Director of Public Prosecutions v Makdissi

[2018] VCC 593

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02508

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRIAN MAKDISSI

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2018
DATE OF SENTENCE:	30 April 2018
CASE MAY BE CITED AS:	DPP v Makdissi
MEDIUM NEUTRAL CITATION:	[2018] VCC 593

REASONS FOR SENTENCE
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Subject:  Trafficking in a drug of dependence - commercial quantity, trafficking in a drug of dependence, possession of a drug of dependence, prohibited person possess a firearm, dealing with property suspected of being proceeds of crime, possess cartridge ammunition without a licence or permit.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Lew	OPP
For the Accused	Mr D Grace	Natoli Howell Solicitors

Pages 1 - 13

 

 

HER HONOUR:

1Brian Makdissi, you have pleaded guilty to numerous charges of drug possession and drug trafficking, one in a respect of an amount not less than a commercial quantity.

2Your offending relates to your activities between 30 November 2016 and March 2017.  You have also agreed to have dealt with by me, and pleaded guilty to, related summary offences arising from other items found in your possession on your arrest on 1 May 2017.

3A co-offender, Hannah Reed, failed to appear before me on the plea date and a warrant was issued.  A third co-offender, Mitchell Kirkham, was dealt with in the Magistrates' Court.  However, he was not charged with the commercial quantity trafficking.  I note that Kirkham and Reed were in a relationship.

4The relevant maximum penalties for your offending are as follows.

5Trafficking in a drug of dependence, commercial quantity; 25 years.

6Trafficking in a drug of dependence; 15 years.

7Possessing a drug of dependence where the court is satisfied, on the balance of probabilities, the offence is not committed for a purpose in relation to trafficking that drug; one year - and it was not suggested, given these amounts, that they were, in this instance, for the purpose of trafficking;

8Small quantity of cannabis; five penalty units.

9Prohibited person possessing a firearm; 10 years.

10Possessing a prohibited weapon; two years, or 240 penalty units.

11Dealing with property suspected of being the proceeds of crime; two years.

12Possessing cartridge ammunition without a licence or permit; 40 penalty units;

13And possessing a Schedule 4 poison, ten penalty units.

Charge 1, Trafficking Methamphetamine.

14On 30 November 2016, a police covert operative made contact with Reed.  A relationship had been established between them in the preceding fortnight, and she had sold the operative some methamphetamine.

15As arranged, the covert operative attended an apartment in Melbourne at approximately 7:50 pm, where both Reed and Kirkham were present.  Reed told the covert operative that her supply was on his way.  Reed also showed the covert operative a bottle of GHB and discussed wholesale and retail prices of that substance.  Two other customers of Reed came and went whilst the covert was waiting for you with them.

16At approximately 9.10 pm, you arrived at the apartment and proceeded to measure 2 grams of methamphetamine out of a larger bag that you were carrying.  You gave that to Reed who gave it to the covert operative.

17The operative paid Reed $1200 and she then gave the money to you.  Those funds were then divided between you, Reed and Kirkham, and you then left the apartment.

18The substance was analysed and found to consist of two grams of methamphetamine at a purity of 76 per cent.

Charge 2; Traffic Methylamphetamine.

19The covert operative continued communications with Reed over the few weeks, although her offers for drugs were declined.  On 18 January 2017, a series of SMS messages were exchanged between them and it was agreed the covert operative would purchase 3.5 grams of methamphetamine for $1200.

20The covert operative collected Reed, who then directed her to go to Highlander Lane, where Reed said her supplier lived.  You were at the apartment with two other males.  Reed gave you $1500, made up of $1200 from the covert operative and $300 of her own funds.

21You then supplied approximately 7 grams of methamphetamine.  Reed then measured what she claimed was 4 grams into another bag, which she gave to the covert operative.  The drugs were later analysed and found to consist of 3.5 grams of methamphetamine at a purity of 67 per cent.

Charge 3, trafficking U4-Butanediol, a commercial quantity.

22From 15 February 2017, your phone and Reed's phone were lawfully intercepted.  On 28 February 2017, Reed and the covert operative discussed the purchase of GHB.

23After negotiations, Reed indicated that she could supply 2 litres of GHB for $2500.  On 9 March 2017, Reed contacted you to see if you could supply two bottles of wine.  You told her they would cost 12 each and that she would organise it.  Reed then told a different covert operative it had been organised, and it would be at a cost of 13 each.  She met up with this other covert operative and was given $2600. 

24You were at a flat in North Melbourne, and when they arrived, you indicated that the GHB had not yet arrived.  You sent someone to get it, and both Reed and that covert operative left.

25When they later returned, you handed the covert operative a plastic shopping bag containing two bottles.  Reed, shortly afterwards, texted Kirkham to say that she was at "Brizzle's", a name whereby she was referring to you, and that she had made a quick $200 "on this juice".

26The substance in the bottles was analysed.  It was found to contain 1,4-Butanediol, the total quantity being 1644.7 grams.  A commercial quantity of that substance is 2 kilograms, or 2000 grams.

27In this instance, the amount that was actually passed on to the covert operative was less than a commercial quantity.  However, the prosecution case is put on the basis of an agreement to sell.  That is, it relies on the fact that both you and Reed agreed to sell the 2 litres of 1,4-Butanediol in an amount that was not less than the commercial quantity, even if a lesser amount was ultimately passed on.

28You were arrested on 1 May 2017, and your premises in North Melbourne and Melbourne were searched.  At Highlander Lane, police seized: 

29(a), a total of 62.6 grams of white or blue crystals containing methamphetamine in seven different bags.  The individual bag amounts ranged from 2 grams to 40.8 grams.  The purity ranged from 57 per cent to 84 per cent.  The methamphetamine in the 40.8 gram bag had a purity of 81 per cent.  Charge 4; Traffick Drug Dependence.

30(b), Two tablets, plus some tablet portions and powder, which contained methorphan.  That is Charge 5, possessing a drug of dependence;

31(c), A small tablet weighing .2 grams which contained lidocaine.  Related Summary Offences - possessing a schedule 4 poison;

32(d), A small quantity of cannabis.  That is Charge 6, possessing a drug of dependence;

33(e), A double-barrelled shotgun - that is being Charge 7, a prohibited person possessing a firearm;

34(f), A shotgun cartridge - that is one of the Related Summary Offences, possessing cartridge ammunition without a permit;

35(g), A set of knuckle dusters - a Related Summary Offence, possess prohibited weapon;

36(h), $15,333 in cash, Related Summary Offence - deal with property suspected of being the proceeds of crime.

37At North Melbourne, police seized a bag containing .4 grams of white power which contained methamphetamine at a purity of 42 per cent.  That is charge 8, possession of a drug of dependence, and also located was a jar containing 5.9 grams of U4-Butanediol.  Charge 9, possessing a drug of dependence.

38In respect of your personal circumstances, I received the following documentation on your plea:

39Report of Warren Simmons, psychologist, dated 13 April 2017.

40Report from Peter Harvey, counsellor, Refocus Program, dated 12 July 2016.

41Results of three drug screen tests between the period June-July 2016 and two results from October 2016.

42I note that all this material was provided prior to your arrest for these matters, and that Mr Simmons was not aware of your involvement in this offending.

43Additionally, there was a report from Dr Walter De Bartolo dated 13 March 2018.

44Drug screen results dated 29 January 2018.

45Bundle of character references from Reverend Father Jack Lutfi, Olivia Terziovski, and Mary and George Macdesi.

46A contravention of community correction order report dated 9 September 2017.

47And a bundle of certificates from Marngoneet Correctional Centre.

48I take all this information into account.

49You are currently aged 39.  You were born in Lebanon and have three siblings.  Your father came to Australia in November 1986 with you and your other family members joining him four years later.

50You, as the eldest son, took up familial responsibilities at a young age, assisting your family to survive during this time of civil war in Lebanon.  In May 1990, all of your family were re-united in Australia and you initially lived with your grandmother in Brunswick.  You went to primary school, although none of your siblings or you knew any English, and it was a difficult time for all of you.  You went to Coburg High School and your family ultimately purchased a house in that area.

51You struggled at school and found it difficult to fit in with your peers, wanting to work rather than continue with your education.  Your father was extremely disappointed with this attitude and you were subjected to physical abuse by him when you received unacceptable school reports or bad results.  You left school at the end of Year 10 and were physically punished by your father for doing so.

52You got into trouble for stealing a pair of sunglasses from a chemist shop when you were a teenager, and police issued you with a warning.  Your father dished out a more severe punishment, severely beating you, resulting in police being called and you being placed in a foster hostel for a period of approximately six months.

53When you were 16, you left home and obtained work as a panelbeater.  Though you were unable to get an apprenticeship, you remained working in that field for about three years.

54By the age of 20 you had developed an interest in heroin, and you quickly became addicted.  Despite drug use, you commenced and completed an apprenticeship in carpentry when you were 23.

55You have a number of prior convictions.  These were initially between the period of 2000 to 2003.  I was informed that those offences arose at a time when you were severely affected by drugs and resulted in you being placed on a suspended sentence.

56Between 2004 and 2010, you lived at home with your parents, until you had a serious argument with your father that led to both you and your brothers leaving home.

57You were supported by your brothers, who assisted you in getting off drugs at this time, and also assisted you in obtaining methadone or other medication over a period of approximately two years.  You had been working with your brothers, and then you went and worked for a rival company in 2012.

58Since 2013, you have not been regularly employed and any work that you have undertaken has been for the purpose of obtaining funds for your drug habit.  I was informed that you were working on the apartment in Highlander Lane around the time of your arrest.

59You moved out of the home that you shared with your brothers, and it was at this time that you were introduced to methamphetamine, and which led to your more recent bout of court appearances.

60You continually failed to comply with community correction orders imposed during 2013 through to 2016, with you committing drug-related offences.

61Ultimately, you were sentenced to serve two months' imprisonment in February 2016 and at the completion of that term, a further community correction order was imposed.

62It was during the time of this CCO that you engaged for a short time with Refocus Program, and provided a limited amount of clean urine screens.  However, you were again breached in respect of this community correction order for numerous drug and driving offences.

63In December 2016, you were given yet another opportunity on a CCO, although that was also breached.

64I was informed that for much of this time you were hopelessly addicted and that you had to offend to support your habit.  Further, that at the time of your arrest on 1 May 2017, you were heavily addicted and living a very unstable existence with no plans for the future and no assets or savings.

65On 9 September 2017, you were sentenced to a total effective sentence of eight months' imprisonment for drug offences committed in 2016 whilst you were addicted to methamphetamine, and also re-sentenced in respect of offences to which the CCO related.

66You have no matters outstanding.

67I was informed that since your incarceration, you have weaned yourself off drugs and undertaken courses within the gaol system.  You have provided peer support to fellow prisoners and offers of employment have been made to you upon your release.

68You have been in custody since your arrest in May 2017, so it has been a period of almost a year.

69As to your rehabilitation prospects, there are some features that auger well for your rehabilitation.  Your family remains supportive of you, and will assist you on your release, with your brothers offering you work and your parents offering you accommodation - even though they both suffer from ill health.

70You have, in the past, been able to remain drug-free for an extended period of years.  You have engaged with relevant courses whilst in custody, including participation in an intensive drug and alcohol course at Marngoneet.

71However, you do have an extensive drug history, and have repeatedly failed to comply with orders designed to allow you the opportunity to overcome your drug issues whilst in the community.

72I regard your rehabilitation prospects as fair, although they are clearly dependent on you utilising supports that you have and remaining committed to being drug-free.

73Your counsel remarked on the improvement in your presentation since you have been in custody.  That will continue with abstinence.

74You have pleaded guilty to these matters at an early stage in the proceedings, and I accept there was some delay with your matter coming to court because of the position your co-accused Reed adopted regarding the commercial quantity charge.

75Your guilty plea has significantly facilitated the course of justice, and has a utilitarian benefit.  No trial was necessary, and your plea saved the cost to the community of court time and resources.

76I take into account the extent that you have co-operated with authorities.  This is also indicative of remorse for your offending.

77As to aggravating features, you were the supplier of drugs to Reed.  You are to be considered higher in the chain from a street-level trafficker.  You trafficked in two different types of drug:  methylamphetamine and 1,4-Butanediol, and they were both of high purity.

78In respect of commercial quantity, the maximum penalty is 25 years.  You were on a community correction order at the time of this offending.

79I accept that the commercial quantity was just over the threshold, and that the amount agreed to be purchased was in fact less than that which was supplied by you.

80On the material available, the amounts of money involved, or profits, were not significantly large and the amounts of methamphetamine involved in the transactions were small.

81It was submitted that you were not motivated by greed, but that you trafficked in order to support your own habit.  That submission was not disputed by the prosecution and I accept that that is the reason for which you engaged in this activity.

82It was submitted that the extent of trafficking in methylamphetamine was reflected in the sentence imposed on your co-accused, Kirkham, for similar offending.

83He was dealt with for some of the same trafficking methamphetamine offences in the Magistrates' Court, which are before me.  He received a sentence of 90 days, which was effectively time served, and placed on a community correction order.

84However, there are some differences between you, and between you and Reed.  You were higher up the scale, have a significant criminal history, and in respect of Kirkham, you face the more serious commercial quantity charge.

85Both counsel properly conceded that a term of imprisonment was the only appropriate disposition for your offending.  Your counsel submitted that in recognition of the efforts that you have made to rehabilitation, and considering all the other matters in mitigation, that I should impose a non-parole period that effectively allows for you eligibility for parole to be in the near future.

86Given your history of offending and non-compliance with court orders, specific deterrence is a matter I must take into account.  Further, those who are involved in drug trafficking on any scale should be aware that the community expects stern punishment and that those who are minded to be involved in such activity should have that expectation if they are caught.

87Thus, general deterrence, denunciation and punishment are all relevant sentencing considerations.  These must be balanced against matters set out in these reasons in mitigation, particularly your efforts at rehabilitation since you have been in custody since May 2017.  Those efforts are recognised in a shorter than usual non-parole period, although your eligibility, ultimately, is a matter for the parole board.

88I also take into account totality, given that you were sentenced for other similar matters in September 2017 and you are to be sentenced for a number of offences before me.

89If you could please stand.

90In respect of Charge 1, trafficking, you are convicted and sentenced to a term of imprisonment of six months.

91In respect of Charge 2, trafficking in  methylamphetamine, you are convicted and sentenced to a term of imprisonment of six months.

92In respect of the trafficking the commercial quantity, or, not less than the commercial quantity, you are convicted and sentenced to a term of imprisonment of three years.

93In respect of traffic methylamphetamine, Charge 4, you are convicted and sentenced to a term of imprisonment of two years.

94In respect of Charge 5, possessing a drug of dependence, you are convicted and fined $200.

95In respect of Charge 6, possessing a small quantity of cannabis, you are convicted and discharged.

96In respect of Charge 7, being a prohibited person possessing a firearm, you are convicted and sentenced to a term of imprisonment of one month.

97In respect of possession of a drug of dependence, Charge 8, you are convicted and fined $200.

98In respect of possession of a drug of dependence, Charge 9, you are convicted and fined $200.

99In relation to the summary matters, in respect of possession of a Schedule 4 poison, you are convicted and discharged.

100In respect of a possession of cartridge ammunition, with no permit, you are convicted and fined $100.

101In respect of dealing with property as suspected of being the proceeds of crime, you are convicted and fined $200.

102And in respect of possession of a prohibited weapon, being the knuckle dusters, you are convicted and fined a total amount of $100.

103That makes a total amount of fines of $1000.

104And in respect of your term of imprisonment, the base sentence is that imposed in respect of Charge 3, six months of the sentence imposed on Charge 4, and one month of the sentence imposed on Charge 2, will be cumulative; which gives a total effective sentence of 3 years and 7 months, and you will be required to serve 18 months non-parole period.  That sentence, two months, will be cumulative on the sentence that you are currently undergoing.

105What is the PSD, please?  Because there was time before 1 September, was there not?

106MR LEW:  It was 141 days, Your Honour.

107HER HONOUR:  Thank you.  I declare 141 days pre-sentence detention.  I have been handed up a number of orders.  I will just sign these.

108If you had not pleaded guilty to this matter, pursuant to s.6AAA of the Sentencing Act, I would have sentenced you to a term of imprisonment of six years with a non-parole period of four.

109You can sit down, Mr Makdissi.  Thank you.

110Did you want time, Mr Grace, in respect of the fines?

111MR GRACE:  I am told that since this day of this year, there is - -

112HER HONOUR:  Now you are saying that, I think that is right.

113MR GRACE:  There is no time.

114HER HONOUR:  You do not do it any more.

115MR GRACE:  It is a matter for the Fines Authority.

116HER HONOUR:  I think that is right.  I am sorry.  Yes.

117MR GRACE:  I just wanted to clarify one aspect of the sentence.  You said, "Two months cumulative on the existing sentence"?

118HER HONOUR:  Yes.  It was not my intention that it be wholly concurrent, if that makes sense.

119MR GRACE:  Yes, however, the existing  ‑ ‑ ‑

120HER HONOUR:  The existing sentence has only got ‑ ‑ ‑

121MR GRACE:  It has got less than a month to go.

122HER HONOUR:  Yes.

123MR GRACE:  It has got two or three weeks, I think.

124HER HONOUR:  Yes.  Sorry.  I should have realised that.  Look, what I will do is amend that.  If you could amend the court record, please, to have it wholly concurrent.

125MR GRACE:  If Your Honour pleases.

126HER HONOUR:  It ends up being about an extra six months to serve.  That is my intention.

127MR GRACE:  Yes, Your Honour.

128HER HONOUR:  Thank you.  Just adjourned until tomorrow.

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