Director of Public Prosecutions v Mallahie
[2024] VCC 310
•15 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
Case No. CR-23-01085
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YOUSSEF MALLAHIE |
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JUDGE: | HER HONOUR JUDGE CARLIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 February 2024 |
DATE OF SENTENCE: | 15 March 2024 |
CASE MAY BE CITED AS: | DPP v Mallahie |
MEDIUM NEUTRAL CITATION: | [2024] VCC 310 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aiding and abetting drug importation; Pure MDMA; Safekeeping of a mobile phone; Prior offences; Childhood difficulties; Very high moral culpability
Legislation Cited: Criminal Code 1995 (Cth); Criminal Code Regulations 2019 (Cth);
Crimes Act 1914 (Cth)
Cases Cited:Nguyen and Phommalysack [2011] VSCA 32; The Queen v Pham (2015) 256 CLR 550; DPP v Tran [2024] VSCA 16
Sentence: Term of imprisonment of 14 years with a non-parole period of eight years and nine months.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | J. Shaw for Plea M. Clark for Sentence | Commonwealth Director of Public Prosecutions |
For the Offender | D. Dann KC for Plea M. Bazzi for Sentence | City Group Legal |
HER HONOUR:
Introduction[1]
[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.
1On 23 September 2022, 268 bottles purporting to be wine but actually containing MDMA arrived at Melbourne International Airport. The bottles contained a total of 266.25 kilograms of pure MDMA, which is 532.5 times the commercial quantity of 0.5kg[2].
[2] Criminal Code 1995 (Cth) s 301.10; Criminal Code Regulations 2019 (Cth) reg 5D, sch 4, item 128.
2The importation was discovered after the Australian Border Force and Australian Federal Police intercepted the consignment on 28 September 2022 and examined the contents.
3You, Youssef Mallahie, have pleaded guilty to aiding and abetting this importation by safekeeping a mobile phone used in connection with the importation between 15 August and 8 October 2022, a total of eight weeks. It is not alleged you had any role to play in the importation other than that. Specifically, it is not alleged that you were involved in organising the importation, nor that you had any contact with the freight forwarding company, MTF Logistics Pty Ltd (MTF).
4The way the mobile phone was connected to the importation was that it was used to make a call to MTF on 4 October 2022. It is not alleged that you made the call so therefore you must have temporarily released the phone to your associates for that purpose. Further, there were four emails to MTF between 15 August 2022 and 3 October 2022 organising the consignment, each of which listed the same two telephone numbers as contact details for the consignee.[3] Those two numbers were found to have been utilised by the mobile phone and in fact the call on 4 October 2022 was made by one of the numbers from a location close to your home. Once again it is not alleged that you sent any of those four emails or that you answered any telephone calls from MTF during that eight-week period.
[3] The consignee was Twelve Bottles Pty Ltd.
5On 8 October 2022 a search warrant was executed at your home address and the mobile phone was found concealed in an exfoliating glove in a bedroom ensuite. You were arrested and interviewed later that day, making no admissions. You did unlock the mobile phone but only after the police told you they had an order compelling you to do so. You appeared concerned as they examined its contents in front of you and asked if they were photographing the names.
6Following the interview, you were charged and remanded in custody where you have been ever since, but as I will explain, most of that time has not been in relation to this matter.
7You indicated an intention to plead guilty at a committal mention on 27 June 2023 and in fact pleaded guilty before me to a single charge of aiding and abetting the importation of a commercial quantity of a border-controlled drug on 13 February 2024.[4]
[4] Criminal Code 1995 (Cth) s 11.2(1) and 307.1(1).
8A plea on your behalf was conducted before me on the same day and it now falls to me to sentence you for your conduct. In arriving at an appropriate sentence, which in your case really means the length of the term of imprisonment, I am required by law to have regard to a variety of factors which I will discuss in these sentencing remarks.[5] Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
[5] Crimes Act 1914 (Cth) s 16A.
Your personal circumstances
9Turning first to your personal circumstances which were outlined in defence submissions and a report from psychologist Jeffery Cummins who assessed you via a video conference on 15 January 2024. I have also drawn from character references from your wife and mother as well as your letter to the court dated 13 February 2024.
10You are now 26 years old and were 25 at the time of the offending.
11You were born in Carlton and your parents, both of whom were born in Lebanon, separated when you were 13. You have not spoken to your father since shortly after you were remanded but you are close to your mother who regularly visits you in custody.
12You told Mr Cummins that your father was never around and that you have never really known him. Your mother told you that he was abusive. Your mother remarried when you were 19 to a man you considered a strict disciplinarian and did not like. That marriage only lasted about four years and was apparently also abusive.
13You have two brothers. Your older brother, Ahmed, who is 30, lives in Sydney. He works in the trucking industry and has never been a drug user, although he did become involved in trafficking methamphetamine with you in 2019, for which offending he received a community corrections order.
14Your younger brother, Adam, is aged 23 and was born with significant disabilities. In her letter to the court your mother says that after Adam was born the family focused on him which left you without the love and care that you needed. You told Mr Cummins that you always felt loved and cared for by your mother, but you did not play a central role in caring for Adam. He is now cared for by your mother through an NDIS package. Prior to your remand you and your wife lived with your mother and Adam at your mother’s home in Roxborough Park. Your incarceration has been very difficult for Adam.
15You completed Year 10 at Hume Central Secondary College and Year 12 VCAL at John Fawkner Secondary College. You told Mr Cummins that you 'went down the VCAL route to stay with your friends.'
16You were a talented football player but stopped when you were 18 because your family showed no interest in your game. You told Mr Cummins that you then started hanging around Broadmeadows railway station and shopping centre where you 'got in with the wrong people'. More recently you claim to have again got in with the wrong crowd when you started gambling at Crown Casino.
17You have a limited work history. You worked in concreting for about eight months when you were 19, but this came to an end when you injured yourself at work. You were apparently prescribed Endone for this injury at some point. More recently you did some paperwork at an NDIS office which your mother runs and you hope to resume working there upon your release.
18You married your wife, Ceyda Kocyigit, when you were 18 years old, and she has been a great support to you. You have maintained daily contact with her whilst in custody. She continues to support you despite saying she was disappointed and dismayed at your offending and has suffered emotionally and financially since your arrest. She said that the stress of your arrest caused her to miscarry in the early stages of a pregnancy.
19Alcohol has not been an issue for you, however, you told Mr Cummins that for about three to four years prior to your arrest you were intermittently dependent on Endone, often abusing it daily and that at age 24 you became addicted to Pregabalin. You told Mr Cummins that you began using illicit drugs at age 18, first cannabis and then cocaine. You said that under your wife’s positive influence you had managed to gradually reduce your dependency on illicit drugs so that by the time of your arrest you were only smoking one joint of cannabis every one to two weeks and using cocaine on weekends.
20You experienced depression, anxiety and panic attacks as a teenager but have never received any ongoing psychiatric or psychological treatment. When you were first arrested you were prescribed an anti-depressant but have not taken it as directed because you do not like the way it makes you feel, and you are also now feeling more mentally stable and self-reliant.
21Prison has not been easy for you as you were moved between different correctional facilities and have spent time in protection which you assume was to do with your co-offenders. You eventually found stability at Ravenhall and have been working as a meal billet. You have completed a number of courses in custody relating to cleaning, warehousing, civil construction, traffic control, construction safety and baking.
22Your mother says that you have been praying since your incarceration and focusing more on your religion. She says that your main goal is to serve your time and to come home to a fresh start with your wife and family.
Objective Gravity of your offending and moral culpability
23Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender. If there was any doubt about the seriousness of your offence the maximum penalty of life imprisonment makes it perfectly clear.
24Your offending was a serious example of a serious offence because you assisted in the importation of over 530 times the commercial quantity of MDMA. This is a huge amount. In pleading guilty you admitted to being aware that there was a substantial risk that a border-controlled drug was to be imported, and whilst there is no evidence that you knew the quantity involved, you must have realised it was a commercial enterprise. You were not naïve to drug offending and the significance of quantities as you were on bail at the time for trafficking what was in fact over a commercial quantity of methylamphetamine, albeit you ultimately pleaded guilty to a trafficking simpliciter charge. In safekeeping the phone you played an important, if limited, role in diverting attention away from your associates and allowing them to distance themselves from the importation. You were clearly a trusted member of the team.
25Further, I am satisfied that you were motivated by reward. As then President Maxwell said in the case of Nguyen and Phommalysack when summarising the principles applicable to sentencing for drug trafficking offences:
‘As a matter of commonsense it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit (the fact that the offender needs money to pay off a debt does not necessarily affect culpability)’[6]
[6] Nguyen v R Phommalysack v R [2011] VSCA 32 at [6].
26In your case the only possible evidence to the contrary is what you told Mr Cummins. He quoted you as saying:
'Like I knew the phone was being used for illegal purposes but I suppose being addicted to various drugs meant that I was associating with drug using and drug-dealing people and in return I'd get my drugs more cheaply.'
27As I have previously outlined, Mr Cummins noted that you had a history of Endone, pregabalin, cannabis and cocaine use. To the extent you were saying that your only reward was going to be the provision of cheap drugs, I am not persuaded that that is true.
28First, it is not at all clear how your associates, who were after all importing MDMA, would have the ability to supply you with your drugs of choice, none of which were MDMA and two of which were prescription drugs. Secondly, again as I have already said, you told Mr Cummins that by the time of your arrest on 8 October 2022 you had reduced your illicit drug use to the point where you were typically only smoking one joint of cannabis a week or a fortnight and using cocaine on weekends. It defies belief that you would expose yourself to the risk of being charged for drug importation simply to obtain cheap drugs which you were only infrequently using. Thirdly, the proposition that you were not motivated by profit does not sit well with your 2019 fraud and drug offending when you clearly were. True it is, as Mr Dann argued, those offences occurred three years before the present offending and motivations might change, but according to the history you gave Mr Cummins, you were also addicted to drugs at the time of those offences. I will return to the details of the 2019 offences in a moment.
29You also told Mr Cummins that you were easily led and found it hard to say 'no', propositions Mr Cummins appears to have accepted, describing you variously as relatively psychosocially immature, naive and unsophisticated for your age. It is a pity that Mr Cummins did not have the benefit of reading the summaries of your 2019 offending as they may have given him pause for thought. Those summaries reveal you to not only be a principal offender in serious criminal activity but also to be, at age 22, persistent, brazen and cunning.
30To illustrate, the fraud offences were committed between 12 September 2019 and 30 October 2019 with a co-offender and involved the use of multiple fraudulent credit cards, multiple identities, and multiple telephone numbers. There was a high level of planning and deception and together you obtained property valued at $60,000 and attempted to obtain a further $71,000 worth of items. At one stage you attempted to enlist the assistance of your older brother, Ahmed, by offering to pay him $500 to collect some cameras you had fraudulently purchased.
31The drug offending was committed only 10 days later when Ahmed, who had just driven you to the airport was intercepted and found to be in possession of 393.4 grams of methylamphetamine with a purity of 69.4 per cent. The methylamphetamine was located inside a sports bag in 15 clip-sealed clear plastic bags, four of which had your fingerprints on them. Police investigations revealed you to be a main player in the drug trafficking and Ahmed’s role to be less than yours. Shortly after you learned that he had been intercepted you messaged your girlfriend complaining, amongst other things, that you had lost '70K' an amount which was consistent with the value of the seized drugs.
32You were arrested in relation to both the fraud and drug offending on 18 December 2019. You were remanded in custody on the fraud offences and charged with the drug offending on 24 March 2020. For the next three years, until you were sentenced on 23 March 2023, proceedings for both sets of offences progressed through the courts with numerous court dates and hearings and you being on bail from 31 March 2020 on the fraud matters and from 28 April 2021 on the drug matters. Indeed, during the eight weeks that you held the phone there were eight separate court listings of the two matters, at least some of which you would have attended. The fact that you committed the present offence whilst these prior matters were still outstanding and whilst you were on trial bail for both of them, is an aggravating feature.
33In my view your explanation to Mr Cummins of being motivated by the desire to obtain cheap drugs and your portrayal of yourself as a person who is easily led, are both attempts to minimise your responsibility. In any event, even if you were motivated by the desire to obtain cheap drugs, it is still reward and hardly lessens your culpability.
34It was also submitted on your behalf that your culpability had to be assessed in light of the fact, you say, you were addicted to and under the influence of drugs at the relevant time. But this was not a spontaneous incident, you had the phone in your possession for eight weeks and released it to your associates on one occasion. You had ample time to reflect on what you were doing, when sober, during those eight weeks.
35Mr Cummins considered your dysfunctional upbringing 'would have played some role in terms of your vulnerability to using illicit drugs' and losing direction after leaving school. He further opined that there was a nexus between your offending behaviour and your illicit drug use, abuse of prescription medication and association with criminal offenders.
36Whilst I take into account your childhood difficulties in a general sense, they were not extreme and certainly not such as to invoke the principles set out in the well-known case of Bugmy. Similarly, I take into account your relative youth, but the significance of that as a mitigating factor is overshadowed by the seriousness of your offending. It can hardly be said that this was an ill-considered or rash offence as it lasted eight weeks, nor given your 2019 offences, that you did not, as a young person, fully appreciate the seriousness or consequences of your conduct on this occasion.
37All up I consider your moral culpability for the present offence to be very high.
Impact of your offending
38I am required to take into account any injury, loss or damage resulting from your offence and any victim impact statement tendered.[7] For offences such as yours there is never a victim impact statement, however, the societal impact of drug offences such as yours cannot be gainsaid.
[7] Crimes Act 1914 (Cth) s 16A (2)(e) and (ea).
Current Sentencing Practices
39To promote consistency of approach in sentencing, particularly the application of relevant principles, I must have regard to sentences imposed in other cases, including, since this is a Commonwealth matter, sentences considered on appeal in other States and territories.[8] Comparable cases may also reveal discernable sentencing practices and sentencing ranges, although no two cases are ever truly the same and there is no single correct sentence.
[8] The Queen v Pham (2015) 256 CLR 550 at [18] and [23] in the case of Commonwealth offences.
40Cognisant of the limitations involved in such an exercise, I have had regard to the table of sentences provided by the prosecution. None of them are really directly comparable to your case, which is not surprising. None of them involved anywhere near the multiple of commercial quantity as here and none of them involved an offender with a similar role to yours or a similar background. In general terms they involved much lesser relative quantities of drugs but greater involvement of the offender. What these differences serve to highlight is the fact that ultimately my duty is to impose a just and appropriate sentence.
Your character and risk of reoffending
41For a young man of your age your criminal history is very concerning, as is its escalating nature. You first appeared in court in 2018 when you were 20 years old in relation to your use of a jet ski. Thereafter you appeared in Magistrates Courts in this State and New South Wales for a range of offences including driving, weapons (including possessing an imitation firearm), and dishonesty. You received a range of dispositions, including bonds, at least one of which you breached, fines, community corrections orders, and in January 2019 two months' imprisonment.
42Unfortunately, that experience of prison did not deter you from committing serious fraud and drug offences later that year, nor did it deter you from committing the present offence. Similarly, neither the 104 days you spent on remand for the fraud offences nor the fact you were on two sets of bail deterred you from committing the present offence. It is hard to know what will deter you in the future.
43You told Mr Cummins that you are determined to remain off illicit drugs when you are eventually released from custody. As I have explained, I am not satisfied that your desire to obtain drugs was the cause of your offending. In your letter to me you also claim to be ashamed and 'truly sorry', but at the same time maintain that you were being 'used' by others whom you wrongly believed cared for you. In my view this was another attempt to minimise your culpability and I treat your letter with caution.
44In your favour you have made the most of your time in custody and you do have the support of family and work with your mother available to you when you are released.
45Your counsel submitted that your prospects of rehabilitation are good. I accept that you are still relatively young and there is time for you to change and lead a good life, but based on your past I am not at all optimistic about the prospect of you doing so. Nevertheless, I will allow for your rehabilitation by the setting of as low a non-parole period as possible, consonant with the seriousness of your offending.
Plea of Guilty, co-operation and remorse
46You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and did so at a very early stage. In so doing you facilitated the course of justice, took legal responsibility for your crimes, and avoided the need for a trial. Given you indicated your intention to plead guilty in June 2023, I am not satisfied the enhanced benefit of a plea made during the pandemic applies to any significant extent, if at all.
47I accept you are sorry for the hardship your incarceration has caused your family, but in view of the chronology of all your offending and your attempts to downplay your culpability, I am not satisfied that your plea of guilty is accompanied by anything more than very limited remorse in the sense of a true acknowledgment of the societal harm caused by offending such as yours and a commitment to change.
Other mitigating factors:
48I accept and take into account that your imprisonment will be a hardship for your mother, brother and wife, but there is no reason to think that they will not cope, and I consider this matter has limited weight. I also take into account that your time in custody has been harder by virtue of you being in protective custody for some of it and that the worry about your family will be an additional burden for you.
Purposes of Sentencing
49I am obliged under Commonwealth law to ensure that my sentence achieves the sentencing purposes of adequately punishing you, deterring you and others from committing this sort of offence and promoting your rehabilitation. General principles require that I not impose a more severe sentence than is necessary to achieve those sentencing purposes. Further, given the sentence of 18 months with a non-parole period of 12 months you received on 23 March 2023, my sentence must not offend the principle of totality, meaning you must not be punished any more than is proportionate and appropriate to your overall criminality. That sentence expired on 14 February 2024 and Mr Dann submitted that you have lost the opportunity for concurrency. However, in my view little, if any, concurrency would have been warranted given the chronology of offending.
50General deterrence is a paramount sentencing consideration for drug offences such as yours no matter what the level of involvement.[9] Given that such serious enterprises often depend on a large number of players, it is imperative that those who might be tempted to participate, even on the periphery, be deterred from so doing by the knowledge that if caught they will receive a significant sentence of imprisonment.
[9]Nguyen v R Phommalysack v R [2011] VSCA 32, 681 – 3 (per Maxwell P), also the comments of Niall JA and Boyce JA in DPP v Tran [2024] VSCA 16 at [7].
51My sentence must also operate to deter you from further offending, as clearly nothing has so far. It must also promote your rehabilitation by the setting of an appropriate non- parole period.
Sentence
52Weighing up the competing considerations as best I can, you are convicted on Charge 1 and sentenced to a term of imprisonment of 14 years. I set a non-parole period of eight years and nine months. That sentence commences today. However, I declare that you have served a total of 98 days pre-sentence detention, not including today, and I direct that that declaration be entered in the records of the court and the period be deducted administratively.
Section 6AAA
53If you had not pleaded guilty to that charge, the single charge, and been found guilty by a jury, I would have sentenced you to a term of imprisonment of 18 years with a non-parole period of 11 years.
54I don't think there are any other orders or anything that I need to make, are there?
55MR BAZZI: No, Your Honour.
56HER HONOUR: Mr Mallahie, you understood the sentence? So it's a sentence of 14 years with a non-parole period of eight years and nine months. I will adjourn the court.
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