative of the scale of the drug trafficking operation in this case;
(c) the prosecution accepts that there are other persons in the syndicate that have had and did have access to your vehicle in a car park a day before your arrest;
(d) the prosecution also accepts that you may not have been aware of the precise amounts of money or drugs stored in your residence or in your Toyota vehicle;
(e) you had two loaded handguns in the hidden cavity of your Toyota vehicle. The DNA from one of the handguns was not your DNA;
(f) the guns were in your car and firearms are regularly part and parcel of drug trafficking activities;
(g) other items in the residence, including small amounts of drugs other than cocaine, a money counting machine and multiple mobile phones, are indicators of the scale of the drug trafficking operation;
(h) the level of your personal enrichment from your criminality is difficult to accurately assess. You own two motor vehicles and lived alone in a rented premises where you lived.
33 The seriousness of your offending is clearly set out by Parliament in the maximum penalties for charges of drug trafficking, proceeds of crime and the firearms charges. In respect of the firearms charge, I will note that Parliament reduced the number of firearms from three to two for a trafficable charge. That amendment was made on 9 May 2018. The Court of Appeal in the case of Efkan Djemal v The Queen [2020] VSCA 25 stated as follows:
'The maximum term of imprisonment for possession of a trafficable quantity of unregistered firearms is 10 years' imprisonment. As explained in DPP v Fleiner, the offence of possession of a trafficable quantity of unregistered firearms is based upon s7C of the Firearms Act. The purpose of that Act is to give effect to the principle that the possession of firearms is conditional on the need to ensure public safety and peace by establishing appropriate systems of licensing them, and for the regulation of their possession, carriage and use, for dealing in them and acquiring and disposing of them, and for their registration and secure storage. Given the protective purpose of the provision, the risks that attend the accumulation of weapons and the difficulty of detection, general deterrence is also important in the firearms offences.'
34 Clearly, general deterrence is a prominent sentencing consideration in the firearms charge before this court.
35 I assess your prospects of rehabilitation as fair. On the one hand you have been involved in very serious criminal activity and have had a long-term drug abuse history. On the positive side for you there is a history of regular employment, strong family support and your attendance at the MASC rehabilitation process whilst in custody for your drug addiction. A period on parole will provide you with structure to your rehabilitation on your release from custody.
36 The amount of cumulation of the sentences in this total sentence is moderated to give effect to the principle of totality in sentencing. Your overall criminality is serious and the only appropriate sentence is a total effective sentence and a non-parole period. I take into account your personal circumstances and particularly being the subject of a war-torn start in life, followed by years as a refugee.
37 Finally, the principles of general and specific deterrence, denunciation of your actions, and the just punishment and protection of the community, dictate that the only appropriate sentence is a total effective sentence with a non-parole period.
38 Would you stand, please.
39 On Charge 1 on the indictment you are convicted and sentenced to four years and nine months' imprisonment. That is the base sentence.
40 On Charge 2 you are convicted and sentenced to two years and three months.
41 On Charge 3 you are convicted and fined $100.
42 On Charge 4 you are convicted and sentenced to two months' imprisonment.
43 On Charge 5 you are convicted and sentenced to two years and nine months' imprisonment.
44 On related Summary Charge 10 you are convicted and fined $400.
45 On related Summary Charge 11 you are convicted and sentenced to three months' imprisonment.
46 On related Charge 19 you are convicted and fined $500.
47
In respect to cumulation, the base sentence, as I said, is Charge 1, which is four years and nine months. One year of the sentence in Charge 2 is to be cumulated upon that base sentence, and one year and three months of the sentence in Charge 5 is to be cumulated on the sentence - that part of
Charge 2 and Charge 1.
48 That is a total effective sentence of seven years' imprisonment and a total fine of $1,000. I fix a non-parole period of four years and six months. But for your plea of guilty I would have sentenced you to 11 years with an eight year, six month minimum term. I declare you have served - and I just want to check this is the right number - 343, is that the correct number?
49 MR BOYD-WILSON: Yes, Your Honour.
50 HIS HONOUR: Thank you. Pre‑sentence detention in respect of those sentences of 343 days. I have signed a disposal order and a forfeiture order. Can I ask counsel just to check the arithmetic?
51 MR MANDY: Yes, Your Honour.
52 MR BOYD-WILSON: Can I just check, Your Honour. You mentioned a forfeiture order. There was also a firearms forfeiture order, a different one.
53 HIS HONOUR: Sorry, I'm - thank you. I've signed two forfeiture orders.
54 MR BOYD-WILSON: Thank you, Your Honour.
55 HIS HONOUR: And one disposal order.
56 MR BOYD-WILSON: Yes, Your Honour.
57 MR MANDY: In relation to the fines, Your Honour - and I'm sorry for not having my wig on.
58 HIS HONOUR: No, don't worry about the wig. There's far more important things than our hairdo in here, Mr Mandy.
59 MR MANDY: Did Your Honour say - what did you say the total fine was by your calculation?
60 HIS HONOUR: I'm sorry, yes. So my total came to 500. So I will just go back. So Charge 3 on the indictment was 100.
61 MR MANDY: Right, yes. All right.
62 HIS HONOUR: Summary Charge 10 was 400.
63 MR MANDY: Yes.
64 HIS HONOUR: And Summary Charge 19 was five. So that was a total of 1,000.
65 MR MANDY: Yes. Yes, that's right, Your Honour. And the maths in terms of the years and months is correct.
66 HIS HONOUR: Thank you. Mr Louis, that's a long time in front of you, I know, but you have progressed well on your MASC program. I'd encourage you to stay consistent to your drug rehabilitation. When you get out you've got a family who will support you to get on with a much better life than you had immediately before your offending here. Did you want to - - -
67 MR MANDY: Can I talk to him - - -
68 HIS HONOUR: Yes, certainly.
69 MR MANDY: - - - perhaps after Your Honour leaves the Bench if that's all right with the - - -
70 HIS HONOUR: Yes. Is that all right, Officer? Just for a short time.
71 PRISON OFFICER: It's all right, yes.
72 HIS HONOUR: Thank you. Rather than myself - yes, I'll just leave the Bench for a short time. I've got a judicial monitoring after this, yes.
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