Director of Public Prosecutions v Maatouk
[2022] VCC 1874
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00139
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEORGE MAATOUK |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October 2022 | |
DATE OF SENTENCE: | 27 October 2022 | |
CASE MAY BE CITED AS: | DPP v Maatouk | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1874 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: one charge conspiracy to possess a commercial quantity of an unlawfully imported border controlled drug-MDMA- plea of guilty-prior criminal history-co-offenders- guarded prospects of rehabilitation
Legislation Cited: Criminal Procedure Act 2009, Criminal Code (Cth), Crimes Act 1914, Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169, Ryan v The Queen [2016] VSCA 255, Nguyen & Phommalysackv The Queen (2011) 31 VR 673, R v Nguyen and Pham (2010) 205 A Crim R 106, Wong v The Queen (2001) 207 CLR 584, TheQueen v Pham (2015) 256 CLR 550
Sentence: Term of imprisonment of 9 years and 6 months, with a non-parole period of 6 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr M. Keks | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr C. Pearson | Emma Turnbull Lawyers |
HER HONOUR:
1George Maatouk, on 6 October 2022, after receiving submissions at an earlier hearing, I granted your application for a sentence indication, pursuant to section 207(1)(a) of the Criminal Procedure Act2009. I indicated at that time, the total effective sentence that I would impose should you plead guilty to the charge before me. You then pleaded guilty on arraignment.
2Mr Maatouk you have pleaded guilty to one charge of conspiracy to possess a commercial quantity of an unlawfully imported border controlled drug, contrary to subsections 11.5(1) and 307.5(1) of the Criminal Code (Cth). Specifically, it is alleged that between 21 April 2019 and 26 May 2019 you conspired with Tyson Lovegrove, Eteuati Soe and unknown others, to possess a substance, being MDMA, an unlawfully imported border controlled drug, in a quantity being a commercial quantity.
3This offence attracts a maximum penalty of life imprisonment and /or 7500 penalty units.
Overview of Offending
4The circumstances of the offending are set out in a comprehensive Summary of Prosecution Opening dated 28 September 2022, tendered as Exhibit A. In a document titled Crown Submissions on Sentence (Exhibit B), the prosecution articulated further what your role is said to be in this offending.
5Essentially, on 25 March 2019, a consignment containing an unlawfully imported border controlled drug, namely MDMA was intercepted by Australian Border Force upon arrival via air cargo into Melbourne, Australia.
6The consignment arrived into Melbourne from Germany on Emirates flight EK0404. It consisted of 80 tins labelled ‘Auro Woodstain’. The named consignee was ‘D & A Industrial Lubricants,’ with a listed delivery address of Super Easy Storage (SES), Warehouse 2, 87-107 Toll Drive, Altona North, Victoria.
7Australian Border Force officers examined the consignment and identified a border controlled drug, namely 3,4-Methylenedioxymethamphetamine (MDMA). Each of the 80 tins held 10 litres of liquid indicating the total weight of the consignment to be approximately 800 kilograms.
8Each tin contained a substance similar to a black paste and black liquid. The substance required an extraction and refinement process to convert it into a consumable form of MDMA for sale. Further extensive testing was conducted by the Australian Federal Police of the remaining 76 tins of the seized consignment. This revealed 659,865 grams in black paste and 113,436 grams in black liquid with a representative purity of 15% for the total seizure. The minimum pure net weight of the 76 tins seized containing MDMA was calculated at 97.4 kgs and the remaining four tins contained a minimum of 6.95 kilograms. The total net weight of MDMA seized was 104.35 kilograms.
9The commercial quantity of MDMA is 0.5 kilograms. The amount seized is therefore over 200 times the commercial quantity applicable.
10The street value of the MDMA is estimated between $35.3 and $70.7 million and the wholesale value is estimated between $8.2 and $12.9 million.
11On 29 March 2019, the consignment was deconstructed by the AFP and the drugs substituted with an inert substance for the purpose of a controlled delivery. On 2 April 2019, the substituted consignment was delivered to the listed address at SES, in Altona North. No person immediately attended SES to attempt collection of the substituted consignment and it was seized under warrant four days later.
12During the search warrant, AFP officers identified that between 26 March 2019 and 6 April 2019, a number of emails relating to the consignment were sent to SES from a particular email account, which was ultimately connected to Eteuati Soe.
13The consignment was arranged by a criminal syndicate (which had overseas links to the importation of drugs); a person identified as ‘Cas’ appears to be the main link with each of the accused.
14A number of communications were intercepted between yourself and other co-offenders and with members of the criminal syndicate relating to the anticipated collection of the substituted consignment on various dates between 21 April and 21 May 2019.
15On 24 May 2019 there was a significant volume of communication between you and co-offenders Tyson Lovegrove and Eteuati Soe prior to the attempted collection of the consignment from SES.
16At 3.18pm on 24 May 2019, Mr Soe attended Super Easy Storage (SES) in a 7 tonne truck, with two others who remained with the truck, and attempted to collect the consignment using an electronic version of an altered letter of authority on his mobile phone, authorising himself as ‘Levi Hancock’ to collect the consignment. He stated that he was there on behalf of ‘D & A Industrial’ to collect some pallets of paint. After spending approximately 5 minutes at SES, Mr Soe departed without collecting the consignment after it appears he overheard that the SES staff member was contacting the AFP.
17Earlier on 24 May 2019, 5 separate deposits were made into Mr Lovegrove’s bank account, including a cash deposit of $5,000. This last amount is said to be consistent with conversations captured between Mr Lovegrove and ‘Cas’ which revealed an arrangement of payment of $5,000 for each collected package.
18Both you and Mr Lovegrove facilitated the attempted collection of the relevant consignment on 24 May 2019 in different, but important ways. In your case, you facilitated the attempted collection by receiving and giving instructions, providing Soe with a mobile phone for his use in this venture, providing an electronic version of the letter of authority to collect the consignment and arranging for Soe to be paid or compensated for his role in the enterprise.
19Specifically, three days prior to the attempted collection by Soe from SES, on 21 May, an image of an early version of the letter of authority (purporting to authorise collection of pallets of paint from SES) was taken on Mr Lovegrove’s mobile phone. The image of the letter of authority was sent to your phone from Mr Lovegrove via WhatsApp. A screenshot image of the letter of authority was captured using your phone.
20Later that day, you sent the letter of authority from your email account to an email address linked to Mr Soe.
21On 24 May 2019, there was further significant communication between you, Soe and Lovegrove surrounding the attempted collection of the consignment from SES. Specifically at 7:14am, call charge records indicate you called Soe via his partner’s phone. The conversation was partly captured on an audio recording in which Mr Soe indicated he was intending to collect the consignment that day. In a later message sent to you by Soe, he said, “This is not a job that you wanna rush I’m looking at a lot of peaches if I get spotted…if it were easy it would have been done sorry bro but let me do it my way we still get the same result”.[1]
[1] SPO dated 28 September 2022 at [86].
22The prosecution submits that this and other conversations suggests that you were informally controlling Mr Soe. At the very least, it demonstrates that you were both of an understanding that what was to be collected carried with it a significant risk, and you were providing him with some direction.
23Within half an hour of Soe’s failed collection of the consignment, he contacted you, and there then appears to have been a series of communications between those involved in the syndicate which continued over the next week.
24On 25 May 2019, you and Soe discussed the consignment including that members of the syndicate were conducting checks to see if the consignment had been seized. Mr Soe asked if he could come and get some money from you. You told him: “Bro keep the coin from the pills that’s 600 yeah.” [2]
[2] SPO [126].
25This reference to ‘600’ is said to relate to the sale price of pills supplied by you to Soe and you informing SOE to keep the money from the sale. The relevance of this is said to be that it suggests you had some control over how SOE was to be paid or compensated for his role in the venture. This is said to be illustrative of your role in the hierarchy.
26In a later communication with Soe on 28 May 2019, you told him:
Bro I can’t do anything at the moment with payment until I can sell some things I don’t even have money for shopping so if u can give me a few days I really don’t think old mate should have been honest to Cas about not been able to pay then Cas would have payed it.[3]
[3] SPO [130].
27On 30 May 2019, in another conversation with Mr Soe, you said:
I'll speak to old mate about how we can fix up the bill with u as soon as possible.[4]
[4] SPO [144].
28This is said to reflect the fact that you were responsible for payment to Soe.
29On 5 September 2019, you were arrested and a search warrant was executed on your residence in Reservoir. During the search, the AFP located false identification documents, documents linked to Lovegrove and the email address used by Soe, handwritten in your invoice book. Federal Police also located quantities of controlled drugs and various accoutrements of trafficking. On the same date, you participated in a Record of Interview. You admitted knowing both Lovegrove and Soe, but denied involvement in the charged offence.
Procedural History
30Upon your arrest in September, you were originally held at the Melbourne Assessment Prison for a period of two weeks, before being transferred to Port Phillip Prison where you have remained. You ran a contested committal hearing, where six witnesses were cross-examined and you were committed to stand trial. You intended to contest the charges at trial which was set down for early October 2022, however following a pre-trial ruling on 19 September 2022, you communicated your intention to seek a sentence indication hearing. The matter then resolved following that hearing on 5 October 2022. You were arraigned on 6 October 2022 and entered a plea of guilty.
Prior Criminal History
31You have admitted a somewhat lengthy prior criminal history, including a number of family violence and driving offences. Most relevant to the present offending however, are the charges of drug possession and trafficking for which you were sentenced by this Court in 2016. Following a period of imprisonment you were placed on a Community Correction Order, which you then breached by committing further offending unrelated to the present charges.
Co-offenders
32Mr Soe entered a plea of guilty in relation to this consignment on 30 July 2021, on a charge of attempt to possess an unlawfully imported border controlled drug, which also attracts life imprisonment. He also pleaded guilty to having custody or control of false documents and possessing drugs of dependence. Mr Soe’s plea took place on 27 April 2022 and he was sentenced by his Honour Judge Johns on 7 June 2022 to a head sentence of 8 years and 6 months with a non-parole period of 5 years and 6 months
33Mr Lovegrove indicated an intention to plead guilty shortly before trial. He has been arraigned and a plea hearing set down for later in the year.
Personal Circumstances
34You were born in Lebanon and came to Australia when you were approximately five years old. You had a difficult upbringing which was characterised by your father’s alcoholism and violence. You attended school in Australia until age 15, describing yourself as a somewhat poor student.
35You have had two significant long-term relationships, and have children from each. After your second marriage ended, you became severely depressed and were introduced to amphetamines. You developed an addiction to ‘ice’ which you felt stabilised your mood during this time.
36In 2016, you were sentenced by his Honour Judge Mason of this Court for a number of offences including, relevantly to this offending, trafficking and possession of a drug of dependence. You served seven months in prison for this offending and were released on a Community Correction Order on 11 August 2016 for a period of two years. It appears from Judge Mason’s reasons for sentence that reports from psychologists Carla Lechner and Ian Ball were tendered, which indicated that you were experiencing unresolved grief and anger in relation to your own behaviour and you satisfied the diagnostic criteria for stimulant use disorder in sustained remission.
37Your counsel submitted on your behalf that following your sentence in 2016, you reconnected with your four children, and it seems that for a period in 2017 you had the primary care of all four children through Family Law Court proceedings from May in that year. However you continued to struggle with mental health issues. A report prepared by psychologist Carl Castle from 2017 tendered on the plea, indicates that you participated in at least six sessions with him as part of a mental health care plan for the management of issues with depression, anxiety and stress. It was considered possible that you had an undiagnosed Attention Deficit Hyperactivity Disorder, though it seems that despite expressing you an interest in exploring further psychiatric assessment, this did not take place.
38You told Mr Castle that methamphetamine had a stabilising effect on many of the symptoms you were experiencing but at that stage you were strongly committed to the care of your children, which was a strong motivator for abstinence. However, in 2018 you resumed your drug use, and became associated with negative peers who were involved in the use and supply of illicit drugs.
39Your children are now aged between 12 and 17 years. The mother of your children has also experienced considerable mental health problems for which she has received treatment from Ballarat Mental Health Service since May 2018 and this has included admission for psychotic symptoms in 2019. Mrs Anita Maatouk also has very limited social and family support and has struggled with parental duties. You are eager to be able to return to assist with the care or custody of your children as you have done in the past. I take into account these matters, and the rest of your personal circumstances.
40You have now been in custody for just over three years. Most of that time spent on remand has been during the COVID-19 pandemic. As a consequence you have experienced the periods of lockdown that prisoners have endured during the pandemic, and the restrictions that have operated within that custodial environment. Whilst in custody you have not been in any trouble and have worked as a cleaning billet. Your time in custody has enabled you an opportunity to reflect upon your situation and how significantly you have disappointed those close to you.
Plea of Guilty
41Your plea of guilty was not entered at an early stage. Indeed I consider it a late plea, given it was within a week of the trial. In that time the court heard pre-trial argument and delivered a ruling in relation to issues raised. Nevertheless, despite the lateness of your plea, you are entitled to receive a discount for the plea, as it carries a significant utilitarian benefit. This is particularly so in the current climate where the court has experienced a backlog of jury trials. Accordingly as the Court of Appeal articulated in Worboyes v The Queen[5], your plea of guilty is worthy of greater weight in mitigation than a similar plea entered at a time when the courts and community are not afflicted by the pandemic’s effects. Your plea of guilty should result in a perceptible amelioration of sentence. You have now accepted responsibility for your offending and your plea provides some evidence of remorse. It demonstrates a willingness to facilitate the course of justice.
[5] [2021] VSCA 169.
Parity
42I must have regard to parity. Mr Soe entered a plea of guilty in April 2022. He did so following a contested committal but relatively early once he was committed to stand trial. As I’ve said, he was sentenced in June this year.
43In order to consider parity, the prosecution have submitted that I am to have regard to the roles said to have been played by Mr Soe and yourself as outlined in the Summary of Prosecution Opening and submissions prepared by the prosecution in the sentence indication hearing; the sentence itself imposed on Soe and his prior criminal history. I note that his history was more extensive, however you have a significant drug related prior matter.
44The prosecution submits that your culpability for the offending is higher than Mr Soe’s given your relative seniority in the enterprise. Accordingly a degree of disparity in the sentence to be imposed in your case, is required. Your counsel, Mr Pearson, accepts that your culpability for the offending was greater than that of Mr Soe. It is accepted that there is a relevant distinction that can be drawn between the role played by you as compared with the role played by Mr Soe. However, Mr Pearson submits that Mr Soe’s role was every bit as pivotal as your own and so the disparity should not be significant.
45I find that you and Mr Soe both had different but important roles to play. Whilst Mr Soe took the risk by attending to collect the consignment, you provided directions and instructions. It is not suggested you had any personal connection with the syndicate. This was largely through Mr Lovegrove. However you still played a significant role. I consider that you played an equally important role and were somewhat more elevated in the hierarchy. To use the terminology employed at the sentence indication hearing by your counsel, your role was not a quantum leap over that of Mr Soe, but I find that it was greater, and therefore this, along with the timing of your plea justifies you receiving a greater sentence than Mr Soe.[6] Putting it another way, you are not entitled to the same level of discount given the timing of the plea.
[6] Ryan v The Queen [2016] VSCA 255.
46Accordingly following the sentence indication hearing I indicated that I considered the sentence imposed on you should be greater than that of Mr Soe to reflect the somewhat more senior role you played. Furthermore, whilst you should receive a discount for entering a plea of guilty as I have already discussed, the discount will ultimately be less than Mr Soe was entitled to, given that you entered a plea of guilty less than a week before your trial was due to start.
Prospects of Rehabilitation
47Your prospects of rehabilitation must be assessed in light of your prior criminal history and ongoing issues with substance abuse. However, it is submitted that this experience in custody has been a sobering one, and you now appear to accept responsibility for your conduct. Hopefully you have come to the realisation that if you continue to use illicit drugs, you are likely to find yourself back before the courts and returning to prison. I consider your prospects of rehabilitation to be guarded, but they will improve if you continue to remain abstinent and importantly, seek professional help you need to deal with your mental health issues, including exploring whether you have diagnosed ADHD.
Sentencing Principles
48You fall to be sentenced in accordance with Part 1B of the Crimes Act 1914 (Cth). Section 16A(1) of that Act requires me to impose a sentence that is of a severity appropriate to all of the circumstances of the offence. I am required to have regard to a number of matters, which are set out in section 16A(2), to the extent that they are relevant and known to the court.
Nature and Gravity of Offending
49This offending is inherently very serious, as is reflected by the maximum penalty applicable. Higher Courts in Australia have emphasised often enough that those who engage in offending involving large quantities of unlawfully imported border controlled drugs must expect to receive significant punishment if caught.
50Under section 16A(2)(a) I must take into account the nature and circumstances of the offence. In doing this, I must assess the level of criminality of your role in this enterprise. I have had regard to the principles summarised in the Victorian Court of Appeal decision in Nguyen & Phommalysackv The Queen,[7] previously distilled in the New South Wales decision in R v Nguyen and Pham.[8] Whilst those cases largely concerned importation offences or attempt to possess, the principles are nonetheless applicable to sentencing for Federal drug offences. These principles include that the quantity of the illegal drug involved is a highly relevant factor in determining the objective seriousness of the offence, and is often the main factor available to assess comparative seriousness of criminality.
[7] (2011) 31 VR 673.
[8] (2010) 205 A Crim R 106.
51In this case the quantity here, being over 104 kilograms of pure MDMA was extremely large. It amounts to 208 times a commercial quantity of MDMA. Given the street value of up to $70 million, this was clearly a very large and valuable quantity of drugs. Whilst there is no evidence that you knew of the exact quantity of drug involved, it would appear from the letter of authority that you provided to Mr Soe, which referred to the consignment containing two pallets of paint, that you had some awareness that a significant quantity of drugs was anticipated. Your counsel accepts that you knew that this was a very large consignment of drugs and therefore a very valuable commodity. This is a relevant consideration.
52As a matter of common sense, it should be inferred that involvement in this type of offending was for profit. In this case, the prosecution submit that your motive must have been financial. Indeed your co-conspirators expected a substantial reward as is reflected in some of the conversations involving Mr Soe. Your counsel, Mr Pearson, submitted that you expected to receive payment of a few thousand dollars and you also expected to receive some drugs. It is submitted that somebody higher than you told you that you would receive some small portion of the produce and money for your role in the collection of the consignment. This is relevant to my assessment of the gravity of your offending.
53You were also aware that collection of this consignment carried considerable risk. Indeed it appears that you and Mr Soe discussed what the repercussions might be if Mr Soe’s offending was detected.
54The role you played in this offending was not insignificant. I accept the prosecution submission that you were an active and central participant in the conspiracy to collect the consignment. Your counsel concedes that you played a pivotal role. You were aware that this venture involved overseas participants and involved some degree of organisation. You acted as an intermediary between Mr Soe and those higher than you in the hierarchy, dealing directly with Mr Lovegrove. There was a large volume of communication between yourself and Mr Lovegrove and Mr Soe. You gave directions to Mr Soe, provided him with the letter of authority, a mobile phone which he used during the period of the conspiracy, and you were responsible for his payment.
55As the High Court said in Wong v The Queen[9] at [64]:
the larger the importation, the higher the offenders level of participation, the greater the offenders knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted.
[9] (2001) 207 CLR 584.
Current Sentencing Practices
56I must have regard to current sentencing practices however this is only one factor and not the controlling factor in the fixing of a just sentence. As the High Court set out in TheQueen v Pham[10], when sentencing for a Commonwealth offence I must have regard to sentences that have been imposed in other states and territories. A table was tendered by the prosecution which summarised cases involving sentences for federal drug offending concerning large quantities of border controlled drugs. The prosecution submits that these cases provide guidance as to the application of relevant sentencing principles and illustrate a sentencing pattern for drug offending of this kind. I have had regard to that table and each of the cases referred to therein. Clearly federal offending involving a considerable quantity of drugs has attracted significant sentences. Had it not been for your plea of guilty and the matters that I am obliged to take into account when determining sentence, including parity you most likely would have found yourself receiving a sentence more closely aligned with some of those cases to which I have been referred.
[10] (2015) 256 CLR 550.
Other Relevant Sentencing Considerations
57Given the seriousness of the charge and the considerable quantity involved general deterrence is a very significant sentencing consideration. This is set out in section 16 A(2)(ja) of the Crimes Act 1914. Offences of this nature are often difficult to detect and the great harm that such drugs can cause within the community is well known. For this reason, general deterrence is said to be given chief weight in the sentencing task and that stern punishment will be warranted in almost every case. The sentence that I impose must reflect the significant punishment to be expected by people who participate in enterprises such as this involving large quantities of drugs. It is also necessary that the court denounce your conduct, and I do so. Given your prior criminal history and the fact that you have previously been involved in trafficking drugs, there is also a need for specific deterrence.
58In formulating an appropriate sentence I have had regard to each of the matters discussed, the relevant provisions of section 16A(2) and the need to impose a sentence that is just in all of the circumstances.
Sentence
59On the charge of conspiracy to possess an unlawfully imported border controlled substance you are convicted and sentenced to 9 years and six months imprisonment. I fix a non-parole period of six years and three months, that is the period before which will eligible for parole. I declare 1148 days of presentence detention to be reckoned as served and I direct that the recorded in the court records.
S 6AAA Sentencing Act 1991
60Pursuant to section 6AAA of the Victorian Sentencing Act 1991 I state that had you been found guilty of this charge after trial I would have imposed a sentence of 12 years and 3 months imprisonment with a non-parole period of 9 years and 6 months.
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