Director of Public Prosecutions v Mariam
[2023] VCC 244
•22 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01972
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HADI MARIAM |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 May 2022, 26 September 2022, 10 February 2023 |
DATE OF SENTENCE: | 22 February 2023 |
CASE MAY BE CITED AS: | DPP v Mariam |
MEDIUM NEUTRAL CITATION: | [2023] VCC 244 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Trafficking in drug of dependence, cultivation of narcotic plant, theft, non-prohibited person possess Category A longarm that is not registered, possession of drug of dependence
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:Sentenced to 25 days imprisonment in combination with a 30-month community correction order and a $500 fine
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Karamicov | Office of Public Prosecutions |
For the Accused | Mr M. Kelly | MKZ Criminal Law |
HER HONOUR:
1Hadi Mariam, you have pleaded guilty on indictment to single charges of trafficking in a drug of dependence, cultivation of a narcotic plant, theft, non-prohibited person possess a Category A longarm that is not registered and possession of a drug of dependence. You have also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail.
2In sentencing you for these crimes, I must have regard to the maximum penalties for the offences you have committed. Those maximum penalties are as follows:
a)Trafficking in a drug of dependence - 15 years imprisonment.
b)Cultivation of a narcotic plant -15 years imprisonment.
c)Theft - 10 years imprisonment.
d)Non-prohibited person possess a Category 1 longarm that is not registered - two years imprisonment.
e)Possession of a drug of dependence - five penalty units; and
f)commit an indictable offence whilst on bail - carries a maximum penalty of three months imprisonment.
3The maximum penalties reflect the seriousness with which Parliament regards these offences.
The offending
4The circumstances of your offending were set out in a document entitled 'Amended Summary of Prosecution Opening for Plea' dated 26 September 2022. This is an agreed document and it represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
5I will not repeat the entire summary, as it is a matter of record, but in brief terms, the offending that gives rise to these charges arose from a police investigation code named ‘Operation Sky Ignite 2019'. Inclusive of yourself, five persons were charged with various drug, firearms and dishonesty offences. Your brother, Omer Mariam, is said to be the principal offender and is yet to be sentenced.
6Your offending in relation to charge 1, trafficking a drug of dependence, namely methylamphetamine, occurred between the dates of 6 March 2020 and 21 July 2020. Victoria Police covert operatives were deployed on 19 March 2020.
7During the dates charged, you would regularly record details of transactions relating to money received and paid for drug supplies by both you and your brother in the ‘notes’ application on your phone. This forms part of the evidence against you, for example, on 6 March 2020, you recorded '6 x 28, big rocks, 1 bag', consistent with the weight and presentation of methylamphetamine.
8On 21 June 2020, you recorded numbers and words on the notes application consistent with 143.88 grams of methylamphetamine. On 20 June 2020, your brother, Omer Mariam, made telephone calls facilitating a drug transaction in Geelong. It was you that attended the transaction and bank records dated 20 June 2020 show $5,000 deposited into your account.
9On 25 June 2020, ‘Covert Operative 300’ engaged with your brother regarding methylamphetamine your brother had offered for sale on 23 June 2020 using the Wickr application. The covert operative was added to the Wickr message group, in which you were also included.
10Over the course of the day, your brother Omer sent messages to the Wickr message group identifying the time and place of the drug transaction, as well as the quantity and price of methylamphetamine. You completed the transaction according to your brother's instructions, delivering 14 grams of methylamphetamine to ‘Covert Operative 300’, who provided $3,650 as payment.
11The methylamphetamine was later analysed and returned a positive test result of 74 per cent at a weight of 14 grams.
12On 26 June 2020, your brother again engaged with ‘Covert Operative 300’ on the Wickr message group offering methylamphetamine. On the same day, Omer Mariam engaged in a telephone conversation facilitating the sale of methylamphetamine and tasked you with attending the sale. On 28 June 2020, your brother arranged for the payment for drugs and for the buyer to transfer the money into your bank account. Records dated 28 June 2020 show $900 deposited into your bank account.
13That same day, Omer Mariam organised for you to attend a sale of methylamphetamine to the value of $3,700. On 29 June 2020, your brother engaged in telephone conversations relating to the sale of methylamphetamine and provided your telephone number to the buyers to facilitate the transaction. Bank records dated 29 June 2020 show two deposits of $500 into your bank account. On 30 June 2020, your brother engaged in telephone conversations relating to the sale of 112 grams of methylamphetamine, where he advised that you would facilitate the sale. You are identified in SMS messages relating to that sale.
14On 1 July 2020, your brother engaged in six telephone conversations relating to the sale of 28 grams of methylamphetamine where he referenced your involvement and quoted the sale price of $7,500.
15On 2 July 2020, you engaged in a series of messages relating to the sale of 28 grams of methylamphetamine. Your brother arranged a meeting for 3 July 2020 with ‘Covert Operative 300’ over Wickr to do the 'same thing as last time'.
16On 3 July 2020, your brother engaged with ‘Covert Operative 300’ using the Wickr application to arrange to sell 56 grams of methylamphetamine. You were responsible for the delivery and collecting $4,000 in cash as payment. Afterwards, ‘Covert Operative 300’ discovered that only 28 grams had in fact been supplied instead of the agreed 56 grams.
17All attempts to then contact you or your brother went declined or unanswered. Your brother then changed his wickr handle. The substance sold to ‘Covert Operative 300 was identified to be methylsulfonylmethane, weighing 27.9 grams. This is colloquially known as a drug ‘rip off’.
18On 5 July 2020, you engaged in a series of SMS messages relating to the sale of 14 grams of methylamphetamine.
19On 7 July 2020, you engaged in a series of SMS messages relating to the sale of 14 grams of methylamphetamine for $5,000. You again engaged in a series of SMS messages on 8 July 2020 with an associate attempting to organise the sale of 14 grams of methylamphetamine.
20On 9 July 2020, your brother engaged in a telephone conversation with a buyer stating that he needed money urgently, with the buyer informing him that he was just about to see you. This is consistent with the previous conversation relating to the sale of methylamphetamine facilitated by you.
21On 20 July 2020, you engaged in a series of SMS messages relating to the sale of 2 grams of methylamphetamine.
22On 15 July 2020 and 18 July 2020, you received SMS messages from drug buyers and drug suppliers respectively asking for the provision and sale of drugs. At the time of these communications and transactions, you were on an undertaking of bail in respect to an unrelated matter during the relevant period and that forms the basis for summary charge 3, committing an indictable offence whilst on bail.
23On 13 July 2020, police investigators executed search warrants at 56 Diane Avenue, Craigieburn and 96 Wheatsheaf Road, Glenroy, known as Regal Real Estate. Amongst other items which were referred to in the Crown document, located and seized at 56 Diane Avenue, Craigieburn, were 72 cannabis plants weighing a total of 58.36 grams, an electrical bypass and three firearms.
24On that day, an electrician attended the premises and identified and removed an illegal electrical bypass. The total energy cost of the illegal energy usage was calculated to be over $4,000. This forms the basis for charge 3, theft.
25You take responsibility for one of the three firearms located by police at the premises, a Remington pump action rim fire rifle classified as a Category A longarm, which had previously been reported as stolen. This forms the basis for charge 4, non-prohibited person possess a Category A longarm that is not registered. You are a non-prohibited person under the Firearms Act.
26The premises at 96 Wheatsheaf Road, Glenroy, was a real estate agency operated by alleged co-accused Antoine Barkho. It is the Crown case that he was responsible for renting 56 Diane Avenue to your brother for the purpose of cannabis cultivation. You had been identified at the Diane Avenue address on 13 July 2020 and subsequent investigations revealed the presence of your DNA on a red mouthpiece located in the lounge room, a can of drink and the handle of the Remington pump action rim fire rifle, the subject of charge 4. You had paid the rent for this property at your brother's behest on one occasion. Investigating police completed a download of your iPhone which revealed an association with Diane Avenue, Craigieburn. It is these facts, combined with the cannabis plants located at 56 Diane Avenue, which form the basis for charge 2, cultivate cannabis.
27You were arrested by police on 21 July 2020 at your home. A search of the premises located a number of items relevant to the police investigation, including $760 in cash, 2 grams of cannabis and two ziplocked bags containing approximately 18 grams of methamphetamine.
28The cannabis located at this time forms the basis for charge 5, possess a drug of dependence.
29When interviewed by police, you answered 'no comment' as is your right.
30The total quantity of methylamphetamine seized by police was 36.9 grams. The ziplocked bag seized during the search was identical in appearance to the packaging used by you, to contain the methylamphetamine sold to covert operatives on 25 June 2020 and also forms part of the basis for charge 1, trafficking a drug of dependence, namely methylamphetamine.
Gravity of the offending
31In terms of the gravity of the offending, you have no prior criminal history.
32The possession of 2 grams of cannabis, the subject of charge 5, I see as relatively minor.
33In terms of assessing the charges of cultivating a drug of dependence, namely cannabis, and the theft of electricity, which appear to go hand in hand, your role on the available evidence would appear to be relatively minor. There is no evidence that you are aware of the theft of electricity, hence your plea of guilty to this charge has additional significance.
34In terms of the possession of a Category A longarm, the subject of charge 4, you take responsibility for this charge in circumstances of your DNA being linked to that item. It was located at the premises where the cultivation of cannabis was taking place and hence is linked to other serious criminal behaviour, elevating the seriousness of that offence.
35Charge 1, trafficking in a drug of dependence, is clearly the most serious charge. In the circumstances of your case and under a quantity base sentencing regime, the quantity of drugs is a significant indicator of the seriousness of a drug offence. You are directly connected to the sale of at least 203 grams of methylamphetamine over a four month period.
36It is somewhat obvious to state that the pernicious trade in methylamphetamine has an enormous and devastating impact on the community, in terms of general health, addiction and the criminal behaviour which results. I do accept that in the terms of your offending, it was at the behest of your brother and that you were effectively doing his bidding. Nevertheless, the role you did play was an essential one. In your case, profit was the motive, you are not a user of drugs. Sentencing principles of both general deterrence and denunciation loom large.
Plea of guilty
37The Sentencing Act 1991 obliges me to take into account the stage at which you entered your guilty pleas.
38This matter resolved by way of case conference, which is part of the County Court's response to the COVID-19 pandemic and the resulting backlog of trials. Case conferences are designed to discuss pathways to resolution where possible, or to narrow the issues prior to listing any trial. In your case, this process saw an adjustment to the indictment and the facts relied on by the Crown in your favour.
39You had in fact previously made an offer at committal proceedings to plead guilty to one charge of trafficking methylamphetamine, one charge of cultivating cannabis and one charge of being an non-prohibited person in possession of a Category A firearm. This offer was not accepted by the Crown at that time. In all the circumstances, it is conceded that your plea of guilty should be considered as having been entered at the earliest opportunity and I do so.
40There is also clear value in saving witnesses the need to give evidence and the utilitarian value in saving the community the time and expense of contested proceedings.
41Your decision to plead guilty in the context of the COVID-19 pandemic does have additional utilitarian value as it provides certainty and finality to all parties, in circumstances where the courts operations have been significantly disrupted and many trial dates remain unfixed. On the materials overall before me, I do accept that you are remorseful for your conduct. These factors will be taken into account in your favour.
Personal circumstances
42In terms of your personal circumstances, tendered on your plea was a psychological assessment report authored by consultant psychologist
Luke Armstrong, dated 23 May 2022.43In that report Mr Armstrong helpfully sets out your personal background. You are now 25 years of age. You were 22 years old at the time of the offending. Your relative youth at the time of your offending is also relevant to the sentencing exercise. There remains a basis for some focus on rehabilitation.
44You are one of four children. You have a non-identical twin sister and two older brothers, Omer, your co-accused and Haisam. You have a strong relationship with your older siblings and look up to both of your older brothers.
45You describe your relationship with your parents as supportive. Your mother was born in Lebanon and immigrated to Australia with her parents at the age of one. Your father immigrated to Australia in his early twenties. You believe your father served in the military prior to his arrival in Australia. Upon arrival in Australia, your father sold cars before maintaining a long-term position as a national supervisor for a supermarket trolley contractor.
46You recall your father working almost seven days per week and to remaining in this work until you reached around 15 years of age. You believe your father also built and sold houses. Your father now assists your brother, Haisam, in running the trolley business.
47You were apparently a premature baby and you were identified by the hospital as suffering probable cognitive delays. You were confirmed to be developmentally delayed and provided with a teacher's aide whilst at school.
48You largely grew up in the Roxborough Park area. Your mother was a fulltime mother and was always home. You enjoyed your time at school as you had many cousins who attended alongside you and looked after you.
49You state that there was no violence at home and your parents were supportive, although you did not see your father often due to his work hours. You would spend considerable time with extended family.
50You are of Islamic faith. You attended the private Ilim College from Year 7 to 9. You report that, before long, you had made the decision that you wanted to be an electrician. You lost interest in school and made requests of your parents to leave.
51You would assist your father at least once during the school week and on Saturdays in trolley retrieval. You were paid an ongoing allowance for doing so.
52You went on to complete VCAL and attended courses designed to prepare you for trade school as you remained highly motivated to become an electrician. You completed a pre-apprenticeship course over six months fulltime. You initially struggled to find work after completing the course. A distant relative eventually offered you a job as a labourer, intending to offer you an electrical apprenticeship. You were placed on an apprenticeship wage, however, were never signed on as an apprentice. You report working 11 to 14 hour days for $400 per week and resigned after six months.
53You became disillusioned with your aspirations to become an electrician, although you felt under pressure to be employed. You obtained a security licence and then obtained work in that industry over a two to three year period.
54In 2019, you were charged with affray and were immediately suspended from your security licence. You made attempts to return to the electrical trade in 2019 and again attained a job as an electrical labourer, hopeful of securing an apprenticeship. You lost that position after a conflict with your employer.
55You immediately sought employment by obtaining an Uber licence, however your licence was cancelled as a result of the unresolved affray charge. You obtained a traffic control licence, however the onset of the COVID-19 pandemic precluded any work opportunities. You became increasingly isolated as a result of having no employment and unlimited social networks during the COVID-19 pandemic. These are other factors giving context to your offending.
56Of significance in the report of Mr Armstrong is his findings as to intellectual functioning. You have an IQ of 67. Mr Armstrong finds your general cognitive ability to be within the extremely low range of intellectual functioning. Your verbal comprehension and perceptual reasoning are in the borderline range and your ability to sustain attention, concentrate and exert mental control is in the low average range. Mr Armstrong opines that:
'A number of converging circumstances had a causal connection to your offending behaviour. This includes your then admiration for your brother, unemployment, disillusionment and identified deficits in reasoning, social judgment, appreciation of risk and problem solving'.
57Mr Armstrong states that your problem-solving capacity at the time of the offending was somewhat delayed or impacted by extremely low intelligence. I accept that you were vulnerable to your brother's requests of you in this set of circumstances. In addition, Mr Armstrong opines that you would present as a young and especially vulnerable offender within the prison system. I accept this is likely to be correct and this is another factor which I take into account.
58I accept that this report gives a basis to reduce your moral culpability for the offending and provides for some moderation in the weight that should attach to the principles of both general and specific deterrence. I note that
Mr Armstrong's report was not the subject of challenge.Prospects for rehabilitation
59In terms of your prospects of rehabilitation, as a direct result of your offending, you did spend some 25 days in custody. Accepting Mr Armstrong's opinion about your vulnerability in this setting, due to your cognitive difficulties, and the fact that there has been no offending since your release on bail on 14 August 2020, a period of some two years and six months, it would appear that your remand did have some impact.
60I accept that this period of 25 days is capable, in part, of acting as both a sanction in the future and a deterrent to the future. In addition, Mr Armstrong finds that you present a low risk of reoffending. You have never used drugs or alcohol and were never part of a negative peer group. Your wrongdoing appears to have occurred, in part, under the influence of your brother. You have casual employment in traffic management and also assist your father in the family business, collecting trollies at Gladstone Park Shopping Centre.
61You are otherwise well supported by family with whom you reside. Your sister, Hibah, has provided a reference in which she observes your remorse and regret for your offending. She describes you as quiet, humble and humorous and is proud of you.
62Your brother, Haisam and friend, Ibrahim, have also provided references, which I have taken into account.
63You are in a committed relationship of some two and a half years and hope to marry and have children. Your partner, Ayat Taleb, has provided a reference and describes your offending as out of character. She also describes you as remorseful and otherwise as genuine, honest, determined and hardworking.
64You would appear to have good prospects for rehabilitation.
Sentencing submissions
65Your counsel submits that all relevant sentencing considerations will be reflected in the imposition of a community correction order in combination with a prison term.
66Section 44 of the Sentencing Act 1991 states that when sentencing an offender in respect of one, or more than one offence, the court may make a community correction order, in addition to imposing a sentence of imprisonment, only if the sum of all the terms of imprisonment to be served after deduction of any period of custody that under s18 is reckoned to be a period of imprisonment or detention already served, is one year or less.
67The Crown submitted that a head sentence with a non-parole period was more appropriate.
68Mr Armstrong was the first to formally identify an intellectual disability. In order to be better informed, at your initial plea hearing on 26 September 2022, I ordered that you be assessed as to your suitability for a community correction order and as to whether or not a justice plan should attach.
69As of 30 September 2022, you do formally have a state of intellectual disability within the meaning of the Disability Act 2006. A disability overview report dated 12 January 2023 speaks of your remorse for your offending and indicates a referral for additional supports to the National Disability Insurance Scheme.
70A justice plan of the same date recommends that you engage with Disability Justice through a coordinator from the Department of Families, Fairness and Housing and that you participate in the referral process to relevant services and attend and participate in recommended programs. It is further recommended that there be a referral to Forensic Disability Clinical Services or other appropriate service and that you participate in the assessment process and any programs as recommended.
71An assessment outcome report dated 30 January 2023 assesses you as being of low risk of reoffending. You are found suitable for a community correction order.
72These reports were released to the parties in advance of your further plea held 10 February 2023. While sentencing submissions on your behalf remain the same, having had the opportunity to absorb the reports commissioned by the court, the Crown conceded that a combination sentence would properly reflect all relevant sentencing considerations.
Sentencing
73I do make the ancillary orders as sought for the disposal of cannabis and the iPhone.
74The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation, as well as protection of the community. In sentencing you, I must have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.
75I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, where possible, that offenders are rehabilitated and safely reintegrated into society.
76I have taken into account the sentencing guidelines referred to in section 5 of the Sentencing Act 1991 were relevant to your case. I have taken into account the current sentencing practices for the offences to which you have pleaded guilty and the important principles of both totality, proportionality and parsimony.
77For the summary charge of committing an indictable offence whilst on bail, you are convicted and fined the amount of $500.
78For charge 5 on the indictment, possess a drug of dependence, you are convicted and discharged.
79For the remaining charges on the indictment, I propose to impose an aggregate sentence, as I am satisfied that the offences are founded on the same facts or form or a part of a series of offences of same or similar character.
80Therefore, in relation to the remaining charges, those numbered 1, 2, 3 and 4, you are convicted and sentenced to 25 days imprisonment, of which 25 days are reckoned as having already been served. In addition, and adopting the recommendations in the assessment outcome report, you are convicted and placed on a community correction order for a period of 30 months -that period being reduced because of your extended period of compliance on bail. During the 30 month period, you are to complete 150 hours of community work and to comply with the Justice Plan dated 12 January 2023. No other services were recommended to me.
81In addition to the conditions that I have imposed, there are standard conditions. The first and foremost is that you must not commit any other offences during the 30 month period which could be punished by imprisonment. You must report within two working days to the nearest Corrections office. You are required to advise your Corrections office of any change of address of where you are living or working and you must do so within two clear working days. It is a term of all community correction orders that you must submit to visits as directed and obey all of the instructions and directions of the Corrections officer. You cannot leave the state of Victoria without prior permission of your Corrections office.
82In my view, this order presents you with a chance to change your life or continue to change your life in a positive fashion, should you choose to take up that opportunity and the supports that should be made available through Disability Justice Services. This order can be breached if you do not comply with it in terms of the conditions or reoffend by an offence punishable by imprisonment whilst it is in place. If these events do occur, you will have to appear before me for breaching the order and I may be required to resentence you on the charges, as well as to sentence you for a charge of breaking the order.
83I cannot place you on that order unless you agree to it. I will give you the opportunity to speak to Mr Kelly in a moment.
84Before I do so, s6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. This is somewhat artificial, given the other sentencing considerations I have taken into account. However, if not for your pleas of guilty, I would have sentenced you to a total effective sentence of 20 months imprisonment in combination with a corrections order of two years duration. So with any luck that corrections order will not be too far away
85Mr Kelly and I will ask that if you could just approach and discuss ‑ ‑ ‑
86MR KELLY: Certainly.
87HER HONOUR: ‑ ‑ ‑ that with Mr Mariam?
88MR KELLY: As Your Honour pleases.
89HER HONOUR: Anything I missed either of you?
90MS KARAMICOV: No, Your Honour.
91MR KELLY: Thank you, Your Honour.
92HER HONOUR: Thank you. Mr Mariam, you might find that the services that may be available to you through Disability Justice provide you with things you have not even thought about, that might help you into the future. So apart from the fact that it is part of the conditions of the order that you have just signed, you should explore with them what might else be available to you. I accept that you are well supported by family and your relationship, but you just might find that there is a few things that are really helpful to you, because in the nicest possible way, I do not want to see you again and at the moment, this order hangs over your head for 30 months.
93So I am going to see you if you break it by getting into trouble again or break it by not doing it and I do not want that. Got me?
94OFFENDER: Yes, Your Honour.
95HER HONOUR: All right. Ms Karamicov thank you very much for your assistance, very much appreciated.
96MS KARAMICOV: Thank you, Your Honour.
97HER HONOUR: Mr Kelly, thank you very much for yours.
98MR KELLY: Certainly, Your Honour, thank you.
99HER HONOUR: And that is it for today. Very well, close the court till 10 o'clock tomorrow. Thank you.
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