Director of Public Prosecutions v Mejia
[2013] VCC 1372
•27 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00358
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL MEJIA |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 September 2013 | |
DATE OF SENTENCE: | 27 September 2013 | |
CASE MAY BE CITED AS: | DPP v Mejia | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1372 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – possession of precursor chemicals – ecstasy – assisting principal offender – facilitating role – possessing precursor chemicals – small quantities – ice – inconsistence explanations – limited acceptance of responsibility – limited remorse – youthful offender – no priors – no subsequents – drug rehabilitation – CCO
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Albert | Ms K. Heng Office of Public Prosecutions |
| For the Accused | Mr J. McQuillan | Mr N. Marcevski C Marshall & Associates |
HER HONOUR:
1 Daniel Mejia, you are the third person I have had to sentence for assisting Aiden Khodher to purchase precursor chemicals and other equipment, or otherwise assist him in his efforts to manufacture ecstasy.
2 In July this year, I sentenced Mr Khodher to a total effective sentence of 4 years 6 months for trafficking in ecstasy and cannabis, and possession of various precursor chemicals and other equipment related to the manufacture of ecstasy. Wisam Dinah was sentenced to a total effective sentence of 3 months imprisonment and a 9 month Community Corrections Order on one charge of possession of items connected with the manufacture of ecstasy, and one of possession of a prohibited weapon. Pardeep Panwar was released on a 6 month undertaking to be of good behaviour for his role in storing precursor chemicals for Mr Khodher.
3 The circumstances of Mr Khodher’s ecstasy related offending are set out in detail in paragraphs 1 – 19 of his reasons for sentence and those relating to Dinah’s role are set out in paragraphs 1 – 16 of his sentencing remarks. I will annexe them to my reasons for sentence of you, and I adopt them without repeating them here for sentencing purposes.
4 In brief, Khodher purchased precursor chemicals and laboratory equipment, and established two clandestine laboratories for the manufacture of ecstasy. In order to distance himself from the purchase of these items, and to facilitate the establishment of the clandestine laboratories, he enlisted the services of various people to order, purchase, pay for, take delivery of and store the precursor chemicals. He used subterfuge to rent the places where he set up the laboratories.
5 Your role in Khodher’s activities was to make inquiries about the purchase of precursor chemicals from local suppliers, and to arrange for their purchase and collection.
6 On the agreed facts, on 2 occasions in August 2010 you made enquiries by email of Consolidated Chemical Co. (CCC) about purchasing 4 chemicals which can be used to manufacture ecstasy, namely: ammonium acetate, methanoic or formic acid, sulphuric acid and methanol.
7 You also made enquiries about purchasing mercuric chloride, which is used for manufacturing methylamphetamine, or ice.
8 When you contacted CCC you told lies about your intent. You held yourself out as the operator of a small business, who wished to buy chemicals in bulk to save the time, travel and expense of sourcing them regularly in smaller quantities. You said that two of the chemicals that you were looking for were for use by a friend of yours in a carpentry business.
9 On 2 separate occasions in late August and early September 2010 you ordered chemicals from CCC and collected them. In total you purchased and collected 2 lots of 25kg of ammonium acetate and 3 x 10L containers of sulphuric acid. The quantity of ammonium acetate you purchased could, if all the other chemicals required were available, have yielded 2.8 kg of ecstasy.
10 A year later, on 30 August 2011, police executed search warrants at various places connected with Khodher.
11 One lot of packages of 25 kg of ammonium acetate, and 2 x 10L containers of sulphuric acid which had come from CCC were found stored in the shed at Dinah’s family’s home.
12 A third 10L container of sulphuric acid sourced from CCC and packages containing a further 19.6kg of ammonium acetate were found at the clandestine laboratory that Khodher was operating at 34 Bloomfield Avenue, Maribyrnong on the day of the police raid. Also found there was the CCC invoice for the second purchase made by you in September 2010 of 25kg of ammonium acetate and 2 x 10L containers of sulphuric acid.
13 It is the purchase by you on those 2 occasions of the ammonium acetate from CCC that gives rise to the 1st charge to which you have pleaded guilty, namely possession of a precursor chemical.
14 The house where you lived with your mother and 3 siblings was one of those searched pursuant to warrant a couple of weeks later on 13 September 2011. That was two weeks after the initial police raids and 2 weeks after the CCC chemicals and the invoice relating to them had been found. In the course of that search of your family's home, many items indicating an interest in the process of manufacture of drugs of dependence, particularly methylamphetamine but to a lesser extent ecstasy, were found. They included handwritten notes of the addresses and telephone numbers of 3 chemical and equipment suppliers, handwritten notes concerning the manufacture of methylamphetamine using pseudoephedrine, hypophosphorous acid and iodine, typed directions on the synthesis of methylamphetamine using mercuric chloride, and various items relating to the synthesis or manufacture of ecstasy.
15 The ecstasy related materials included Australian Customs information about saffrole and isosafrole oil, and a list of the other chemicals required for the synthesis of ecstasy using safrole, namely methanoic or formic acid, methanol, sulphuric acid and sodium cyanoborohydride. A number of those chemicals had been the subject of one of your email enquiries to CCC the previous year, and others had been ordered by you and collected from CCC the previous year.
16 Some of these chemicals were also found at your home.
17 During the search police found 57mls of hypophosphorus acid. The prescribed quantity is 25mls. Had all the other materials required been available, that acid could have produced 43g of ice or methylamphetamine. This gives rise to the charge of possession on the day of the execution of the warrant of the precursor chemical hypophosphorus acid.
18 Police also found 519.8g of iodine. The prescribed quantity for that is 25g. The summary does not indicate how much methylamphetamine could have been produced from that had all other chemicals been available but it is possession of this that gives rise to Charge 3, possession on the day of the execution of the warrant of the precursor chemical iodine.
19 Also found was 2.6g of pseudoephedrine. This falls well short of 25g, the prescribed quantity for the charge of possession of precursor chemical. However, possession of that quantity of pseudoephedrine is a summary offence under the Drugs, Poisons and Controlled Substances Act (1981) as it is a Schedule 4 poison which cannot be possessed unless authorised under the Act. As a result, you have pleaded guilty to one uplifted summary charge of possession of a Schedule 4 poison relating to possession of that 2.6g of pseudoephedrine. If all the other chemicals had been available that pseudoephedrine would have contributed to a yield of 2g of methylamphetamine.
20 In addition, police found 2 ecstasy tablets, and a powder containing methorphan, an opioid analgesic. You have pleaded guilty to 2 charges of possession of drugs of dependence, one in respect of each of those 2 substances. It is accepted for sentencing purposes that there was no evidence that you were in possession of either of those drugs for a purpose related to trafficking and in those circumstances I sentence you as a person in possession of those for personal use.
21 When questioned by the police you said that Khodher was a friend but you denied any involvement in manufacturing drugs with him or purchasing drugs from him. You gave various explanations for possession of the documents relating to chemical companies, scientific glassware and chemistry documents containing the methods for manufacturing ecstasy and methylamphetamine. You asserted there was nothing wrong in your possession of these documents. When asked specifically about the hypophosphorus acid you said you thought it was probably cleaning liquid and that it had been there for years. When asked about the ecstasy tablets you said that you did not know whether they were ecstasy or not.
22 By your pleas of guilty you acknowledge that the explanations that you gave to the police about possession of these items were false.
23 You were 22 years of age at the time of the purchase of the ammonium acetate, and 23 at the time you were found in possession of the other drugs and precursor chemicals when the police executed the warrant at your family's home. You are now 25.
24 You are the 2nd of 4 children. You grew up in Melbourne with your mother and your siblings. Your father separated from your mother when you were a baby and you have had no contact with him. You have an older sister, and I was given no information about the role her father played in family life. Your mother’s next relationship after your birth must have lasted only a few years and she was again left single when your next born brother, who is 3 years younger than you, was a baby or toddler. Your mother eventually repartnered again, and had another child, the fourth in the family, who is 9 years younger than you. That relationship too had come to an end by the time you were charged, although the father of that child clearly maintains contact with the family. He now works in Vietnam. He wrote a testimonial on your behalf.
25 On your account, you and your siblings have been brought up essentially by your mother, and you told the psychologist Mr Ball who assessed you that you lacked a father figure or male role models in your childhood.
26 Your mother is a well qualified nurse, a charge sister and throughout your childhood worked night shift, either running a medical ward, or in emergency. By choosing those work hours that meant she was home in the mornings to get you and your siblings off to school, and home again in the afternoons when you came home.
27 Your maternal grandmother also lived with you and she, together with your sister as she became older, looked after the younger children while your mother was at work. Your mother has provided you with what she described as a comfortable home, good food and a good education. It was also clear that from her perspective she brought you up in a loving and comfortably well off family. She provided you with a good private school education. You did your secondary schooling at Essendon Grammar and St Joseph’s College. You completed your VCE, and after obtaining a certificate IV in Logistics and Supply Chain Management, you obtained employment with Silk Contract Logistics, a Tullamarine based importing and exporting business. You have since completed a diploma in logistics which you did part-time whilst maintaining your employment. You are still in employment with your first real employer, Silk Contract Logistics, and you are now engaged as a team leader, a union rep and OH&S rep at the Tullamarine site where you work.
28 At 25, you still live at home, as do your 22-year-old and 14-year-old brothers. I was told the 22-year-old is also in steady employment, and the 14-year-old is doing well at school. Your 28-year-old sister has recently given birth to her first child and she is currently engaged full-time mothering. I was not told what employment she engaged in before she had the baby and nor was it clear to me whether she was living independently, or whether she too, along with her partner and the baby also lived in the family home. Whether she lives at home or not, it is clear that she is still very close to the family. She, along with her partner and the baby, were at court on the day of the plea to support you. So was your mother and grandmother, and your girlfriend of the last 2 years, Natalie, and other people who were not identified to me but were either siblings or close family friends.
29 You are of at least average intelligence, and as the psychological report from Mr Ball indicates you have no psychiatric illness, psychological condition, or personality disorder. Mr Ball said you presented with a history of consequential thinking, executive planning and self-sustaining behaviour. Mr Ball said you clearly have the capacity to exercise good judgement.
30 Despite the advantages of what I consider on the evidence before me to be stability of home life, the provision of a good education, good parental modelling of steady employment and responsible providing for the family, your own steady employment, and the absence of mental illness, psychological condition or personality disorder, you have clearly not made the best of the opportunities offered to you. You have squandered your early adulthood by drug use and criminal activity. You have not rewarded well all the time, effort and love that your mother has put into you. You report that you started using marijuana at 18, and later also used ice. Although you did not report ecstasy use to Mr Ball or to your counsel, Mr McQuillan, it would appear that you also used that, although the frequency of your use is unknown.
31 You have now had to face the consequences of your involvement, not just in drug use, but also in assisting Mr Khodher in his venture of trafficking and manufacturing ecstasy by purchasing substantial quantities of precursor chemicals for him, and by possession of those small quantities of precursor chemicals and other materials associated with the manufacture of ice. Your pleas of guilty to these charges have been accompanied by concerted efforts in my view to minimise your role and shift responsibility to others.
32 I am not satisfied you have been frank or consistent about the circumstances which give rise to the charges, in particular, about your use of ice, its connection with the offending, and your upbringing.
33 So far as your use of ice is concerned, Mr Ball said you told him that you started using marijuana at 18, and were introduced to methylamphetamine at the age of 23, that you became quickly addicted to it and attributed your offending to poor judgment connected with your ice use and your mixing with bad company.
34 On the hearing of the plea Mr McQuillan told me that Mr Ball was incorrect in those assertions and that on his instructions you had started using ice at 21, having been introduced to it by your then girlfriend Nicole who was a drug user. I was told that it was through her that you met Mr Khodher, and that he supplied you with marijuana, ecstasy and ice. According to what Mr McQuillan told me were his instructions, following your breakup with Nicole you continued your association with Mr Khodher, and for a short time leading up to your arrest and in the context of the break-up with Nicole, you increased your ice use from what you had euphemistically described as recreational weekend use to daily use. It was that escalation to daily use of ice that was relied on for the context in which you committed the offences to which you have pleaded guilty.
35 In my view, Mr Ball’s account cannot be so simply explained away as an error on his part. It is not just a single error, a difference in the age at which you were said to have started using ice. Mr Ball's account gives a detailed account based on what he said you told him in which, amongst things, he attributes your description of your ice use as a “short but devastating” habit. You told Mr Ball that Mr Khodher was an old friend of yours, that is, not of Nicole's, who had supplied you with both ice and cannabis. You told Mr Ball that the onset of your addiction had occurred as you were going through a rough time and a messy breakup with your girlfriend. Mr Ball recounted more than one reference by you to abusing ice for a short period. Although you attributed the ice use to the break up with the girlfriend, you did not tell Mr Ball she was the friend of Mr Khodher’s and the one who introduced you to him. As I have noted, you described Mr Khodher to Mr Ball as your friend, not Nicole's.
36 By contrast, you were at pains through Mr McQuillan to identify Mr Khodher as Nicole’s friend, not yours.
37 More significantly, whether you used ice for only a short time or for a long time, on both accounts you had only a very short period of heavy use of ice. Both Mr Ball and Mr McQuillan report you as saying you were in the throes of that short lived, heavy ice use at the time of your arrest. That too is consistent with what you reported to Ms Spanos and Mr Anderson when you were placed on CISP bail immediately after you were charged.
38 Heavy ice use, and poor judgment as a result, may be closely linked in time with your arrest, and therefore with the possession of the precursor chemicals found in the family home that were related to the manufacture of ice. Your explanations, such as they were, for possession of those items, however, do not seem to be related to heavy ice use. Asserting, as you did, through Mr McQuillan, that you were given those precursor chemicals relating to ice manufacture by Mr Khodher may explain their source, but not your reason for possessing them. Saying you had an interest in making your own ice may be more likely, but that does not seem to me to be a product of impaired judgment brought about by heavy ice use. Rather, it is one of commercial expediency, an attempt to try and get your ice more cheaply. You appear to have given no thought to the risk that you posed your mother, your grandmother or your siblings in having such chemicals in the family home.
39 Your ex-girlfriend Nicole’s drug habits provide no explanation for your participation in either the purchase of the ecstasy precursor chemicals a year before your arrest, or your possession of the ice-related precursor chemicals at the time of your arrest. Mr Ball’s explanation for your lapse of judgment when in the throes of the heavy ice use cannot explain the assistance provided to Mr Khodher 12 months before your arrest, and sheds little light on why you were in possession of those ice related precursor chemicals at the time of arrest.
40 It was put on your behalf, so far as possession of the ammonium acetate, the ecstasy related precursor chemical, that you, like the co-accused Dinah and Panwar, were under Mr Khodher’s thrall. I am not satisfied that is the case. You were older than Mr Dinah. You did not have the same subordinate relationship with Mr Khodher that Mr Dinah had, nor did you have a subordinate relationship of the type that Mr Panwar had with Mr Khodher.
41 So far as Mr Panwar was concerned, I was satisfied that Mr Khodher exploited his authority over him because he, Mr Panwar, was an employee of the Khodher family’s legitimate business. On the evidence before me, Mr Panwar was not the only employee whose assistance Mr Khodher obtained by exploitation of that employer/employee relationship.
42 I was also satisfied that for different reasons Mr Dinah was exploited by Mr Khodher. Mr Dinah’s father and Mr Khodher’s father had been best of friends since childhood. They had fled Iraq together, and established themselves in Australia with their families together. The families remain very close, and the children had grown up together. Mr Dinah was only 19 at the time his role in Khodher’s venture began. Mr Khodher was 2 years older than him. At that age, 2 years can be a significant gap in maturity and life experience. On the evidence before me, Mr Dinah had always looked to Khodher. There was no suggestion that he had ever stood up to him.
43 On his plea, Mr Khodher claimed that those who assisted him knew what he was doing, and had freely agreed to assist him. As I have made clear, I was not satisfied that was the case with either Mr Dinah or Mr Panwar.
44 However, there is no material before me which suggests that you were under Mr Khodher's thrall or control in any way and no material before me to indicate that you were manipulated by him or somehow had your will overborne.
45 I am satisfied that you made a conscious choice, long before your heavy ice use occurred, to lend yourself to his venture by assisting in the purchase of chemicals, and so to assist him to distance himself from his business of the manufacture of ecstasy.
46 I can make no findings about what you got out of it. The evidence simply does not permit me to do so. However, this account gives flesh to what I had said before about my finding that you have not accepted full responsibility and that you sought to shift as much blame as you could onto others, particularly Mr Khodher and your ex-girlfriend, Nicole.
47 This pattern of blaming others in my view extends to what I consider to be a self-serving, self-pitying and false account of your upbringing given to Mr Ball.
48 Mr Ball's report said that you described a chaotic, disengaged, dysfunctional family of origin, characterised by poverty and the absence of a father figure. As I said during the plea, this seemed to be at odds with the history of your upbringing, of your private school education, your successful completion of your VCE, your history of steady employment and engaging in and completing further study, all the while still living at home with your mother and siblings, and having their support at court. When I asked about that, Mr McQuillan sought clarification. I was then told that you acknowledged that Mr Ball had quoted you accurately on that description.
49 This characterisation of your upbringing clearly came as a shock and a surprise to your mother. She was called to give evidence, and she cried as she explained she thought she had surrounded you and your siblings with love and stability, how she had worked so hard to provide you all with a good, comfortable home and good schooling, how she had worked night shifts so as to be home for you and your siblings when you woke, how she made sure she sent you to school well fed, with clean clothes and all you needed, and was there again when you came home from school, how her mother lived with you and was there at night while she was at work. A mark of what I see to be her selfless love was her attempt to take the responsibility for your description of your upbringing. She said, and having just heard of your characterisation of your upbringing, that she now wondered whether she had concentrated too much on physical and material comfort and well-being, and not enough on your emotional wellbeing.
50 Her selflessness is in stark contrast to what I see to be this persistent pattern of yours of failing to take full responsibility for your own actions, for blaming others and for creating accounts of events which are not supported by objective reality.
51 In sentencing you therefore I have regard to the fact you have pleaded guilty and you have taken legal responsibility for your actions, but that you have not accepted full or appropriate moral responsibility,.
52 I do not accept Mr Ball's opinion that you are immature. Your behaviour in my view is simply a product of your failure to take responsibility for your own actions.
53 Therefore, the sentences that I impose upon you must reflect specific deterrence as well as general deterrence as well as reflecting denunciation and just punishment
54 You are entitled to the benefit of a relatively early guilty plea. I accept that you offered to plead at start of the committal to the charges that you ultimately did plead guilty to. You were then facing in addition some more serious charges. Your original plea offer was not accepted. You then put all charges back in issue, not just those bigger ones, and you maintained that position until the prosecution reopened negotiations and eventually accepted your original offer.
55 You are not entitled to the full benefit of a pre-committal plea, although you are entitled to a substantial portion of it. I accept you are sorry for the consequences of the exposure of your wrongdoing and that you have taken steps to address your ice use. Your remorse is, however, limited to that. You have, as I have noted, failed to accept full responsibility for your conduct and your choices and it seems to me you are still preferring to blame others and your drug use.
56 You are relatively young and despite your limited acceptance of responsibility and your ingratitude, you have very good family supports. You also have good employment and there is the notable absence of the risk factors arising from mental illness or psychological condition. You have not offended in the two years since these charges were laid and you report having remained ice free. Although you reported whilst on CISP supervision you were still using cannabis you report that you are now free of that as well. In those circumstances, encouraging the rehabilitation that is already underway should be given considerable weight. But the sentence must also clearly have a punitive and deterrent aspect for you.
57 The sentences must reflect three discrete wrongdoings. Charge 1 relating to the obtaining of the ecstasy precursor chemical from Mr Khodher. Although what you purchased was in a substantial quantity it is clear that you were a facilitator, rather than a larger player in Khodher’s venture.
58 Charges 2 and 3 and the uplifted summary charge have to be dealt with separately; they all relate to your possession 12 months later of the possession of the ice-related precursors and Charges 4 and 5 have to be dealt with separately again, the charges of possession of the small quantities for personal use of the ecstasy and the opioid analgesic.
59 What I am going to do, and I will tell you first before I formally pass sentence, is to release you on a Community Corrections Order for a period of 18 months and with a substantial component, 180 hours of unpaid community work as well as drug assessment and treatment on Charge 1.
60 On Charges 2 and 3, the other precursor chemical charges relating to the ice related precursors you will be released on a Community Corrections Order for a period of 9 months and that will run concurrently with the Community Corrections Order on Charge 1. There will be no separate unpaid community work component on the Community Corrections Order for Charges 2 and 3 but it will contain supervision and drug assessment conditions.
61 Charges 4 and 5, the two possession of drug for your own use charges, will carry significant fines.
62 The summary charge of the possession of the Schedule 4 poison, because it is charged as a Schedule 4 poison charge not as a possession of a precursor chemical charge, and because of the quantity, I am also going to deal with by way of fine.
63 In my view the unpaid community work is a substantial punitive imposition and I am very conscious of the fact that when the Community Corrections Order legislation was introduced into Parliament the Attorney General made it clear that unpaid community work was seen to be and was supposed to be a punitive element. You will be under this sentence for the full 18 months of the Community Corrections Order on Charge 1 and for 9 months on Charges 2 and 3. You must understand that that is in effect like serving a sentence and that any breaches of that order or any commission of further offences will not only have you dealt with for the breaches themselves or for any subsequent offending but will bring you back before me to be dealt with for the breaches and open you up to sentencing in respect of these charges. So you cannot think that this is allowing you to get away lightly with it.
64 Could you please stand.
65 Daniel Mejia, on the charges to which you have pleaded guilty you are convicted. On Charge 1 of possession of the ammonium acetate, you are placed on a Community Corrections Order for a period of 18 months. That order commences today, 27 September 2013, and ends on 26 March 2015. There are mandatory terms that apply to this and all Community Corrections Orders. They are these, that you must not commit another offence for which you could be imprisoned during the time that the order is in force. That you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations. That means you must not be impaired by drugs or alcohol when you attend for any of your sentencing conditions with Community Corrections. You must report to and receive visits from the Secretary or Delegate. You must report to the Sunshine Community Correctional Services Centre at 10 Foundry Road in Sunshine within two clear working days after the commencement of this order. That means by Tuesday of next week. You must let a Community Corrections Officer know within two clear working days if you change your address or your job. You must not leave Victoria without first getting permission to do so from the Secretary or Delegate and you must obey all lawful instructions from and directions of the Secretary or Delegate. In addition to the mandatory terms, so far as the sentence on Charge 1 is concerned, you must also perform 180 hours of unpaid community work over the period of 18 months as directed by the regional manager. If you fail to comply with this condition, the Secretary may give you a direction to perform additional hours of unpaid community work in accordance with s.83A(u) of the Sentencing Act. You must be under the supervision of a Community Corrections Officer for a period of 18 months and you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager.
66 On Charges 2 and 3, possession of the precursor chemicals relating to the manufacture of ice, you are placed on a Community Corrections Order for a period of nine months commencing today and ending on 26 June of next year. The core conditions for that order are identical to the core conditions for the first order. In addition, the conditions on this order are that you must be under the supervision of a Community Corrections Officer for the nine months period of this order and you must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the Regional Manager.
67 On Charges 4 and 5, the two charges of possession of the ecstasy and the opioid analgesic, you are fined on each of those charges the sum of $1000.
68 On the uplifted summary charge of possession of the small amount of pseudoephedrine you are fined an amount of $500. So that is $2500 in total in fines.
69 There is an automatic stay of one month in respect of payment of those fines. You can apply for an extension of the time in which to pay or you can make arrangements to pay by instalments or to convert those fines to unpaid community work. They are things that you will have to work out with the Registrar of this Court. All I say to you is if you are not able to pay the fines within the automatic stay month it is in your interests to contact the Registrar in advance to make alternative arrangements.
70 I cannot impose these Community Corrections Orders on you unless you consent. Do you consent to being placed upon them?
71 PRISONER: Yes, I do.
72 HER HONOUR: I will ask my associate to bring the orders down and ask Mr Marcevski to give them to you. When you have made sure you understand those conditions please sign them and then they will be returned to me.
73 In the meantime I will make the order for forfeiture in accordance with the application made and consented to.
74 Are there any further orders that are required to be made in respect of Mr Mejia?
75 MR ALBERT: I am just trying to recall whether the situation requires a s.6AAA.
76 HER HONOUR: Have a think.
77 MR ALBERT: I'd have to have a look at it, Your Honour - - -
78 HER HONOUR: It is only imprisonment and fines and only fines only a certain amount and I am under the fine amount, I think.
79 MR ALBERT: I will take that as right, Your Honour.
80 HER HONOUR: Mr Mejia, when copies of these orders have been made and provided to you, you will be free to leave the court.
81 So that is it. No further orders? Adjourn.
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ANNEXE A: Reasons for Sentence in DPP v Aiden Khodher (Paragraphs 1 – 19)
HER HONOUR:
1. Between 3 November 2010 and 30 August 2011 you Aiden Khoder trafficked in MDA. You did so in a variety of ways, all designed to distance yourself from your true activity.
2. You used others to make repeated purchases of precursor chemicals on your behalf. You provided them with the funds to make the payments. They took delivery of the chemicals and provided them to you on request or directed that they be delivered, addressed to false names provided by you to addresses provided by you, some of those addresses in turn you had used or asked others provide you with for that purpose of receiving some of the chemicals and other items. Some items were ordered from Australia, while others were purchased from overseas online. You also directed your co-accused Wisam Dinah to purchase as well as chemicals and other items, a book called Total Synthesis II which provide advice on how to manufacture drugs
3. You took some of the precursor chemicals that you purchased by you, or on your behalf, to the homes of people you knew and stored them, you had them stored in the shed at the back of Mr Dinah's house, and you had some of them stored in the garage at the house of your other co-accused Mr Panwar. As the evidence before me revealed some of those chemicals were unstable and you took no precautions to ensure that they were safely stored or that instructions were given as to their safe storage so they did not pose a risk to the people who you foisted them onto.
4. You purchased other precursor chemicals yourself, although concealing your identity by using the name and address of a family business.
5. You used yet another person to rent a post office box in her own name for the purpose of taking delivery of precursor chemicals and equipment that others had ordered on your behalf for the manufacture of MDA. Evidence revealed 13 deliveries were made to that box office box addressed to a John Carboni. Other evidence reveals that that is a false name used by you to facilitate the ordering and delivering of chemicals, laboratory equipment, material to bind substances into tablets, tablet press punches and die sets, and an instructional DVD on the use of the tablet press.
6. Yet another person was used by you to take delivery at her home addresses of other equipment purchased by you online to be used in the manufacture of MDA.
7. You rented a room from Mr Panwar who is an employee in your family business. He and his wife rented a house, and they had a spare bedroom which they rented out to other people. When the bedroom became free you rented it. After you had rented the room, you told Mr Panwar that you wanted to use the garage for storage. In fact you set up a laboratory there for the manufacture of MDA. Not long after the laboratory had been set up, and when it would appear manufacture was actually underway you were advised that a workman who had been called to fix a broken toilet in the premises had inadvertently come across the laboratory in the garage, as a result you dismantled it, enlisting Mr Panwar's help to move everything out.
8. Yet another person you knew was used by you to pose as your girlfriend in order for you to rent a house, making it out as if the two of you were a couple moving into the house together. You paid six months rent in advance for that. You did not move into it, nor did the young woman, rather you established another clandestine laboratory in that house.
9. The evidence does not reveal the amount of MDA you actually manufactured. The evidence before me reveals one completed transaction were you sold 200 tablets for $3000 to a person by the name of Smith. You were under surveillance at the time, he was later intercepted or arrested and the tablets were in his possession. The marking on the tablets was able to be traced back to a dye in the tablet press that you had used.
10. This was brought to an end by the police executing search warrants at a number of premises on 30 August 2011.
11. At the time of the execution of the warrants large quantities of the precursor chemicals were found. At Mr Dinah's family home in the shed 25 kg of ammonium acetate, 25 kg of ammonium chloride and 5 containers containing a total of 35 L of sulphuric acid, was found. At the rented house in Bloomfield Avenue, Maribyrnong where you had set up the second clandestine laboratory a further 10 L of sulphuric acid and 19.6 kg of ammonium acetate was found. So was a large quantity, 20.4 kg of saffrole derived from sassafras oil found there. The search warrant at your home revealed amongst other things a tablet press with your fingerprints on it, the instructional DVD on its use, liquid containing ecstasy and MDP 2p, again a derivative substance produced in the in the process of manufacture of MDA. Punch and die sets were also found, and one of those matched the logo that was found on the $3000 worth of tablets that you sold and to which I have already referred.
12. You were actually at your clandestine laboratory in Maribyrnong at the time of the execution of the search warrants, and further analysis and scrutiny of the chemicals found there revealed that all of the chemicals required to produce ecstasy using sassafras oil except for one chemical, palladium chloride, were present at that clandestine laboratory.
13. Although no palladium chloride was on the premises at the tie of the execution of the warrants, other evidence revealed that during the period covered by the charge you had ordered palladium chloride using a false name, John Carboni, and it was delivered to the post office box lease in the name of one of your friends that I have already referred to.
14. At the laboratory the textbook Total Synthesis II which had been ordered by Mr Dinah on your behalf, and handwritten notes detailing a process for the production of ecstasy from sassafras oil were also found.
15. An assessment was made of the amount of ecstasy that could have been produced from the chemicals that were found on the day of the police searches. That in itself gives some indicator of the potential for production. If all other chemicals needed for the process were also available the saffrole that was found would have been capable of producing between 3.6 and 3.8 kg of ecstasy. The amount of MDP 2p that was found would have yielded 81 g. The ammonium acetate that was present could have yielded 2.5 kg of ecstasy, and the sodium cyan borohydride could have produced 5.04 kg of ecstasy.
16. It would appear that at the time of the execution of the warrants you were actively engaged in the manufacture of ecstasy when the police came across you in the laboratory.
17. You have pleaded guilty to this charge of trafficking in MDA by these various means which I have detailed, in addition you have pleaded guilty to 3 charges of possession of precursor chemicals used for the manufacture of MDA, that is sassafras oil, saffrole and sodium cyan borohydride and 1 of possession of a drug of dependence that is in fact used or derived in the process of manufacturing MDA, namely MDP 2p.
18. You have also pleaded guilty to possession of a tablet press associated with the manufacture of the ecstasy.
19. All these items were found on the day that the police executed the search warrants, 30 August 2011, and they are obviously derivative or ancillary offence separate, but directly related to and connected with the process of the manufacture of MDA. Therefore as you will see when I formally pronounce sentence on you, although I sentence you individually for each of those additional facilitative offences, the sentence for all of those facilitative offences will be served concurrently with the sentence in respect of the manufacture, the MDA, the trafficking charge.
ANNEXE B: Reasons for Sentence in DPP v Wisam Dinah (Paragraphs 1 – 16)
1. Wisam Dinah, yesterday I sentenced your co-accused, Aiden Khodher. He was the principal offender in a venture in trafficking in MDA. You assisted and facilitated his activities in manufacturing and trafficking in the MDA by buying precursor chemicals and other items connected with the manufacture of MDA and storing precursor chemicals in your family home.
2. You were present in court yesterday when I sentenced Mr Khodher, and I then set out the activity that gave rise to the charge of trafficking and the other charges to which he pleaded guilty. I do not propose to repeat that account here but these reasons should be understood by what I said in respect of Mr Khodher.
3. On the agreed summary, between January 2010 and July 2011 you made 21 payments, totalling $15,503 via Western Union to various manufacturers of precursor chemicals and laboratory equipment and booksellers. All equipment or chemicals or items are designed for, or able to be used for the manufacture of MDA. All payments by you were made with money provided by Mr Khodher and were in respect of items that he had requested you to order on line for him.
4. By December 2010, that is 11 months after you had started doing this, you saw a pill press in Mr Khodher's position. Whatever your actual state of knowledge as to the true purpose of the items you had purchased and ordered up until that date, it is clear that from then, the time that you saw the pill press, you knew that the chemicals and other items that you were ordering and paying for with money provided by Mr Khodher were for the manufacture and trafficking of MDA by him.
5. Between January and December 2010, that is up until the time you saw the pill press, you had ordered items on 13 occasions and made 13 transfers, totalling just under $6000 as payment for those items. From 1 December, the date by which you are fixed with actual knowledge and when, by your guilty plea, you acknowledged that you were aware that the items you were ordering and paying for were to be used in connection with the manufacture of MDA, you placed a further eight orders and made transfers of money, totalling just over nine and a half thousand dollars, that is from 1 December up until 30 August, the date of the police search warrants and arrests.
6. On 30 August a search warrant was executed at your home, amongst other places. A Western Union receipt for the most recent purchase, that of a punch and die set from China, was found. A punch and die for a tablet press was found concealed in your computer tower.
7. Substantial quantities of precursor chemicals were found in the shed in the back of your family home. These were chemicals that had not been ordered by you. They had been ordered by and large from a local manufacturer. In the shed was 25 kilograms of ammonium acetate, 25 kilograms of ammonium chloride and a total of 20 litres of sulphuric acid.
8. When interviewed by the police after the execution of the search warrants you told them you knew Mr Khodher was manufacturing ecstasy because he told you so. You said that Mr Khodher would give you a piece of paper with the details of the items that he wanted ordered, the names that he wanted the ordered items to be addressed or directed to, and a delivery address for them. On many occasions the name was a false name and the address was not Mr Khodher's home address and often not yours either.
9. You told the police that you had an idea of what the transactions were about but you did not ask questions. You said that when you purchased a book on Amazon called, "Totally Synthesis II", you knew it was about making drugs and you arranged for it to be delivered to the post office rather than to your home, in order to conceal your involvement in ordering it. You said that you were aware that you had purchased palladium chloride and you were aware that it was used in the manufacture of ecstasy. You said you thought you had made a payment for safrole and you knew that was used for the manufacture of ecstasy. You said you had paid for about four die sets for the tablets. Your explanation for the chemicals stored in the shed was that Mr Khodher had given them to you and asked you to hide them and you had done so.
10. Also found at your home during the execution of the search warrant was an air rifle with ammunition which was kept under your bed, and four sets of knuckle dusters, which were in a safe in your brother's bedroom and which you said were yours.
11. It is these circumstances that give rise to your guilty pleas to one charge of possession of substance, material of documents containing instructions relating to the preparation or manufacture of a drug of dependence or equipment with the intention of using the substance, material, document or equipment for the purpose of trafficking in a drug of dependence, between 1 December 2010 and 13 August 2011. As I have already indicated, this between dates charge has the dates fixed by reference to the date on which you acknowledged that, at least by then, you were aware that the items that you were purchasing and bringing into the country were for the purpose of manufacturing ecstasy, and running through until the date of the execution of the warrant.
12. In September 2010, that is about three months before you saw the die press, the pill press, you were convicted and placed on a Community Corrections Order for a period of 12 months on a charge of importing prohibited imports. As a result you were prohibited from possessing any firearms. It is that, that leads to the charge of being a prohibited person in possession of an unregistered firearm in respect to the air rifle that was found under your bed on the day of the execution of the warrant.
13. As a result of the finding of the four pairs of knuckle dusters and your acknowledgement that they were yours, you have also pleaded guilty to one uplifted summary charge of possession of a prohibited weapon.
14. The major charge to which you pleaded guilty, the possession of items connected to trafficking in a drug of dependence, was originally framed to cover the whole period of the Western Union transfers, namely from 26 January 2010 all the way through to the time of the police raid.
15. At the commencement of your plea submissions and consistently with the outline of submissions that were filed on your behalf, I was told that your position was that you did not know from the outset that the items that you were ordering at Mr Khodher's request were connected with the manufacture of ecstasy. It was put that you became suspicious over time and eventually participated in the ordering and payment for the items with full knowledge of their intended use. It was only when I asked how that position sat with your guilty plea to the charge framed over the whole period of the Western Union transfers that consideration was given to the time span in the charge, and as a result, the charge was amended to reduce the timeframe so that it now covers only that period from 1 December, that is from the time that you admit you were fixed with knowledge after you had seen the pill press.
16. The case is put, therefore, and I sentence you, on the basis that the charge covers your possession of the precursor chemicals stored in the shed and found on the day of the execution of the warrant, and also your possession of all items imported by you from 1 December 2010 and paid for by the Western Union transfers. As I understand the way the case against you is put and the basis on which you have pleaded guilty to that more narrowly framed time span of the charge, possession of the precursor chemicals is straightforward. You were in possession of them by storing them in the shed. So far as the items ordered on line were concerned possession is put on the basis of you exercising dominion or control over them by your conduct in ordering them, using a name and address given to you for that purpose, thereby controlling the destiny of the items, sending the money to pay for them and collecting them or directing them to be sent to a particular address provided by you, and in circumstances from 1 December where you knew their true purpose was for the manufacture of MDA. Thereby, by that, demonstrating the requisite knowledge or intent that the items were to be used for trafficking in MDA.
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