Director of Public Prosecutions v Mawas

[2020] VCC 149

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01727

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMAL MAWAS

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2020
DATE OF SENTENCE:	21 February 2020
CASE MAY BE CITED AS:	DPP v Mawas
MEDIUM NEUTRAL CITATION:	[2020] VCC 149

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:

Sentence:36 months imprisonment; non-parole period of 25 months; $750 fine; s 6AAA: 48 months with non-parole period of 39 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	OPP
For the Accused	Mr G. Chisholm	Furstenberg Law

HIS HONOUR:

1Jamal Mawas, you have pleaded guilty to the following offences:

i.trafficking in a drug of dependence namely 1,4-butanediol. The maximum penalty for this offence is 15 years' imprisonment;

ii.trafficking in a drug of dependence namely MDMA. The maximum penalty for this offence is 15 years' imprisonment;

iii.possession of a drug of dependence namely methyl amphetamine. As it is conceded that the possession was for your personal use, the maximum penalty for this offence is one year's imprisonment or a fine of 30 penalty units;

iv.possession of cannabis in a small quantity. The maximum penalty for this offence is a fine of up to 5 penalty units; and

v.handle stolen goods. The maximum penalty for this offence is 15 years' imprisonment.

2In addition, you consented to me taking into account two summary offences

vi.possession of a prohibited weapon, being a Taser. This carries a maximum penalty of 240 penalty units or two years' imprisonment;

vii.possession of cartridge ammunition without a permit. The maximum penalty for this offence is 40 penalty units.

3You have admitted extensive prior convictions including five previous convictions for trafficking drugs of dependence. I shall say more about these in the course of these remarks.

4The prosecution tendered a prosecution summary of opening on plea as
Exhibit A. A summary of your offending is as follows.

5The police executed a search warrant at your home on 6 March 2019. You were present during the execution of the warrant. Police found:

·two bottles each containing 1,4-butanediol. The total quantity of the substance was 1,110.2 grams. The purity of the drug was not determined. The traffickable quantity of a substance containing 1,4-butanediol is 50 grams;

·quantities of a substance containing MDMA totalling 75.9 grams at an average purity of just over 60%. The traffickable quantity of MDMA in a mixture is 3 grams;

·two bags of a substance containing methylamphetamines being a total of
7.5 grams at a purity of 30%. A traffickable quantity of methylamphetamines is 3 grams. In relation to these two bags, the Crown accept that your possession of this drug was for your personal use, and you will be sentenced on that basis;

·4 g of cannabis;

·a black bag containing a New South Wales drivers licence, three bank cards and a Medicare card all in the name of Maxwell Gibson; and

·a Taser on a bedside table rack and nine .22 ammunition cartridges were found in a container in a kitchen cupboard.

6You were arrested and taken to the Box Hill police station where police conducted a record of interview. You admitted that you smoke cannabis for back pain and that you used methylamphetamine, but you otherwise denied knowledge of the other matters; you denied possession of the items; and you denied trafficking in drugs.

7A number of mobile telephones & sim cards were seized from your possession. One of the mobile phones seized contained text messages relating to drug trafficking. This does not extend the period of trafficking charged in the indictment; nor will I consider these matters to be aggravating. In other words, they do not add to your sentence. Rather, it forms part of the background matrix upon which the pleas of guilty were entered to each charge of possession for the purposes of trafficking.

8An DNA sample was obtained from the lid of one of the bottles containing butanediol. Using shorthand, it effectively matched a sample of your DNA.

9You were remanded in custody on 6 March 2019 and you have been on remand since that time. You have now served 352 days presentence detention excluding today. 

10Your plea of guilty was entered on the day your committal proceedings were due to start. I accept your plea of guilty has utilitarian benefit as being entered at an early time.

11As I have said, you have extensive prior convictions dating back to 2000.

·in 2008 you were sentenced to 9 months' imprisonment for trafficking ecstasy;

·in 2011 at the Melbourne County Court you were sentenced to 3 years with 18 months to serve for trafficking methylamphetamine and trafficking ecstasy; and

·in 2016 you were convicted of trafficking methylamphetamine, trafficking cocaine, possession of a prohibited weapon without exemption (two charges), possession of cartridge ammunition without a permit, and handle stolen goods, and you were placed on a community corrections order.

12You have other convictions for dealing in property suspected of being stolen and handle stolen goods, and possession of drugs. You have been given community corrections orders, suspended sentences and numerous periods of imprisonment to this point.

13I turn to consider the objective gravity of your offending and your moral culpability. The two offences of trafficking were committed by your possession of drugs for the purposes of trafficking. In other words, the quantity of drugs that you had in your possession exceeded the threshold. In the case of the butanediol, you were in possession of over 22 times the traffickable quantity of the drug contained in a mixture. You possessed over 25 times the traffickable quantity of MDMA in a mixture.

14Your offending on this occasion was indeed serious. Your moral culpability is also high. You are now 48 years of age and your offending extends over nearly 18 years. There is no question that you knew what you were doing. Your prior history generally, and in particular, your multiple convictions and prison sentences for trafficking drugs, makes your moral culpability on this occasion more serious.

15Your offending must be met by principles of general and specific deterrence, denunciation, just punishment and a measure of protection of the community. Your persistent drug trafficking is to be utterly condemned. You must face a serious punishment for your offending on this occasion.

16I have read the sentence imposed by his Honour Judge Maidment on
1 December 2011. I agree with the submission made by your counsel that your offending on that occasion was objectively more serious than these instances of drug trafficking. Nevertheless, the fact that you received a significant period of imprisonment on that occasion, and yet were convicted again in 2016 of two further counts of trafficking, and then come before this court on a further two counts of trafficking, indicates to me that your prospects for your rehabilitation are poor.

17I turn now to your personal circumstances. You are 48 years of age and you were born on 24 January 1972. You grew up in Lebanon as one of 10 siblings. The civil war in Lebanon commenced in the year that you were born. I gather that your older brother was in the army and killed in the fighting. You also lost a number of other family members to the war.

18You left school at age 11 to help your father in his furniture factory. You helped your father to safety when he was burned when you were aged 13 to 14 years.

19Your parents migrated to Australia in 1987 and started a woodwork factory here. At age 18 you joined your family in Australia. Initially, you successfully ran an aluminium window factory. In 1992, you married and had four children of your own.

20You started using cocaine and amphetamines in approximately 2000 to cope with work-related stress. You went from occasional to daily use by 2007 and it followed after that that you lost your business and also your family.

21I have read the earlier psychological reports tendered on your behalf. You have suffered a couple of head injuries. Early medical reports debate the impact of these injuries and whether you have an acquired brain injury which has contributed to your drug dependency and reduced your moral culpability for your offending. The report of Dr René Stolwyk queries whether your cognitive and behavioural symptoms are the result of an acquired brain injury or also sustained drug intoxication.

22Your health has suffered over the years. In 2015 you suffered a heart attack.

23In 2016 you were provided with public housing in Ashburton. Your ardent desire to hold onto this public housing was a central focus of the plea made before me. Nevertheless, you have continued to use drugs and commit offences. You told psychologist Pamela Matthews that at the time of your arrest you were using methylamphetamine and GHB daily, and large quantities of ecstasy either daily or several times a week.

24Ms Matthews assessed you on 28 January 2020 (I note the date on her report is mistaken). She assessed you as meeting the diagnosis for persistent depressive disorder, stimulant use disorder and sedative, hypnotic and anxiolytic disorder.

25Ms Matthews considers that you need intensive therapy intervention to address your emotional and cognitive functioning so that your drug, alcohol and depression issues may be effectively addressed. Simple programs looking only at drug and alcohol treatment and/or more treatment of your depression alone are unlikely to be effective in her opinion.

26As I have adverted to, your world has shrunk over the years from that of a family man, a businessman and a marriage partner to living in public housing provided to you in Ashburton. Mr Chisholm, of counsel, who appeared on your behalf, provided a letter from Justice Connect which stated that the outcome of your tenancy in the house is dependent upon the outcome of this sentence hearing. Justice Connect lawyers have appeared on your behalf before VCAT in an effort to extend your tenancy into the future in order to provide you with a place to return to upon your release from prison. However, you have now been absent from your tenancy for nearly 12 months. If the sentence imposed by this court goes beyond the 12 month anniversary of your arrest and remand in custody, it may be difficult or even impossible for you to retain possession of your housing.

27Mr Chisholm submitted your situation is analogous to the taking into account on sentence the loss of confiscated assets under the Confiscation Act. Notwithstanding that you are the author of your own fate (Mr Chisholm submitted) you would feel this loss of your housing for years to come.

28Additionally, Mr Chisholm submitted that, together, your cognitive symptoms (which he called an acquired brain injury), your mental health issues, and your drug use may enliven the fifth principle in the case of Verdins in order to mitigate your sentence.

29I have some difficulty with that submission, given that Mr Chisholm relied strongly on the number of courses that you have completed whilst you have been in prison to submit that you have used your time well in prison and point to your prospects for rehabilitation. I do not consider there is any particular evidence that the sentence to be imposed would weigh more heavily upon you than on a person in normal health. On the one hand, Ms Matthews in her report states that you are ‘coping’ in custody, but on the other hand you rate your depression as 8/10. In any event, I do not consider that the factors relied upon, either individually or in combination, constitute a “condition” which attracts the application of the Verdins principle.

30Mr Chisholm submitted that your plea of guilty has a utilitarian benefit. As I have already said, I agree.

31Finally, Mr Chisholm submitted that the two drug trafficking charges should not be treated as single isolated matters; rather, both are possession for the purpose of sale charges occurring at the same premises on the same day.
Mr Chisholm pointed to the fact that in 2011 Judge Maidment ordered that the sentences on both trafficking charges be served wholly concurrently.
Mr Chisholm urged that I take the same course.

32Mr Plummer on behalf of the prosecution disagreed on this last point and submitted that some cumulation was warranted between the two charges. Here there are different drugs involved in different quantities. Rather, Mr Plummer submitted that the important sentencing factor in this case is one of totality. Therefore, the order for cumulation should be made but moderated.

33The Crown submitted that your prospects of rehabilitation are guarded.

34Mr Plummer submitted that the potential loss of your housing is not to be downplayed. Nevertheless, it was observed that you repeatedly offended after obtaining your tenancy in 2016. Mr Plummer submitted that the potential loss of your tenancy instead should underpin a submission of hardship.

35In the end, I recognise that there is hardship suffered by you from the loss of your house. However, you are a mature man who has continued to offend in a serious manner since the house was provided to you. The effect of the hardship you may suffer in mitigating your sentence can only be slight. What I mean by that is, I do not downplay the fact that it will be hard on you if you lose your house, but as a sentencing factor I can only give very limited weight to it.

36For my part, I have already stated that I consider your prospects for rehabilitation to presently be poor. These are your sixth and seventh convictions for trafficking in drugs. The message must be sent that those who persistently traffick in drugs of dependence can expect to receive stern punishment.

37Ultimately, I have decided that some cumulation between Charges 1 and 2 is necessary but I have regard to the principle of totality in fixing an overall total effective sentence. 

38Mr Mawas, can I ask you to stand at this point please.

39On Charge 1, trafficking of a drug of dependence, namely 1,4-butendoil, you are convicted and sentenced to 28 months' imprisonment.

40On Charge 2, trafficking a drug of dependence, namely MDMA, you are convicted and sentenced to 16 months' imprisonment. I order that six months of that sentence be served cumulatively on the sentence of Charge 1.

41On Charge 3, possession of a drug of dependence, namely methylamphetamine for personal use, you are convicted and sentenced to a term of imprisonment of one month to be served concurrently with the other sentences.

42On Charge 4, the charge of possession of cannabis in a small quantity, you are convicted and discharged.

43On Charge 5, the charge of handling stolen goods, you are convicted and sentenced to four months' imprisonment. I make one month of that sentence cumulative.

44On the summary charge of possession of a prohibited weapon you are convicted and sentenced to four months' imprisonment. I make one month of that sentence cumulative.

45On the summary charge of possession of cartridge ammunition without a permit, you are convicted and fined the sum of $750. 

46That should total 36 months' imprisonment. 

47I order that you serve a minimum term of 25 months before you are eligible for parole. I declare the period of 352 days' presentence detention reckoned as already served. But for the plea of guilty I would have imposed a sentence of four years with 39 months to serve. Are there any other orders to make?

48MS GILLIS:  Yes, Your Honour. There is a disposal order.

49MS ANSELMA:  It is not opposed, Your Honour.

50HIS HONOUR:  All right, I will make the disposal order in chambers.

51All right, thank you, Mr Mawas, thank you for your attendance, if you would be good enough to go with the prison officers now. I will stand down.

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