Director of Public Prosecutions v MO
[2012] VCC 2126
•20 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MO |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 20 December 2012 | |
CASE MAY BE CITED AS: | DPP v MO | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2126 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Pirrie | Office of Public Prosecutions |
| For the Accused | Mr R. van de Wiel QC |
HER HONOUR:
1 MO, you have pleaded guilty before me to two charges of manufacturing a marketable quantity of a controlled drug, namely amphetamine contrary to s.305.4, paragraph 1 of the Commonwealth Criminal Code; one charge of dealing in the proceedings of crime where the value is more than $10,000 contrary to s.400.6 paragraph 1 of the Commonwealth Criminal Code; one charge of trafficking in a marketable quantity of a control drug, namely amphetamine contrary to s.302.3 paragraph 1 of the Commonwealth Criminal Code and possessing an unregistered long-arm contrary to s.6A paragraph 2 of the Firearms Act 1998.
2 The maximum penalty for manufacturing a marketable quantity for a controlled drug is 25 years imprisonment. The maximum penalty for dealing in the proceeds of crime where the value is more than $10,000 is ten years imprisonment. The maximum penalty for the charge of trafficking a marketable quantity of a controlled drug is 25 years imprisonment. The maximum penalty for possessing an unregistered long-arm is four years imprisonment.
3 The facts underlying your offending were set out in great detail in a lengthy prosecution statement of facts which is annexed as Exhibit A to these sentencing remarks. In short term they are as follows: Charge 1 relates to the manufacture of about 29 ounces of methylamphetamine with unknown purity but which amounted to between 250 and 750 grams pure of that drug. The principle manufacturer was a man named Al Shiakhly to whom you supplied 23 kilograms of pseudoephedrine pills and paid Al Shiakhly $4000 cash for equipment and chemicals required for the drug extraction process.
4 Between 29 May and 24 June 2010, after receiving the pills and buying the equipment, Al Shiakhly extracted the pure ephedrine from the pills then in an upstairs area of a nightclub in Sydney Road, arranged for by you, conducted a cook whereby he converted 250 grams of the pseudoephedrine powder into liquid speed, also known as methylamphetamine oil, which you and he then dried into amphetamine.
5 At his home address in Reservoir Al Shiakhly cooked the remaining pseudoephedrine powder into methylamphetamine over a week, producing two ounces of speed and you arrived at his house to collect the product, during that visit assisting him in converting more of the oil into speed, producing a further six ounces of the drug, you taking eight ounces of speed with you when you left. On the second occasion you assisted Al Shiakhly to produce a further ten ounces of speed, you arranging its sale. Al Shiakhly then produced a further quantity of speed from the oil, in total producing about 29 ounces of speed.
6 Charge 2 relates to moneys received by you from an under cover operative between 13 and 18 August 2010 from the sale of 10,053 tablets of methorphan, a drug used in the manufacture of ecstasy as a substitute for MDMA and an active ingredient in the production of cough syrups. A pharmacist AK and his brother RK, imported about 150 kilograms of methorphan into Australia on 3 August 2010 and the trafficking took place shortly after the consignment had cleared Customs.
7 On 13 August the under cover operative, UCO232 paid you $32,700 as part payment for the drugs, which was ultimately through various channels, used to reduce a loan facility on your property in Greenvale. On 18 August 2010, UCO232 paid you $32,300 cash being the outstanding moneys owing, which moneys were used by you to purchase two motor vehicles, a Nissan Maxima for $13,300 and a Volkswagen Jet for $14,700. The actions underlie Charge 2 on the indictment.
8 Charge 3 relates to conversation of about 600 millilitres of methylamphetamine oil into methylamphetamine on 27 and 28 December 2010, the manufacturing process taking place in a clandestine drug laboratory operating from premises in Delacombe, a suburb of Ballarat which was the residence of RW. You arranged for your employer Mohammad Abdul Fattar to collect the amphetamine oil from Sydney and deliver it to RW in Ballarat on 27 December 2010. You arrived at RW's house that evening where you met him, another man, CT, as well as Mr Fattar who had just returned from Sydney with the methylamphetamine oil, leaving in the morning of 28 December while the cook continued.
9 It was estimated that the 600 millimetres of methylamphetamine oil was capable of producing a maximum of 660 grams of methylamphetamine the wholesale value of which was approximately between $399,000 to $499,000 with a street value of approximately $668,000, this charge concerning therefore the manufacture of a quantity not greater than 668 grams of methylamphetamine.
10
Charge 4 relates to sales by yourself to UCO232 between 2 February and
1 March 2011. In a series of deals in that time, you or your associate JM, engaged in sales to UCO232 of (1), on 3 February 2011, eight ounces of methylamphetamine powder and 4800 tablets of methorphan tablets, in total costing $111,200, (2), on 25 February 2011 the sale to UCO232 of eight ounces of speed and five ounces of Ice or methylamphetamine for which you were ultimately paid $130,000. Subsequent analysis revealed the substances sold had a gross weight of 599 grams and contained 382 grams of pure methylamphetamine and the 4800 pills weighed 1232.6 grams and contained 431 grams of pure methorphan.
11 You received a total of $235,000 cash for these transactions. The moneys were paid in instalments by UCO232, one of them occurring on 1 March at around 1.30 pm where you met at a restaurant in Lonsdale Street, Melbourne on a day when you were attending court on another criminal matter, at which UCO232 handed you a bag containing $80,000 cash and where you had a conversation about the drugs.
12
Finally, Charge 5 concerns CCTV footage received from security cameras at your home in Greenvale in which you and your associates were seen handling a semiautomatic rifle on a number of occasions between 28 March and 4 April 2011, this weapon being seized at the premises during a police search on
7 April 2011. The raid on that day resulted not only in the seizure of the semiautomatic rifle which was loaded, but two boxes of ammunition containing 100 bullets and $7000 cash located in a safe in the wine cellar.
13 In a record of interview conducted that day you made no comment answers, save for agreeing to your residential address, your mobile phone number and a statement that you did not know JM or store any drugs or firearms at your premises.
14 On 8 June 2011 following a short contested committal involving only two witnesses, you were committed on ten charges that have now been incorporated into the five charge indictment before this court. You have remained in custody since 7 April 2011.
15 Of relevance is the fact that on 28 March 2012 you pleaded guilty before me to one charge of affray for which you were sentenced to 18 months imprisonment, 16 months of which was suspended for a period of two years. That offending has direct bearing upon the offending now before the court. On that occasion and gun battle ensued outside a suburban house in Broadmeadows where a man was being held hostage by a group of men. You had attended the scene with three men. Fadi Haddara, Nasa Khier and his brother Mahmoud. You were contacted to attend to assist in the release of the man being held, as you were apparently viewed as an elder within the Lebanese community and called out to address and diffuse situations within that community.
16 Your attempts at having the man released peacefully were unsuccessful and you were shot to the abdomen and left upper buttock. Nasa Khier received a serious gunshot wound to his left knee requiring extensive medical treatment and has been left with a permanent incapacity of that leg. Mahmoud Khier received a superficial gunshot to his left leg, while Mr Haddara did not receive any injury. All four of you were charged.
17 Your counsel informed me that the Khiers and the Haddaras, notorious criminal families in Melbourne, regarded you as responsible for the injuries that had been inflicted upon them and for the legal fees required for representation in court arising out of this incident. Pressure was put upon you for what loosely be termed monetary compensation for the injuries suffered by the others and for the legal fees.
18 Your counsel informed me that you ultimately made two payments of $250,000 to Nasa Khier, relinquished two businesses, a chicken shop and a butcher shop which you ran on leasehold premises to the Khiers at their demand, and ultimately handed over many thousands of dollars to the Khiers and Haddaras in relation to required legal fees. Some of these moneys apparently came from your manufacturing and trafficking enterprises.
19 Your co-accused Al Shiakhly was an established drug manufacturer who had been producing amphetamines for the Khiers and was apparently instructed by them to contact you in order that you could assist him with his efforts and find buyers for the drugs produced, and hence produce the moneys demanded primarily by the Khiers and Haddaras. It was however frankly conceded by your counsel that not all the moneys raised in these illegal enterprises went to the Khiers and Haddaras, but that a fair amount of it was retained by yourself.
20 Intense negotiations have taken place between the prosecution and defence in this matter since May of this year and offers were made on your behalf to plead to certain matters which were then rejected by the prosecution. A satisfactory prosecution summary and indictment such as you were prepared to plead to did not occur until a late stage shortly prior to the hearing of the matter before me. I do accept however that an offer to plead has been on the table for some time.
21 There was a further dispute between prosecution and defence during this plea as to the role you performed in these drug manufacturing/trafficking activities, the prosecution asserting that you were the Number 1 in the enterprise; that you were a man who had always lived an expensive and flamboyant lifestyle which your profits from the illegal enterprise enabled you to maintained. The defence insisting whilst it was conceded you had retained profits for your own use, you were also under great pressure from the Khiers and the Haddaras to engage in production and sale of drugs in order to pay them moneys they believed you owed them. That in essence you and Al Shiakhly were partners in an enterprise which was initiated by him on orders from the Kahier family.
22 Mr Al Shiakhly was dealt with by His Honour Judge Smallwood on 16 August 2011 on charges of trafficking in a large commercial quantity of a drug of dependence and other lesser charges, but which related essentially to the manufacture by him of about 1.6 to 1.7 kilograms of methylamphetamine between May and November of 2010. I certainly accept that some of that manufacture occurred additionally to any enterprises you carried out with him, you and he in any event falling out several months prior to Al Shiakhly arrest in November 2011 and he himself falling out with the Khiers and retreating to Phillip Island where he set up another clandestine laboratory which was ultimately discovered by police.
23 On his arrest Al Shiakhly made a very long confessional statement to police and gave undertakings to give evidence against other drug traffickers and manufacturers and has been held in lock down secure conditions at the gaol for his own protection the entire time he has been there. His wife and child have been placed in the witness protection program which he himself will probably have to enter on his release from gaol on a lifetime basis. In those circumstances Judge Smallwood found that his plea of guilty was at the highest end of attracting a discount, finding also that much of the case against him was created by his own admissions.
24 He described Al Shiakhly's undertaking to give evidence as extremely dangerous and having lifelong consequences for him. He ultimately sentenced him to a total effective sentence of three years and six months, with a minimum term to be served of 18 months. Your counsel frankly conceded that you were unable to give such an undertaking because it was simply too dangerous.
25 In any event as I have said, there was a real dispute between prosecution and defence as to the role that you played in the enterprise. The prosecution did concede that you were under pressure from the Khiers and the Haddaras, although it was maintained that you were nevertheless a very major player in that illicit activity; a leader in it if you like insofar as Al Shiakhly was concerned and that you gained considerable profit from it above and beyond the moneys you paid to the Khiers and the Haddaras.
26 In the end I am satisfied as to the basis on which you became in the drug trafficking enterprises, but I am also satisfied that you did profit handsomely from it and that yours was a critical role in terms of organisation of the manufacture, participation in and disposal of the drugs. In saying this I am not necessarily accepting the prosecution version of your role, but do accept that without your participation and organisation, the enterprise would not have been as successful and profitable as it was.
27 Whilst participation in this enterprise may not have come about but for the Khiers and Haddaras insisting upon you in joining in this serious drug activity with Al Shiakhly, who himself was under pressure from those two families to produce money and drugs for them, once you were involved your role was a major and as I have said, critical one in this large scale trafficking activity.
28 I now turn to your personal circumstances. You are 36 years old, arriving in Australia with your family from Lebanon when you were 11, the youngest of four children. Your father worked as a sales representative while your mother had the occupation of home duties, and despite the poverty and exposure to violence that you and your family experienced during the Lebanese Civil War, it was apparently a cohesive and supportive family.
29 You had a happy childhood and completed Year 10 at Box Forrest Secondary School receiving poor marks, you being a difficult child and teenager who did not fit in well; got into fights and struggled with English and mathematics.
30 Despite your Muslim background you experimented with alcohol, forbidden by the Islamic religion and engaged in drug use with marijuana and cocaine, leaving home when you were 18 and married for the first time. You have been married four times, meeting your current wife Zena in 2005 with whom you have a four year old daughter. You wife continues to be supportive of you.
31 You worked as a labourer on leaving school, went into the butchery trade and branched out into a number of business activities where you worked as a sales person, a personal assistant to a CEO and developed a talent for business in general, ultimately owning a Halal butchery business, a chicken shop, a car dealership, a carwash business in Fawkner, moving into international business via a timber concession in the Solomon Islands where you were selling timber to the middle east and generally it would appear, making a large amount of money along the way.
32 Your wife and your family live in a large property in Greenvale which was purchased for $2.8m. early in 2011, which apparently contains a small golf coarse and which your counsel informed me was purchased by you with a view to development. You own a small plane and have driven luxury cars. I note for example that in the affray matter you arrived at the house in Broadmeadows in a Hummer that you owned and for the last few years I also accept you have lived in a flamboyant and luxurious manner as a result of your successful business undertakings.
33 You have offended on a regular basis over the years, your criminal history commencing in 1995 when you received suspended sentences for theft of a motor car, theft and attempting to commit an indictable offence. In that year you were also fined for behaving in a riotous manner in a public place and received a suspended sentence in the County Court for armed robbery and intentionally or recklessly causing injury.
34 You received a second suspended sentence later that year for theft of a motor vehicle, attempting to obtain a financial advantage by deception and criminal damage by fire. You were fined in 1997 for theft of motor vehicle. In 1998 you received a nine month sentence of imprisonment, three months of which was suspended on a charge of obtaining property by deception. In 2000 you were fined for possessing ecstasy and you received another suspended sentence that year for robbery. You were ultimately dealt with by suspended sentence for being unlawfully on premises and criminal damage in 2001.
35 In 2003 you received a two year gaol sentence from the County Court for charges of obtaining property by deception and obtaining financial advantage by deception. In 2005 you received a 12 month suspended sentence from the County Court for handling stolen goods and in December of that year the County Court imposed a two year suspended sentence for recklessly causing serious injury.
36 I note from my sentencing remarks in March this year, the armed robbery and associated charge in 1995 was an incident where you retrieved $800 allegedly, "ripped off" from a friend via a hold-up using a toy pistol followed by an assault. The two year sentence in 2003 for obtaining property by deception and obtaining financial advantage by deception involved you supplying false particulars to a bank in a loan application. The charge of handling stolen goods in 2005 related to your purchase of a stolen yacht which you apparently sailed in, in full view to Port Phillip Bay. Again that year the charge of recklessly causing serious injury arose from an incident where you intercepted a man stealing mail from a former girlfriend's house, chasing him and ultimately seriously assaulting him.
37 You have been held in gaol since 2011 in relation to these matters, initially at the Melbourne Assessment Prison and then being transferred to the Melbourne Metropolitan Remand Centre. You were then informed by prison authorities that there were security issues relating to you, possibly in the form of death threats made against you and you were placed for two months in the Melaleuca High Security Unit at Barwon Prison and then in the Acacia High Security Unit where you have remained ever since. The conditions there are difficult, you having no contact with other prisoners and you are locked in a cell for 21 hours a day.
38 Forensic psychologist David Ball has attended you on a number of occasions since 2011. In his report dated 21 March 2012 which was tendered on the earlier plea, he was concerned at the isolation in which you were held, diagnosing you with an anxiety and depression level such that you then satisfied Diagnostic Statistician Manual criteria for adjustment disorder with mixed anxiety and depression at a chronic, that is continuous level which he said was directly due to your conditions in the high security units. He had seen you in June 2011 and by March 2012 believed your condition had deteriorated.
39 In his report dated 12 December 2012, however it was Mr Ball's view that your mental state had improved stating, "Whilst he has previously presented with significant signs and symptoms of depression and anxiety, he appears to have habituated and largely adjusted to his conditions."
40 You do suffer from a gastric disturbance as a result of stomach stapling procedure you had previously undergone to treat obesity which reacted badly to the prison diet, but told Mr Ball you were now simply coping with it and that you were sleeping relatively well. Mr Ball stated, "MO exhibited no signs of frank mental illness such as psychotic ideation, hallucinations or delusion in his speech or demeanour in clinical interview. He previously reported some dissociative symptoms where he sees white dots on cell walls. He said that he had been prescribed glasses which have largely alleviated the problem."
41 You impressed Mr Ball as a high functioning man who had generally exercised good judgment, expressed clear insight into your general psychological function and had a full scale IQ within the normal range. He found no evidence of cognitive impairment. You apparently spend your days watching television, using your computer and reading the Koran and it appears to be the situation that you are regularly visited by your wife and daughter, but this occurs only once a month, your daughter being distressed in a box visit. Your parents and elderly and unwell and you have considerable anxiety about them.
42 In his statement to police Mr Al Shiakhly described a series of threatening incidents perpetrated by the Khiers upon you, including a plan to carry out a drive-by shooting and an incident where three cars, one of them containing Nasa Khier arrived at your home and you were ordered in, driven away after shots were fired around your feet, then threatened with being shot in the leg unless you produced more money, and released home.
43 On 28 February 2011, the day on which you were due to attend court for the affray matter, a shot was fired through your bathroom window and you suffered a minor injury to your leg.
44 I accept, as does the prosecution, that you endured a degree of intimidation and fear at the hands of the Khiers and Haddara families throughout this time and that the security issues for you in prison are now such that any sentence you serve is likely to continue in your current circumstances for the foreseeable future. Indeed, this morning before commencing these sentencing remarks I was informed by your counsel Mr Van de Wiel SC that you had yesterday been informed by prison authorities that after imposition of this sentence you will simply be moved to another cell in the Acacia Unit and that is where you will thereafter serve any sentence I impose upon you.
45 I also received evidence on the plea that you have engaged in a number of charitable enterprises. In particular an unsigned reference from one Sandra Webber a former CEO of the Fitzroy Stars Aboriginal Youth Club Gymnasium, talked of the mentoring role that you played. She also spoke of you organising a working bee on a refuge for victims of sexual and domestic assault, you arranging also for donation of toys and clothes and household items for the residents. In the Solomon Islands you have also carried out charitable activities according to your counsel and have had a mosque built there.
46 The offending of course is extremely serious, involving your organisation of and involvement in a number of amphetamine productions and sale of the product. It was the prosecution submission that as much of this activity occurred whilst you were on bail for the affray matter, this was an aggravating factor. But given that I have accepted that these activities arose directly from that affray and the subsequent demands of the Khiers and Haddaras, this aggravation has less weight in my view than it otherwise might have.
47 This was however, large scale amphetamine production and sale. It was highly professional and as I stated earlier, the enterprise could not have continued or succeeded as it did without your participation and organisation.
48 It was urged upon me by your counsel that the notion of parity insofar as the sentence imposed on Al Shiakhly is concerned, should not be entirely abandoned in your case. The problem I have with that submission is that upon my reading of the sentence, His Honour Judge Smallwood was very much concerned with the information provided to police by Mr Al Shiakhly and the risk involved to him and the long term consequences arising from it, rather than a determination as to the level of involvement by him. Those factors which in my view weighed most heavily upon His Honour in imposing the sentence that he did, have simply no application in this case.
49 I accept that your concern over your own safety and the safety of your family is such that you are not prepared to make similar undertakings or provide the sort of information that Mr Al Shiakhly has. I do accept that on your release from prison it is most likely you will have to leave the State but that has more to do with the nature of your own relations with the Khiers and the Haddaras which arose prior to your arrest, rather than as a result of your breaking the Criminal Code and providing evidence to the police about them.
50 In sentencing you I take into account your plea of guilty which I accept was one you were prepared to make for some time prior to the ultimate resolution of this matter into a plea. I accept that the committal conducted on your behalf in these matters was limited and for specific purposes, to further enable the settling of this matter into a plea. I accept that the conditions in which you are held in prison are extremely onerous and will continue into the foreseeable future. I accept that you have prospects of rehabilitation and that you have previously demonstrated an ability to work productively and indeed, have a good work record if I could put it this way. I accept that your plea of guilty has saved what would otherwise have been the expense of a lengthy and complex trial. I also accept that there is genuine remorse on your behalf.
51 I note that in your last interview with Mr Ball you stated, "I have no excuse to justify the stupid actions I undertook in the year leading to my arrest. I did these things and nothing I can say now can take them back or change what I did. I am embarrassed and ashamed of being involved in such actions. Over the years I have always labelled people who sell drugs as being parasites of our society and it is a shameful way of earning a living. Being involved in this sort of behaviour I have wronged this community and brought shame to my family. In the process I have written off all my legitimate accomplishments that I worked really hard for from 2004 to 2010."
52 It was Mr Ball's view that despite the fact that you now seem to be managing those difficult conditions in prison, they are, "Far more onerous than would be the case for the majority of other prisons. Even as a remand prisoner his visits are restricted. He has no contact with other inmates and no access to employment or rehabilitation programs." It is Mr Ball's view that after your release you will require extensive rehabilitation, re-orientation back into the community as a result of what he described as years of solitary confinement. I also note that in his report of March 2012 Mr Ball stated that you were regarded well by prison staff, as cooperative and easy to manage and this is also a matter to your credit.
53 It was the prosecution submission that I should sentence you to a term of imprisonment with a head term of between nine and a half to 11 years and a minimum term of seven to eight years. This was based on the quantity of drugs manufactured and trafficked, the role they submitted you played, that it was a sustained course of conduct for over a year, your prior convictions, your offending whilst on bail and what they said was your financial motivation.
54 Whilst I have accepted that your role was a major one, it was not in my view one where it could be said you had of your own volition, set up a sophisticated manufacture and trafficking organisation solely for the purpose of profiting from such an enterprise. However, I do accept that your role was a critical one, but given what I have also accepted was the way in which it began and the pressure put upon you to continue the amounts of money that you handed over, the fact that it did arise out of your participation and offending, the co-accused who then pressured you to act as you did and because you had to pay over large amounts of moneys to the Kahiers in particular, I am not prepared to accept that the proposed sentence is an appropriate one. Further, it is my view that the mitigatory matters I have mentioned, in particular the manner in which you are being held in gaol also militate against such a sentence.
55
However, because of the critical nature of involvement and the fact that you did exploit financial gains from this illegal enterprise over a period of time, and because you do not bring with you the sort of mitigatory material that
Mr Al Shiakhly did, it is my view that the sort of sentence he received is also not applicable in your case. I therefore sentence you as follows. Could you stand up please sir.
56 On Charge 1 you are sentenced to six years imprisonment. On Charge 2 you are sentenced to two years imprisonment. On Charge 3 you are sentenced to six years imprisonment. On Charge 4 you are sentenced to six years imprisonment. On Charge 5 you are sentenced to six months imprisonment. The base sentence will be the sentence imposed on Charge 1 which is six years. I order that one year of each of the sentences imposed on Charges 3 and 4 be served cumulatively to the sentence imposed on Charge 1 and to each other and that six months of the sentence imposed on Charge 2 also be served cumulatively to Charge 1 and to all other sentences, giving a total effective sentence of eight years and six months. I direct that you serve a minimum of five years and six months imprisonment before becoming eligible for parole. I direct that 503 days of this sentence have already been served by way of pre-sentence detention.
57 Thank you, you can have a seat.
58 MR PIRRIE: If Your Honour please.
59 MR VAN de WIEL: Thank you.
60 MR PIRRIE: Your Honour the (indistinct) does that have to have a commencement of dates seeing it is separate.
61 HER HONOUR: Yes I have expressed it badly. I apologise. Yes the base sentence is the sentence imposed on Charge 1 which commences today, which is 20 December 2012. The sentence imposed on Charge 3 will commence on 20 December 2013. The sentence imposed on Charge 4 will commence on 20 December 2014. The sentence imposed on Charge 5 will commence today. I order that six months of the sentence imposed on Charge 2 be served cumulatively to all other charges. I do not actually have to put a date for that.
62 MR PIRRIE: I will just check Your Honour. I think you do have to specify a date I am instructed Your Honour.
63 HER HONOUR: This is the head sentence.
64 MR PIRRIE: The head sentence is Charge 1.
65 HER HONOUR: So that that sentence will commence on - - -
66 MR PIRRIE: Today.
67 HER HONOUR: No.
68 MR PIRRIE: The head sentence is Charge 1.
69 HER HONOUR: Yes but Charge 5 if I have to express it in terms of dates, so that there is a six month cumulative effect will have to commence on 20 June 2019. That means that there is six months of it that will go over.
70 MR PIRRIE: Yes we understand what Your Honour is doing. We think that might be right Your Honour.
71 HER HONOUR: I order that the - that is the head sentence Mr Van de Wiel. I have now got to order a recognisance in order to take care of the minimum, because it is Federal sentencing. I order that MO be released on a recognisance in the sum of $10,000 after serving five years and six months. The recognisance - I do need some assistance here as to the length of the recognisance.
72 MR PIRRIE: I am sorry, what was that Your Honour?
73 HER HONOUR: The recognisance to be of good behaviour has to last for a particular period of time.
74 MR PIRRIE: That is open ended Your Honour. So the non-parole period is five years six months. The recognisance release order is open-ended as I understand it.
75 HER HONOUR: I think I have to order with an undertaking to be of good behaviour, which ordinarily I would state for a period of eight years and six months after.
76 MR PIRRIE: After the release?
77 HER HONOUR: Yes. That would be three years.
78 MR PIRRIE: Three years, yes.
79 HER HONOUR: Yes I order that MO be released in the sum of $10,000 on recognisance to be of good behaviour for a period of three years after a period of five years and six months starting from today.
80 MR VAN de WIEL: So would that have the effect of losing the benefit of the 553 days?
81
HER HONOUR: No it does not. It is the way as I understand it
Mr Van de Wiel.
82 MR VAN de WIEL: No I am concerned about the interpretation by others. I understand what Your Honour is trying to do.
83 HER HONOUR: It is the way I had to express it under the Commonwealth legislation. I have to express it in terms of - when you are doing a cumulation I have to express - I am sure you are aware of this Mr Van de Wiel. It is just in terms of how I express the minimum term which is by way of an undertaking, a recognisance which is after five years and six months.
84 MR PIRRIE: If Your Honour could just excuse me for one minute I need to check on something.
85 HER HONOUR: Of course.
86 MR PIRRIE: Your Honour there is a recognisance release order that has to be signed, so we will organise for that to come up to Your Honour this morning.
87 HER HONOUR: It also has to be - - -
88 MR PIRRIE: We will get it up here as soon as possible.
89 HER HONOUR: I think it has to be signed by MO as well.
90 MR PIRRIE: It does so it will be up here in 20 minutes.
91 HER HONOUR: That is fine. I have to sentence somebody else this morning.
92
MR PIRRIE: We will get it up here straight away. We will communicate with
Mr Van de Wiel and Your Honour and get the recognisance release order up here.
93 HER HONOUR: Thank you.
94 MR PIRRIE: As Your Honour pleases.
95 HER HONOUR: Is there anything else that I need to attend to? Were there any orders that I had to sign?
96 MR PIRRIE: No Your Honour, no.
97 HER HONOUR: Thank you. Yes take MO down please. Thank you. We will stand down until 10.30 thank you very much.
(At a later stage.)
98 HER HONOUR: I have the recognisance that your instructor kindly faxed through. I will just go through the sentence again so everyone understands it clearly. Charge 1, six years imprisonment commences today's date. Charge 2 is two years imprisonment. I have ordered that six months of that be served cumulatively. I am going to leave the sentencing date of that until the end, because that is the last date I give. Charge 3, convicted and sentenced to six years imprisonment to commence 20 December 2013. Charge 4, convicted and sentenced to six years imprisonment to commence 20 December 2014. Charge 5 is six months imprisonment which will commence today. That is the State charge. Charge 2 will commence on 20 June 2018.
99 MR PIRRIE: Yes that is correct Your Honour.
100 HER HONOUR: That means that the head term ends in June 2021. Maybe I have done that wrong. I think it should have been commenced 20 June 2019.
101 MR PIRRIE: Yes I think that is right Your Honour. It should be 20 June 2019 and that takes it to 20 June 2021.
102 HER HONOUR: Which is eight years and six months.
103 MR PIRRIE: Yes.
104 HER HONOUR: We have 2012, eight years gives you 2020 and then six months more gives you June of 2021.
105 MR PIRRIE: Yes.
106 HER HONOUR: Minus two years.
107 MR PIRRIE: 20 June 2019.
108 HER HONOUR: Right, so two years, so it should be June 2019?
109 MR PIRRIE: That is correct.
110 HER HONOUR: Thank you. Does it make sense to you Mr Van de Wiel?
111 MR VAN de WIEL: Clear as mud. I am still stuck with the English, that he be released in five years and six months, minus 553 days, while we have sentences which go beyond that if he is released on a recognisance.
112 HER HONOUR: Sorry?
113 MR VAN de WIEL: The three year recognisance that he is released on after doing five years and six months, why have we still got sentences starting during the time of his recognisance?
114 HER HONOUR: Because that is simply to make up - - -
115 MR VAN de WIEL: The eight and a half years.
116 HER HONOUR: Yes.
117 MR VAN de WIEL: I understand that, it is just the logic that is all.
118 HER HONOUR: True. Very well, but as long as I have the wording of that right. So Charge 2 which should commence on 20 June - we will just print that out. Print it out now and I will sign it because they might want to get him back on the lunch time bus.
119 MR VAN de WIEL: We will take these calculations as fulfilling the requirement of Your Honour to have to explain the sentence to MO.
120 HER HONOUR: I thought that was going to be your job.
121 MR VAN de WIEL: I am happy to do it.
122 HER HONOUR: No sorry, I will explain it.
123 MR VAN de WIEL: No you do not have to. You have already done it; he understands.
124 HER HONOUR: Really?
125 MR VAN de WIEL: He understands, even the language as strange as it is, he does understand it.
126 HER HONOUR: Mr Ball did say he was a very intelligent man. Do you understand MO, it is eight and a half years, five and a half minimum. You have already served 503 days. That is the effect of it.
127 MR VAN de WIEL: 503?
128 HER HONOUR: Yes
129 PRISONER: It is 20 months since I have been in custody Your Honour.
130 HER HONOUR: We had better sort that. MO - perhaps if you go and speak to MO about that Mr Van de Wiel. On the indictment too Mr Pirrie, Charge 4 should be - the statement of offence at the bottom of Charge 4 needs to be changed to traffic in a marketable quantity, not manufacture. It should be traffic rather than manufacture.
131 MR VAN de WIEL: Your Honour if we start custody on 7 April 2011, we go until today which is 12, we get one year and eight months approximately.
132 HER HONOUR: Let us do it month by month all right?
133 MR VAN de WIEL: Yes.
134 HER HONOUR: So you have seven from 30 in April, so that is 23 days in April. Then May is 31 days, June is 30, July is 31, August is 31, September is 30, October is 31, November is 30, December is 31. Then you have January 31, February 29, March is 31, April is 30, May is 31, June is 30, July is 31, August is 31, September is 30, October is 31, November is 30 and December. I come to 623 days.
135 MR VAN de WIEL: Yes Your Honour.
136 MR PIRRIE: I have not got a pen Your Honour so - - -
137 MR VAN de WIEL: I pinched his pen.
138 MR PIRRIE: So I have not been able to add any of this up.
139 HER HONOUR: Let us have a look.
140 MR VAN de WIEL: No I agree with Your Honour.
141 HER HONOUR: Of course you do.
142 MR PIRRIE: Your Honour I think if we can agree on the maths to start off with. I think that the time between his arrest on 7 April and now is 623 days. Then you take off 60 which was declared that brings it back to 563 days. In the summary I think we had 550 something days PSD but I think - - -
143 HER HONOUR: I have taken off the PSD twice.
144 MR PIRRIE: Yes you have taken it off twice.
145 HER HONOUR: So it should actually be 563 days. So we will put that in, so it is 563 days of pre-sentence detention.
146 MR VAN de WIEL: But of the 60 days we get two days credit because we have served those in custody on the affray matter, so we get another two days.
147 HER HONOUR: So it is 565 days have already been served by way of pre-sentence detention.
148 MR VAN de WIEL: That is right.
149 HER HONOUR: Thank you. I am glad we have corrected that.
150 MR VAN de WIEL: In the course of that we have certainly explained it to MO.
151 HER HONOUR: Thank you Mr Van de Wiel.
152 MR PIRRIE: The recognisance release orders have to be signed Your Honour.
153 HER HONOUR: Yes that is correct. I am just waiting for that because I have to (indistinct) soon. Should not there be something in the recognisance order about how many dates?
154 MR PIRRIE: No Your Honour apparently not.
155 HER HONOUR: Thank you. Can you take that down to MO to be signed, thank you very much.
(Order signed.)
156 HER HONOUR: Is there a reason for these copies? I have signed three extra copies.
157 MR VAN de WIEL: Better that he signs everything then we have a signed copy, the Crown has a signed copy and the court has a copy.
158 HER HONOUR: Thank you. I will get that signed as well. Are we done? All right. Thank you very much everyone.
159 MR PIRRIE: My pleasure Your Honour.
160 MR VAN de WIEL: Thank you Your Honour.
161 HER HONOUR: Thank you for your assistance. Have a very happy Christmas and New Year and break and everything.
162 MR PIRRIE: Likewise Your Honour.
163 HER HONOUR: Thank you to all the prisoner officers and staff and MO and the security, thank you very much. Have a great Christmas. Thank you, we will adjourn sine die, thank you very much.
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