Director of Public Prosecutions v Mallahie
[2022] VCC 1972
•14 November 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-21-00866
| THE QUEEN |
| v |
| AHMED MALLAHIE |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2022 | |
DATE OF SENTENCE: | 14 November 2022 | |
CASE MAY BE CITED AS: | DPP v Mallahie | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1972 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Traffick methylamphetamine – deal with proceeds of crime – quantity of drugs is two and a half times the commercial quantity – no intention to traffic in a commercial quantity
Legislation cited: Criminal Procedure Act 2009; s145, s208, s242; Sentencing Act 1991; s5(4C)
Cases cited: Boulton v The Queen [2014] VSCA 342; Worboyes v The Queen [2021] VSCA 169
Sentence: Convicted and sentenced to 71 days imprisonment with a two-year community corrections order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Paganis | Director of the Public Prosecutions |
| For the Accused | Mr J. Brancato | Gallant Law |
HIS HONOUR:
1 Ahmed Mallahie, on 8 November 2022, you conducted a sentence indication hearing pursuant to s208 of the Criminal Procedure Act. The prosecution tendered a Prosecution Summary for Sentence Indication dated 7 November 2022. The sentence indication was sought in respect of two charges:
(1) Trafficking methylamphetamine.
(2) Dealing with proceeds of crime which was $2,210 in cash.
2 Each of the charges have imprisonment as maximum penalties. I gave a sentence indication that the penalty would not exceed a combination sentence of imprisonment and a community corrections order (“CCO”). In effect you have had 71 days pre-sentence detention plus one year of imprisonment combined with a CCO as the highest potential penalty for these charges. You stated you would plead to the two charges after considering that sentence indication.
3 On 14 November 2022, that is today, you pleaded guilty to Charge 1 on indictment No.K12905323.1; trafficking of methylamphetamine, this charge has a maximum penalty of 15 years imprisonment.
4 You consented to a related summary charge, that is summary charge 3, dealing with the property suspected to be proceeds of crime being heard at your plea hearing, pursuant to ss145 and 242 of the Criminal Procedure Act. You pleaded guilty to that charge. That charge has a maximum penalty of two years imprisonment.
5 You have admitted your prior criminal history. You have had four court appearances between 2013 and 3 May 2019. All of your prior criminal history is for driving offences and breaches of the court dispositions for those offences. Relevantly, the offence in this case were committed whilst you were serving a one year CCO imposed on 3 May 2019.
Circumstances of your offending
6 The prosecution tendered a Summary of Prosecution Opening, dated 11 November 2022. This is Exhibit “A” on the plea hearing.
7 On 9 November 2019, you drove your younger brother, Youssef to Tullamarine Airport. Youssef was going to Bali for a holiday. You drove Youssef to the airport in a Toyota Hilux registered ATB-319. This vehicle was registered to Youssef, your brother.
8 Much later on the same day, you were in the Toyota Hilux, with a Omayma Said and parked in an industrial estate in Coolaroo. This area is known to police as an area for drug activity.
9 At approximately 10.00 pm on 9 November 2022, police approached the vehicle registered number ATB-319. There were no persons seated in the front of the vehicle. The windows in the rear part of the vehicle were obscured by condensation. The police located you and Ms Said in the rear seat of the vehicle.
10 After you got out of the car you were heard speaking on the phone in Arabic. You were speaking to your brother, Youssef. You then went to the front passenger door, opened it, removed a Puma bag and placed it in a grassy area near a street light in that area. The police did not observe this movement of the bag from the vehicle to the grassy area.
11
The Puma bag was found to contain 393.4 grams of mixed methylamphetamine. Further analysis of the drug determined there was
273 grams pure methylamphetamine. This is two and a half times the commercial quantity for that drug.
12 The $2,210 was found in your possession and was reasonably suspected of being the proceeds of crime.
13 For the purpose of the plea the prosecution accepts that you did not have the requisite intention to traffic in a commercial quantity. The prosecution's case against you is that you were in possession of a substantial quantity of drugs for sale and that you were complicit with your brother, Youssef, in this process.
14 You were arrested and interviewed on 10 November 2019 and that interview was digitally recorded. You initially denied knowledge of the black Puma sports bag contained methylamphetamine. You however later confirmed that:
(a) you drove your brother to the airport the day before;
(b) you had located the Puma sports bag in his vehicle;
(c) you looked inside the bag;
(d) the Puma sports bag contained methylamphetamine and;
(e) you had received a phone call from your brother, Youssef, resulting in you going to the front of the vehicle and removing the Puma sports bag and placing it outside the car.
15 You were remanded in custody on that day, 10 November 2019, and bailed on 20 January 2020. This accrued 71 days of pre-sentence detention.
Personal circumstances
16 At the time of the offending you were 26 years old. You are now 29. Your counsel submitted that you are of Islamic faith and a very active member of your Islamic community. This offending would be contrary to every tenet of your faith.
17 You parents are separated. You live with your mother. You father cares for your youngest brother, who suffers from chronic epilepsy and behavioural changes.
18 You work as a truck driver. You also assist your mother in her NDIS duties, including working on a farm which she has leased in recent times.
19
You are engaged to Ms Hamdache and plan to marry her in January 2023
You also mentor youth at your mosque.
20
I have been informed by your counsel that since your release on bail on
20 January 2020, you have reported daily to the Broadmeadows Police Station. You have not offended since January 2020.
21 The court has been informed of minimum information about your life. Your role in this offending is opaque. Your brother Youssef is, on the basis of the prosecution summary, the main player in this drug offending.
Sentencing considerations
22 The basic purpose for which a court may impose a sentence of just punishment, deterrents both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances.
23 I am also required to balance the interest of the community denouncing your criminal conduct with the interest of the community seeking to assure as far as possible, that you as an offender as rehabilitated and reintegrated into society.
24 I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time. I have considered the statistics and the current sentencing practice, mindful that each case must be considered in the light of its own particular circumstances, and many of those cases would be distinguishable from your case, as indeed they are from one another.
25 Of course current sentencing practices is only one of the issues I need to take into account.
26 I am also mindful of the provisions of the Sentencing Act and in particular, s5(4C), which directs the Sentencing Court to consider whether a community corrections order can achieve the purpose for which a sentence is to be imposed. I have reviewed the case of Bolton in considering if a community corrections order would be appropriate in your case. I note here that you were on a CCO when you committed these offences.
27 You have pleaded guilty to these charges. You plea of guilty was indicated at a late stage. Your plea does have utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
28 Your plea is also a clear acknowledgement by you that you accept the responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty for these charges indicates and demonstrates some remorse on your part.
29
Your plea is also entered in times when the backlog of trials is significant.
In your case your trial is listed together with your brother, Youssif for
23 November 2022. Nevertheless, you are entitled to some amelioration in a sense on the basis of what is known as the Worboyes discount.
30 The delay between your arrest and today is more than three years. For most of that time you have been reporting daily whilst on bail. The reporting condition has some restriction on your ability to go about your life freely. Further, the period of delay appears to be a period where you have embarked on rehabilitation and have a long period of time of not offending or re-offending. In those circumstances, the delay is a mitigatory factor when considering the imposition of a further custodial penalty.
31 The offences of trafficking drugs in combination with dealing in the proceeds of crime are serious offending. This court constantly sees the pernicious results and impact the trade in methylamphetamine has had on our society and continues to have on our society. I have assessed your offending as low to mid-range due to the following indicators:
(1) It all occurs on the one day;
(2) your involvement is tantamount to a courier/possession of the drug, itself;
(3) your DNA or fingerprints are not found on the drugs or the containers with the drugs in them;
(4) you are in your brother's vehicle with your brother's drugs;
(5) the quantity is two and a half times the commercial quantity and;
(6) the lack of guile, that is your lack of guile and relevant criminal history is a factor I take into account.
32 The sentencing principles of general and specific deterrence, protection of the community, rehabilitation and just punishment dictate that the appropriate sentence in your case is a combination of imprisonment and a community corrections order with unpaid community work as the punishment element.
33 Would you stand please?
34 On charge 1, you are convicted and sentenced to two years community corrections order with the following conditions:
· a) You are to be supervised.
· b) You are to do 300 hours of unpaid community work, to be completed by 10 November 2023; and
· c) Judicial monitoring, which is you will attend here in person on 10 February 2023 at 9.30 am, so I can check how you are going.
35
You are to report to the Broadmeadows Community Corrections Centre within
two days of today.
36 On summary charge 3, you are convicted and sentenced to 71 days imprisonment. That is a total effective sentence of 71 days. I declare you have served the 71 days pre-sentence detention in respect of that sentence and I have signed the forfeiture order.
37 Now, what I want to tell you and make sure you understand fully before you consent to that CCO, Mr Mallahie, is this: if in the next two years you breach this CCO in any way whatsoever, you come back here before me and you face the potential for 15 years imprisonment because that is the maximum, You understand that?
38 ACCUSED: I do. I do.
39 HIS HONOUR: Does your client consent to the CCO?
40 MR BRANCATO: Yes. He does, Your Honour. I sought those instructions.
41 HIS HONOUR: Pursuant to s6AAA in this case, but for your plea of guilty in respect of Charge 1, in particular I am talking about your sentence, would have been three years imprisonment with a non-parole for two years imprisonment. That is on the charge of simplicity, not trafficking in commercial quantity.
42 I will just wait for this document to be printed. You have to sign it. Ms Chapman, I have signed the forfeiture order. It is here. Thanks. I will just pass that down and your client can sign that.
43 MR BRANCATO: Thanks, Your Honour.
44 HIS HONOUR: Thank you. Mr Mallahie, you can get a copy of that Community Corrections Order and stick it up on the inside of your wardrobe door, so that every time you open it to get dressed you've got a reminder. I just want to let you know, you've probably worked this out for yourself but the 71 days you've spent in custody have now been spent. If you breach and come back and I sentence you, it's day one. All right? You stay away from the drugs.
45 HIS HONOUR: Thanks, counsel.
46 MR BRANCATO: Thank you, Your Honour.
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