Director of Public Prosecutions v Maatouk

[2016] VCC 1171

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00848

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEORGE MAATOUK

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2016
DATE OF SENTENCE:	11 August 2016
CASE MAY BE CITED AS:	DPP v Maatouk
MEDIUM NEUTRAL CITATION:	[2016] VCC 1171

REASONS FOR SENTENCE
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Subject:Plea - sentencing

Catchwords:             Trafficking in drug of dependence - possessing drug of dependence - possess prohibited weapon without exemption - commit indictable offence whilst on bail - possess Schedule 4 poison

Legislation Cited:     Sentencing Act 1991

Cases Cited:            

Sentence:7 months’ imprisonment (time served) and 2-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes	Office of Public Prosecutions
For the Accused	Ms E. McKinnon

HIS HONOUR:

1George Maatouk, you have pleaded guilty to one charge of trafficking in a drug of dependence, one charge of possessing a drug of dependence, one transferred summary charge of possess prohibited weapon without exemption, one transferred summary charge of commit an indictable offence whilst on bail and one transferred summary charge of possess a Schedule 4 poison.

-    Trafficking in a drug of dependence carries a maximum penalty of 15 years' imprisonment. 

-    Possession of a drug of dependence (with trafficking purposes not excluded) carries a maximum penalty of 5 years' imprisonment. 

-    Possession of a prohibited weapon without exemption carries a maximum penalty of 2 years' imprisonment or 240 penalty units. 

-    Committing an indictable offence whilst on bail carries a maximum penalty of 3 months' imprisonment or 30 penalty units

-    Possession of a Schedule 4 poison carries a maximum penalty of 10 penalty units.

2You were born on 2 November 1964 and are now 51 years old.  You were also 51 at the time of the offending in late November last year.  You do have a criminal record about which I will go into more detail later.

3At about 7.20 pm on Friday 20 November 2015, you attended the Dingley International Motel on Boundary Road, Dingley.  You checked into Room 203 and were given swipe card access. 

4You were known to staff at the motel as you had stayed on a number of occasions previously.

5The next morning between 8 am and 10 am, a man attended the motel and spoke to the receptionist, Ms Bowen.  He inquired as to which room you were staying in and was advised Room 203.  He then walked towards Room 203.  About ten minutes later, he walked past the reception and left the motel.

6At about 12.30 pm, the motel's cleaner entered Room 203.  He opened the fridge and located a white-coloured plastic bag on one of the shelves.  He removed the bag from the fridge, looked inside and noticed that it contained pink-coloured tablets.  He then informed the housekeeping manager, who inspected the bag and took it to Ms Bowen at reception.  Ms Bowen secured the bag in a cupboard behind the reception area.

7Ms Bowen was about to contact police when you returned to the motel with a young child.  You requested a booking for Room 203 for the night.  Ms Bowen advised you that the room was not available.  She booked you into Room 106 and you were provided with swipe card access to that room.

8You then requested access to Room 203 claiming to have left a key in the room.  Ms Bowen refused your request. 

9You left the reception and approached one of the housekeepers.  You told her that you needed access to Room 203 as you had left your child's insulin and medication in the fridge inside the room.  The housekeeping supervisor was advised and allowed you access to the room.

10She opened the fridge in your presence and could not locate any insulin or medication.  You appeared agitated and looked in the fridge again prior to leaving the room. 

11You left the motel with the child, got into a car and drove away.

12At about 1.45 pm Ms Bowen reported the matter to police and provided a description of the car you were driving.  You were captured on CCTV cameras located at the motel.

13Between 2.05 pm and 2.30 pm, police attended the scene.  They also seized the bag of tablets and conducted a search of Room 203.

14At about 5 pm police observed you in the foyer of the motel. 

15At about 5.10 pm you were arrested by police in the gaming room of the motel.  You were searched and found to be in possession of a mobile phone, $1370 in cash and a zip lock bag containing white crystals.  The substance was found to contain methylamphetamine.  The total quantity of the substance including the methylamphetamine was 0.9 grams.  This is represented by Charge 2, possession of a drug of dependence, methylamphetamine.

16The bag located in Room 203 was found to contain 820 ecstasy tablets weighing 168.9 grams.  The approximate purity was between 20 and 25%.  The total quantity of MDMA was therefore less than 100 grams.  This is represented by Charge 1, trafficking in a drug of dependence, specifically MDMA.

17You were taken to Moorabbin Police Station where you were interviewed.  You admitted to booking into Room 106 at the motel.  You stated that you left the motel and returned later in the afternoon when you were arrested by police in the gaming room.  You gave a “no comment” answer when asked about Room 203.

18At the conclusion of the interview, police conducted a search of Room 106 at the motel.  They located a bag containing 69 white tablets and 29 tablet portions weighing 14 grams and containing Zopliclone, which is represented by the related summary offence, Charge 9, possession of a Schedule 4 poison.

19Police also located a machete and a set of digital scales, as represented by related summary offence, Charge 6, possession of a prohibited weapon without exemption.

20On 22 November 2015 you were interviewed in relation to the items found in Room 106.  You gave “no comment” answers.

21On 16 September 2015 at the Frankston Magistrates' Court, you had been released on appeal bail to appear at the Melbourne County Court on
19 November 2015.  You were therefore on bail at the time of the current offending.  Those circumstances relate to summary offence Charge 8, commit an indictable offence whilst on bail.

22This matter resolved at a further committal mention on 16 May 2016 and proceeded by way of straight hand-up brief at the County Court. 

23You have spent 227 days in custody by way of pre-sentence detention.

24I turn now to your personal circumstances. 

25As I noted earlier, you are now aged 51 and you were that age at the time of this offending in November last year. 

26Your criminal history commences with an appearance in the Hobart Court of Petty Sessions on a driving offence for which you were fined, followed by further appearances in Victorian Magistrates' Court in 2006 and 2010 for various driving offences. 

27I note that in June 2010 you were given a one-month gaol term which was wholly suspended for 12 months and in 2006 you were given two months’ imprisonment to be served by way of intensive correction order.

28On 16 September last year in the Frankston Magistrates' Court, you were given an aggregate two-month gaol term to be followed by a 12-month community correction order for multiple offending including burglary, theft, unlawful assault and contravention of a family violence intervention order.

29You appealed that sentence and were placed on bail pending your appeal to the County Court.  The current offending occurred whilst you were on that appeal bail.

30In February this year your appeal was heard.  The gaol time was removed and you were sentenced to serve a 12-month community correction order commencing 22 February 2016.

31By this time you were already in remand custody for these matters following your arrest on 21 November 2015.  You were therefore unable to start the community correction order on the required date.

32On 4 July this year you were granted bail by this court after having served 227 days in remand.  You then reported to Corrections and commenced serving the community correction order which had been suspended until the time of your release so that it could be properly served.

33Whilst it is early days in the period of that order, your case manager has confirmed that you have been engaging well and have attended all appointments associated with treatment and rehabilitation.

34You were born in Lebanon and came to Australia at the age of approximately five.  You had an unhappy upbringing in the context of your father's behaviour with alcoholism and violence.  You described yourself as a poor student and left school at age 15.  You have worked in a variety of jobs including as a rooming house manager and manager of a tattoo shop.

35You have been involved in two long term unsuccessful relationships.  You have children from each.  You report that after your second marriage ended, you became suicidal and depressed.  You were introduced to amphetamines, in particular ‘ice’, which you found stabilised your mood.  Your use of amphetamines possibly began as a means of self-medication.  You developed an addiction.

36A report in September 2015 from Ms Carla Lechner, consultant psychologist, informed that you impressed as anxious and depressed with moderate depression, impulsive personality and low tolerance for frustration.  It was possible that in your formative years you suffered from attention deficit hyperactive disorder.  The diagnosis by Ms Lechner was that you presented with symptoms of stimulant use disorder and adjustment disorder with depression.  The assessment was shortly before you were to present to court on 16 September 2015.

37A further report from Mr Ball, forensic psychologist, was tendered on your plea.  In Mr Ball's opinion you remain significantly affected by unresolved grief, you remain angry, self-loathing and guilt-ridden over actions you took.  You satisfy the diagnostic criteria for stimulant disorder in sustained remission.

38You have used the time in custody usefully as a period of “enforced rehab” - as you have described it - and have attended regular presentations run by Narcotics Anonymous and have produced regular negative results to drug substance testing.  You also completed an educational program in drug relapse prevention.

39Trafficking in amphetamines at the level you did is obviously serious offending and brings much harm to the community.  The principles of denunciation by the court and deterrence are important considerations.

40Whilst you had developed an addiction and I can take that into account to some degree, it was an avenue you chose rather than seek help for your anxieties by lawful methods of medication and psychological assistance.

41In mitigation, I have taken into account the submissions made by your counsel and accept in particular:

·    your plea of guilty and the early stage at which it was entered, both for its practical value and as an indication of your remorse,

·    your rehabilitation efforts made whilst in remand custody,

·    the character references provided,

·    the circumstances and context leading to your descent into addiction,

·    the engagement you have made with Corrections since your release and the evidence of negative drug screens.

42Balancing all the circumstances I am satisfied that, taking into account the time that you have already spent in remand custody, the mitigating matters and the progress that you have made towards your rehabilitation, a sentence of imprisonment followed by a community correction order would appropriately balance the required sentencing considerations, giving due emphasis to the seriousness of the nature and circumstances of the trafficking offence in particular, balanced with the need to encourage and assist in your rehabilitation.  You have been assessed as suitable for a community correction order.

43On Charge 1 on the indictment of trafficking in a drug of dependence, you are convicted and sentenced to 6 months’ imprisonment;

44On Charge 2 on the indictment of possessing a drug of dependence, you are convicted and sentenced to 1 month’s imprisonment.

45Charge 1 is the base sentence and I direct that the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.

46The total effective sentence is 7 months' imprisonment.  The sentence starts today.

47As to the term of imprisonment, you were remanded on 21 November 2015 and granted bail on 4 July 2016. So pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 227 days (which represents 7 months and 14 days) be reckoned as time already served under this sentence and I direct the fact of this declaration and its details to be noted in the records of the court.

48I note that since the pre-sentence detention exceeds the term of imprisonment, it is my intention by the sentence that I have imposed that Mr Maatouk not be taken into custody.  The term of imprisonment has actually been served by the taking into account of the pre-sentence detention.  So I address that comment to the custody officer.  Do you understand that sir?

49PRISON OFFICER:  Yes, Your Honour.   

50HIS HONOUR: Thank you. Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the sentence that would have been imposed on Charges 1 and 2 on the indictment is 2 years' imprisonment with a minimum period of 18 months to be served before eligibility for parole.

51On Charge 1 on the indictment of trafficking in a drug of dependence and Charge 2 on the indictment of possessing a drug of dependence, you are also ordered, with conviction, to serve a community correction order for a period of 2 years.

52The community correction order commences today and ends on
10 August 2018.  The Corrections centre you will attend is the Heidelberg Community Correctional Service at 81 Burgundy Street, Heidelberg and you must attend there within two clear working days after the commencement of the order, that is, by 4 pm next Monday, 15 August.

53All the mandatory terms of the community correction order apply and the additional conditions I impose are that:

·    you be under the supervision of a Community Correction officer;

·    you perform 200 hours of unpaid community work as directed by the regional manager;

·    you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;

·    you undergo medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility (if necessary) as directed by the regional manager;

·    you undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric and again, if necessary, in a hospital or residential facility as directed by the regional manager.

54I know that you have already had the mandatory terms of a community correction order explained to you, both in the assessment phase and by virtue of the fact that you are currently undertaking a community correction order, but it is important that I do remind you of them now.

55The mandatory terms are that: you must not commit another offence for which you could be imprisoned during the time that the order is enforced.  Do you understand that?

56OFFENDER:  Yes, Your Honour.

57HIS HONOUR: You must comply with the requirements of regulation 17 of the Sentencing Regulations 2011, which essentially sets out your obligations as to your attendance at the Community Corrections Centre, such things as not attending when drug- or alcohol-affected.

58You must report to and receive visits from a Community Correction officer.

59You must report to the Community Corrections Centre, that is, the Heidelberg Centre, within two clear working days of the order starting, and as I have already indicated that is by 4 pm this Monday 15 August.

60You must notify the Community Corrections officer of any change of address or employment within two clear working days after the change.

61You must not leave Victoria without first getting permission to do so from a Community Corrections officer, and you must obey all lawful instructions from and directions of Community Corrections officers - such directions may be given either orally or in writing.

62So do you understand and agree to those conditions, Mr Maatouk?

63OFFENDER:  Yes, Your Honour.      

64HIS HONOUR:  Thank you.  Now if you get sick or if there are exceptional circumstances the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case you must notify the Heidelberg Community Corrections Centre and I recommend that you obtain legal advice if any of these things happen.

65However I must warn you, and warn you directly and seriously, that if you breach any condition of this order you will be brought back before Court and that will be before me.

66One of the options open to me is to cancel the community correction order and to re-sentence you on the original charges, and I may also deal with you for the breach offence by sending you to prison for up to three months.  So do you understand the consequences of breaching your community correction order?

67OFFENDER:  Yes, Your Honour.

68HIS HONOUR:  All right.  Well I will ask you to sign the community correction order shortly. 

69On the transferred summary Charge 6 of possess prohibited weapon without exemption, that weapon being a machete, you are convicted and fined $100.

70On the transferred summary Charge 8 of commit an indictable offence whilst on bail, you are convicted and fined $200.

71On the transferred summary Charge 9 of possess a Schedule 4 poison, as I understand it, a sedative, you are convicted and fined $100.

72At the plea hearing the Crown sought a disposal order to which you consented and I make that order today. 

73Now if the community correction order can be passed to Ms McKinnon, I will ask you to read it and if you accept it, you sign it and then I will sign it.  You may leave the dock for this purpose.

74Was there anything else from either counsel?

75MS McKINNON:  No, Your Honour.

76MS PARKES:  No, Your Honour.

77HIS HONOUR:  Mr Maatouk, you have acted sensibly, I think, in addressing things the way you did by taking the time in prison sensibly and using that as an enforced detox.  So let us hope you have broken the habit.  There will be times when you will be challenged by past events, your reactions to them.  What you have obviously got to do is use the resources that are going to be available to you through the programs that you are on.

78OFFENDER:  Yes, Your Honour.

79HIS HONOUR:  Just communicate.  Get in touch with people if things are getting hard for you so that you can get some medication, something legitimate by prescription, to help you through things if you find yourself getting challenged.

80OFFENDER:  Thank you, Your Honour.

81HIS HONOUR:  Good luck.

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