Director of Public Prosecutions v Merheby

[2016] VCC 1691

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00974

DIRECTOR OF PUBLIC PROSECUTIONS

v

AHMAD MERHEBY

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JUDGE:	HIS HONOUR JUDGE HICKS
WHERE HELD:	Melbourne
DATE OF HEARING:	4 November 2016
DATE OF SENTENCE:	11 November 2016
CASE MAY BE CITED AS:	DPP v Merheby
MEDIUM NEUTRAL CITATION:	[2016] VCC 1691

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu
For the Accused	Mr R. Chaudhuri

HIS HONOUR:

1Ahmad Merheby, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence, four charges of trafficking in a drug of dependence, and one charge of reckless conduct endangering serious injury.  The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years' imprisonment, for trafficking in a drug of dependence, 15 years' imprisonment, and for reckless conduct endangering serious injury, five years' imprisonment.

2You have admitted prior convictions.  The circumstances surround these offences are set out in the Crown opening, being Exhibit 1, (an agreed statement of facts,) and I shall not repeat those facts here.

3Suffice to say that in April of 2015, police commenced an investigation into drug activities carried out by yourself.  Such investigation used telephone intercepts and visual surveillance.  The police investigation established that you trafficked in a drug of dependence between 25 August 2015 and 20 November 2015. Some of your drug trafficking activities were conducted out of the family home of your parents, where you had set up a CCTV camera in order to monitor the arrival of customers and the presence of police.

4You bought and sold drugs of dependence primarily over your mobile phone and took precautions to avoid police detection by seeking payment from an anonymous electronic funds transfer service.  Besides using your home as your base for activities, you also used a variety of vehicles to assist you with drug sales, and you would also be driven to drop-off points by associates.  Alternatively, you would use hire vehicles.

5The circumstances relating to each charge are as follows:

6All trafficking charges on the indictment are put on a Giretti basis. 

7Charge 1, trafficking in GHB.  Between 25 August 2015 and 20 November 2015, you trafficked in GHB in a quantity of no less than a commercial quantity.  During the relevant period of time in respect of Charge 1, you made no less than 120 phone calls wherein you discussed the sale of GHB in amounts between 3 mL and 10 litres.  On one occasion, you were heard to agree to supply 1 litre of GHB for $1,100. 

8You trafficked a total of 66.2 litres.  A quantity no less than 2 kilograms is a commercial quantity.  In respect of Charge 1, both parties at the Bar table agreed that this was trafficking in a commercial quantity of GHB at a high level. 

9Charge 2, trafficking methylamphetamine.  Between 25 August 2015 and
20 November 2015, you trafficked a total 102.9 grams of methylamphetamine during the offending period.  Evidence revealed that no less than 210 phone calls were made by yourself, in which the sale of methyamphetamine for amounts of between 0.2 grams and 56 grams were discussed.  Both parties agreed this was trafficking in methylamphetamine at a medium level.

10Charge 3, trafficking in ecstasy.  Between 25 August 2015 and
20 November 2015, you trafficked in ecstasy, namely 110 pills, of which 100 pills were never supplied.  No less than 80 phone calls were made by you discussing the supply of ecstasy.  There was some disagreement as to the level at which this offence is to be assessed.  The Crown submitted medium, the defence stated low.  In my opinion, considering the circumstances, I am of the opinion that it is at the low level.

11Charge 4, trafficking in cannabis.  Between 25 August 2015 and
20 November 2015, you trafficking cannabis, namely 16.7 kilograms, of which 3.2 kilograms were supplied.  You made no less than 40 phone calls regarding the sale or supply of cannabis, ranging in size from 7 grams to 4.5 kilograms.  Again, there was some dispute between the parties as to the assessment of the level of seriousness.  The Crown submitted that it was at the higher level, the defence submitted at the medium level.  In my opinion, considering the facts of this charge, including also the fact that a trafficable quantity of cannabis is no less than 250 grams, and commercial quantity is 25 kilograms, I am of the opinion that such trafficking is at the medium to high level for trafficking in this drug.

12Charge 5, trafficking in alprazolam.  On 15 November 2015, you trafficked in Xanax.  You and your accomplice stole three bottles of Xanax from an unknown person in the Geelong area on 13 November, and subsequently made numerous attempts to sell such Xanax, and managed to sell one bottle to a particular person on 15 November 2015 for $350.  Both parties agreed this was at the lower level for trafficking in this drug.

13Charge 6, reckless conduct endangering serious injury.  In the course of delivering drugs of dependence, you engaged in reckless conduct endangering serious injury.  On 27 August 2015, at approximately 1.55 am, you spotted police, and despite police activating their lights, you then took off in your vehicle.  You evaded police detection. 

14However, intercept telephone calls revealed that in the following days, you and an associate discussed what to do with the car, no doubt out of fear to the car being located, and the fact that it may contain incriminating material, and/or at least your fingerprints, leading to your apprehension by police.

15You eventually destroyed the vehicle by taking it to 11 Railway Place, Preston on 6 September 2015, and setting it alight.  You set it alight in a residential area near adjoining houses.  The fire that you lit created a risk of serious injury to the residents in Railway Place.

16By your plea of guilty, you accept that you acted recklessly, and that you foresaw that an appreciable risk of serious injury was a probable consequence of your conduct.  That is, you knew that your actions would probably create a real risk of serious injury. 

17After making enquiries, the Crown prosecutor, Mr Porceddu, fairly submitted the level of offending in respect to this charge was at the lower level.

18On Friday 20 November 2015 at 6.45 am, a search warrant was executed at your premises, and you were arrested.  During the search by police, they located a number of mobile phones and a Samsung Note laptop.  The police also located a reasonably small amount of butanol in a plastic syringe, some scales, and a security system.  You made a no-comment record of interview.

19I state to you that I have taken the following matters into account in your favour in mitigation of sentence:

20Your pleas of guilty, and the early stages that such pleas were entered into. 

21In my opinion, you are entitled to a significant discount in mitigation of sentence due to your early pleas of guilty, including their utilitarian impact.

22Remorse. 

23I am prepared to accept that you have shown genuine remorse for your actions.  Not only by your pleas of guilty and expressions of remorse to your brother, but also by your actions.  Since these events, you have been drug-free whilst in prison for some 12 months, and have taken real steps to rehabilitate yourself. 

24Your personal circumstances. 

25Your personal circumstances are largely set out in the report of Mr Jeffrey Cummins, clinical and forensic psychologist, dated 14 August 2016, and I shall not repeat them here.  There has also been a helpful chronology tendered by your counsel Mr Dunn QC in respect of the matter, and again I will not repeat those facts here.

26Suffice to say, you were born in Coburg on 8 December 1985, and you are the youngest of six children.  Your family, which consists of your parents, your three sisters and your two brothers, lived in Campbellfield.  Your parents are Lebanese.

27In 1998, you completed high school, and in 2004, you completed your VCE.  In 2005, you were enrolled at RMIT in a first semester of aeronautical engineering.  I note in the report of Mr Cummins that he described you as being of average to high intelligence.  Unfortunately, you did not continue with your studies.  In 2006, you completed a sub-agents course, with a view to seeking employment in real estate.  Subsequently in 2006, you worked as a security guard for ACG. 

28It was about this time, however, that you started to take drugs.  You have a history of gambling, dating back to when you were 21 years of age.  You have also been diagnosed with a chronic left shoulder problem.

29I note that your overall criminal history commenced on 10 February 2006 and continued through to 6 November 2015, during which time you have no less than 15 court appearances.  Your prior offending does include, amongst other things, possession of MDMA, GHB, cannabis and amphetamines.  You also have convictions for matters of deception, criminal damage and unlawful assault. 

30You have a conviction for the possession of a general-category handgun in 2010, for which you received six months' imprisonment to be served by way of an intensive corrections order.

31As is clear from your criminal history, you were given orders by the courts to assist you.  On several occasions, you breached those court orders. 

32Currently, you are a prisoner at Port Phillip Prison, and work in the Billet Unit.  I note you are regularly visited by your parents and siblings.  I accept there has been no positive screens for drugs of dependence whilst you have been in gaol.  I note that while in prison you have enrolled to participate in a gambling course, and in a drug-relapse prevention course. 

33I also accept on the evidence placed before me that you reconnected with your family and have regained your Muslim faith, and that an Imam visits you every Friday at Port Phillip Prison.

34I accept that you have little assets, and some $25,000 of bank debt, and $5,000 in outstanding fines.  I accept that for the relevant period of time, you were, as your counsel submitted, "out of control, using drugs, and having no real focus in your life".  Your counsel expressly stated he is not relying on any principles in Verdins case.

35Your prospects of rehabilitation.

36In my opinion, your prospects of rehabilitation are somewhat cloudy.  Clearly, you have a history of relevant prior convictions.  You also have a history of breaching court orders.  In addition, you committed these offences whilst undergoing a sentence imposed by Her Honour Judge Hannan of this court for theft of a motor vehicle on 22 April 2015, where you received a term of imprisonment of seven months, such sentence being wholly suspended for a period of 12 months.

37The matters listed above cause real concern as to your prospects of rehabilitation.  Nevertheless, I am of the view that you still do possess reasonable prospects of rehabilitation.  I accept that you have now been off drugs for some 12 months, which even in gaol is no mean feat.  That you have regained your faith, and that you have real family support behind you. Even though you had support from your family through the relevant period of time of your offending, I am of the view that you are clearly listening to your family and their advice to you.  You have made a commitment to your family, and to each of them, not to reoffend again.

38I was impressed by the evidence of your brother, who gave evidence of your offending and of you going off the rails during the relevant period of time.  However, he was of the opinion you are a changed man, which I accept.  That you are totally clean, which I accept.  That that you seem to have your life back in order.

39Of course, the real test for you to overcome is when you are released from prison or custody, and how you deal with your drug addiction whilst at large, and where temptation is no doubt far stronger than in gaol.

40Your brother indicated there was a job waiting for you at his cabinet-making business upon your release.

41You are still a relatively young man of 30 years of age, and I am of the opinion overall that you still have reasonable prospects of rehabilitation.  You have taken actions to change your ways.

42Against these matters in mitigation however is that you committed serious crimes.  Charge 1 alone, of traffic in a commercial quantity of a drug of dependence carries a maximum penalty of 25 years' imprisonment.  Principles of denunciation, general deterrence, specific deterrence and protection of the community all have their part to play in the sentencing exercise.

43An aggravating feature of your offending is that at the relevant period of time, you were undergoing a sentence. 

44With respect to the charges before the Court you trafficked in different drugs of dependence. Though this occurred over the same period of time, trafficking in different drugs of dependence still warrants some separate recognition in the sentencing process. 

45It was accepted by your counsel in respect of Charge 1 that your trafficking was at the higher level of trafficking in a commercial quantity of a drug of dependence.  In respect of Charge 2, traffic in methylamphetamine, the Court of Appeal has recently accepted that trafficking in methylamphetamine is a prevalent offence in the community. 

46I asked counsel as to whether it would be appropriate, at least in respect of Charges 1 to 5, being the trafficking charges of drugs of dependence, that I make an aggregate sentence.  Both counsel submitted that I could make an aggregate sentence in respect of Charge 1 to 5.  In respect of Charge 6,
Mr Porceddu on behalf of the Crown submitted that I should not make that part of an aggregate sentence.  Mr Dunn QC together with Mr Chaudhuri submitted that I should, as it was part of the series of offences involving the trafficking of drugs. 

47As there is some conjecture as to whether I should make Charge 6 part of an aggregate sentence, I propose to impose a single sentence in respect of Charge 6. 

48Clearly, principles of proportionality and totality have a real part to play in the sentencing exercise.

49Accordingly, you will be sentenced as follows:

50In respect of Charges 1, 2, 3, 4 and 5, you will be convicted and sentenced to an aggregate term of imprisonment of five years and nine months' imprisonment.  With respect of Charge 6, you will be convicted and sentenced to nine months' imprisonment.

51I direct that three months' imprisonment in respect of Charge 6 be served cumulatively upon the aggregate sentence of five years and nine months' imprisonment in respect of Charges 1 to 5.  Otherwise, all such sentences are to be served concurrently.

52This makes a total effective sentence of six years' imprisonment. I direct you serve three years and six months' imprisonment before being eligible for parole. I declare that you have served 252 days by way of presentence detention. I also make the relevant disposal order. Pursuant to the provisions of s.6AAA of the Sentencing Act 1991, I declare the sentence you would have received but for your pleas of guilty would have been a term of seven years and three months' imprisonment, with a term of four years and six months to serve before being eligible for parole.

53I order that, pursuant to s.59(1) of the Confiscation Act 1991, that you pay to the State the pecuniary penalty in the sum of $52,660. 

54Are there any matters arising out of that, counsel?

55COUNSEL:  No, Your Honour.

56HIS HONOUR:  Thank you.

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