Director of Public Prosecutions v Mustafa

[2015] VCC 1826

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -13-02034

DIRECTOR OF PUBLIC PROSECUTIONS

v

METO MUSTAFA

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 December 2015
CASE MAY BE CITED AS:	DPP v Mustafa
MEDIUM NEUTRAL CITATION:	[2015] VCC 1826

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms J. King
For the Accused	Dr G. Lyon QC with Mr P. Smallwood

HER HONOUR: 

1Meto Mustafa, you have pleaded guilty before me to one charge of dealing with money being $100,000 or more reasonably suspected of being the proceeds of crime, contrary to sub-s.400.91 of the Commonwealth Criminal Code, and two charges of possessing a controlled drug, contrary to sub-s.308.11 of the Criminal Code.

2The facts underlying your offending are as follows.  On July 18 2013, at about 7.10 pm, AFP members saw you getting out of the driver's side door of your blue 2009 Toyota Corolla sedan, which was parked in the vicinity of Dorcas Street, South Melbourne.  There was no one else in the car and you were then seen walking around the front of the car, towards the front passenger door.  The car was registered to you.  You were approached by police who executed a warrant and then searched the car.  There, they found money totalling $151,900 inside an orange plastic bag and a Tiger brand shoe box sitting on the front passenger seat.  The cash was made up of 30 bundles of $50 and $100 notes.

3In the driver's side door pocket, police located 1.4 grams of cannabis.  They also found a locked and remotely wiped Blackberry mobile phone, which was PIN locked and on being asked, you told police you did not know what the PIN number was.  Two other Blackberry mobile phone, not said to be related to the offending, were also located in the car.  Also in the centre console, police located a black leather wallet containing 0.4 grams of cocaine in a small slip seal bag, which on analysis amounted to 0.2 grams of pure cocaine. 

4You were taken to AFP Headquarters in La Trobe Street and later that night, police attended your home at 56 Swindon Avenue, Keilor Downs, where they executed a warrant and then inside followed firstly, an esky hidden in a space in the garage and beneath the floorboards of a bedroom, a white plastic bag containing 373.1 grams of cannabis.  Two, a black VB esky bag containing three plastic bags, which was located on the top shelf of a hallway cupboard.  The three bags contained a total of 1.1319 kilograms of cannabis.  In total, police located 1.505 kilograms of cannabis in your house.

5Analysis was done of your income and expenditures between 1 July 2012 and the date of arrest and you were found to have legally available to you amounts between $36,530 and $44,108 in cash at the time of this offending.

6This matter proceeded by way of contest.  I was informed by your counsel that the entirety of the hand up brief was not available at the time of the contested committal, which was conducted on 23 October 2013, which was however a brief and confined committal relating only to questioning of the informant and documentation underlying the charges laid against you.

7Ultimately, over a period of time, although the matter was listed for trial, negotiations took place and counsel who appeared for you in the plea, were briefed in September of this year, at which time negotiations, it seems, were satisfactorily resolved.

8I now turn to your personal circumstances.  You are 32 years of age, the second of three children born to your parents who immigrated here from Cyprus in 1977.  It appears all three sons have developed into hardworking people, two of whom run their own business.  Your eldest brother, Mert, is employed at Telstra and has two small children.  Your parents have clearly been extremely hardworking people.  They run a dry cleaning business in Bacchus Marsh, which they have owned for about ten years.  Previous to this, your father was a dry cleaner at two large hotels and before that, worked as a taxi driver.  Your mother worked as a cleaner and now works with your father in the dry cleaning business.  Your family is close.

9You completed Year 12 in 2000 at Keilor Downs College, starting an aerospace engineering course, but was different to what you had expected and you dropped out in your first year.  You have a good, strong work history.  In 2001, you worked at Sanity Music, then between 2001 and 2007, worked at JB Hi Fi.  Whilst working at JB Hi Fi, you started your own business, PMR, in 2005 which initially focussed on the installation of car stereos, but has developed to the point where you generally install car accessories such as reverse sensors, camera and rear seat entertainment such as DVD players.

10You work for yourself and you engage a number of contractors.  You are constantly on the road visiting car yards that contract you for particular jobs.  You work very long hours.  Your business suffered a setback in 2011 because satellite navigation systems, which had previously only had been an extra feature which was later installed became part of standard features in certain new cars and a significant part of your business disappeared.

11However, it also seems that the business continues to be successful and indeed, I received two impressive references from Mr Albert Gigacz, who is the chief operating officer of Future 210 in his report dated 25 September 2015.  He noted that you have been one of that company's aftermarket dealers since December 2007 and that he found you to be an honest and trusting person.  I also received a reference from Ray Stevens of Total Collision Repairs, who, in his reference dated 25 September 2015, described you as hardworking and reliable, who has undertaken a number of responsible activities with his business.  He describes you as someone that he trusted implicitly.

12Other impressive references written by family members were also tendered on the plea and I am satisfied you come from an extremely law abiding and hardworking family who thoroughly disapprove of the activities you have involved yourself in and have been extraordinarily worried about the outcome of this case.

13You are married to a hardworking young woman, who laid down the law, if I could put it that way once your offending came to light, and made it clear that the success of your marriage depends, in large part, on you desisting from mixing with undesirable persons with whom you were clearly in contact.  Mention of those persons also being made by your brother in his reference.  It appears these persons are people that you went to school with.

14The offending occurred more than two and a half years ago.  You have a limited prior criminal history, which I do not regard as particularly relevant to the sentencing exercise before me.  I am impressed by the fact that since being charged with this offending, you have put your head down and stayed out of trouble.

15During the plea, I made comment of the fact that there were two particular issues of which I was concerned.  The first was that it is clear you have involved yourself with some very, to put it in parlance, heavy criminal types.  Your counsel has received instructions and informed the court that your role, and I understand this is accepted by the Crown, was essentially one of courier.  However, to be a courier of this amount of money, which is money which is the proceeds of crime, indicates that your associates are engaging in very serious crime and that whilst the role of courier might be at the lesser end of whatever criminal structure is behind the activity, which is under the surveillance of police, you are nevertheless an essential part of it and it means you are associating with particularly concerning people of criminal character.

16It means that someone like yourself who has worked very hard to build up a business places himself at extraordinary risk as you may well know.  You have been caught up in a police investigation of a much more serious and wide nature than you may even have realised, but that is inevitably the fate of people like you who choose to involve themselves with the sort of people that you are clearly involving yourself with and you need to understand that if you continue to associate with such people, the chances of you being caught up in another similar investigation has got to be high.  You are always going to be at risk if you are associating with some people.

17It seems to be accepted that whatever reward you were to receive, it was to be minor.  In fact, there is no evidence of your receiving any particular reward and your counsel informed me that on your instructions, you were to be paid $500.  That seems a paltry amount of money for the sort of risk under which you placed yourself.

18Secondly, I am concerned at the amount of cannabis found in your home.  It appears not to be contested that this was cannabis for your own use.  It is most fortunate for you that not one shred of evidence is available of any trafficking accoutrements such as scales, lists of people, plastic clip bags and the like.  If you have got that amount of cannabis lying around at home, and there is any sign of any of those trafficking accoutrements, you would be in about 40 times the trouble that you are in now.  In any event, it does mean, and it is freely conceded by your counsel, that you have an extremely heavy cannabis addiction.  My understanding is that you have been using cannabis on a regular and very heavy basis for about ten years.  In other words, you are addicted to cannabis.

19I am informed also that you have long-term trouble sleeping and you have turned to cannabis as some sort of solution to this.  Like every drug, the more you use, the more you need and you do need to acknowledge that you have an extremely serious cannabis and that means for you to obtain the amount of cannabis that you require, you need to associate with people who deal in large amounts of cannabis.  In other words, you are again putting yourself in the way of associating with people of considerable criminality.

20However, I am prepared to accept that you are a hardworking young man who, as I have said, comes from a hardworking and law abiding family, which continues to support you.  You are married to a hardworking and law abiding young woman.  In other words, you are in a very good environment and I do find that your prospects of rehabilitation are very promising to say the least.

21It is not my view that I need proceed, despite the seriousness of the offending, and it is serious, to imposing a sentence of imprisonment to be immediately served.  I am prepared to give you another opportunity.  You need to understand, Mr Mustafa, that if you ever get into criminal trouble again, the court will have a record of this appearance in the County Court.  You need to understand that in order to appear in front of the County Court, you have to have participated in offending that is considered so serious, it cannot be heard in the Magistrates' Court.  Any future magistrate or judge who might deal with you will know that your offending has been of such magnitude that it has brought you before this court and that you have been given an opportunity and if you offend in the future, that court will be satisfied you have not taken advantage of this opportunity that has been given to you.  In other words, Mr Mustafa, you have got a serious prior on your record.

22However, in my view, it is appropriate that I deal with you by way of a disposition which does not involve immediate imprisonment.  I propose to do that by way of a recognisance release order and by way of fine.

23In relation to Charge 1, I am going to impose of sentence of two years, but I am going to order that you be released upon you giving an undertaking to be of good behaviour and I am going to attach a recognisance of $5,000.  Now that does not mean you have to pay the $5,000, but it means that if you breach the order, part of what you will face is the payment of $5,000. 

24So under the order, you are to be of good behaviour for a period of 24 months.  I am going to add the condition that you undertake treatment for cannabis addiction and you are to continue that treatment as directed by the service that you attend upon.  I am also going to order that a report be given to this court confirming your attendance at a drug treatment centre.  I will order that that be in by 31 January 2016.  I am going to order another condition and that is that there be a further report from the treatment service by 30 June 2016 outlining the progress you have made and your attendance upon that service.

25In relation to the other charges on the indictment, on Charge 2, I am going to fine you $2,000.  On Charge 3, I am going to fine you $500.  So that is a total of $2,500.  I will give you a stay of three months.  That is, you must have paid that money by three months.

26OFFENDER:  Is that to the court?

27HER HONOUR:  Yes, I think that is right.  Yes, it is to the Registrar of this court.

28Pursuant to s.6AAA, I declare that - I have to do that, do I not, in relation to Commonwealth matters?

29MS KING:  I do not think it is mandatory.

30HER HONOUR:  Excellent, then I will not.  I hate to say that, but I think it is one of the reasons we like giving community corrections orders, we do not have to.

31Now, I will just need to - so, Ms King, the way that I do it, it says the court orders the release of the defendant under paragraph 20B after serving, I put zero months.  Do I just put nought?

32MS KING:  I can fill that in, Your Honour.  I have got another one.

33HER HONOUR:  Yes.

34MS KING:  And I will show it to my learned friend before we complete it, but I just wanted to clarify in relation to the first condition, that Your Honour specified, was it undertake treatment for cannabis and continue to do so as directed.

35HER HONOUR:  Yes, so it is one, to attend - so I will put it differently.  Within one month to attend upon - sorry, to attend for treatment for cannabis use and to continue treatment as directed by the particular service.  Does that make sense?

36MS KING:  It does.

37HER HONOUR:  Can you just read it back to me, Ms King, and I will see how it sounds.

38MS KING:  To attend for treatment for cannabis and to continue treatment as directed by a particular service.

39HER HONOUR:  No, it should have been the particular service.  So attend for treatment for cannabis use within one month.  Perhaps I will divide it up.  The first one is, within one month, to attend for treatment of cannabis use.  Two, to continue treatment - sorry.  To continue such treatment as directed by the service upon which you attend.  Three, to provide confirmation of attendance upon such service to this court by January 31 2016.  Four, to provide a report detailing attendance upon such service and progress of treatment by 30 June 2016.

40MS KING:  Was that 2016 or 15?

41HER HONOUR:  Sixteen.  So does that make sense?

42MS KING:  Yes, Your Honour.  Can I just speak to ‑ ‑ ‑

43HER HONOUR:  Do you want to read them back to me so we will see how they sound?

44MS KING:  Condition 1, within one month, attend for treatment for cannabis use.  Condition 2, to continue such treatment as directed by the service upon which you attend.  Condition 3, to provide confirmation of attendance upon such service to this court by January 31 2016.  Condition 4, to provide a report detailing attendance upon such service and progress of treatment by 30 June 2016.

45HER HONOUR:  Yes, that is fine.  Is there a problem, Ms King?

46MS KING:  Without being familiar with what the particular treatment service can provide, I am just a little bit concerned about Condition 2 in terms of their powers of direction, that is all.

47HER HONOUR:  All right.  It is a perfectly common condition.  You just say that you are to attend for treatment as directed by the service.

48MS KING:  I do not think ‑ ‑ ‑

49DR LYON:  We are happy with that, because what Your Honour is trying to achieve, I take it, is Mr Mustafa cannot unilaterally stop treatment.

50HER HONOUR:  No.

51DR LYON:  And if he has got a concern as to the quality, if he feels, for example, he is being exploited by the service, this is has to continue for five years, he can always come back before the court or go to another service.

52HER HONOUR:  Of course he can.  So he is to attend upon the service and undergo treatment as directed by the service.

53DR LYON:  Yes.

54HER HONOUR:  All right.  You are perfectly right, Dr Lyon.  I just do not want him deciding beauty, I have had four sessions, I am fixed now.  It is all over.

55DR LYON:  Feeling good.

56HER HONOUR:  All right, does that make sense, Ms King?  Are you happy with that?

57MS KING:  Yes, Your Honour.

58HER HONOUR:  All right, thank you.

59DR LYON:  Sorry, to be pedantic.

60HER HONOUR:  No, no, that is all right.  It is a good idea to be.

61DR LYON:  Silk seems to do it to you though.

62HER HONOUR:  I know, but that is sort of your job, is it not?

63DR LYON:  Yes.

64HER HONOUR:  Is that not one of the things you do when you go to Canberra, you say a promise to be more pedantic from now on?

65DR LYON:  We get the others to do the writing for us and then we say, why do you not put in these words.  I think Number 4 should be provide to this court.

66HER HONOUR:  Provide to, what did I say?

67DR LYON:  To provide a report.

68HER HONOUR:  I meant to put to this court, you are quite right.  That is not being pedantic.  I should have put that, thank you.

69DR LYON:  My work is done.

70HER HONOUR:  Pardon?

71DR LYON:  My work is done.

72HER HONOUR:  You work is done.  Thank you.  Yes, as I said, I do not particularly like doing pleas on the papers, but I must say, I would not particular relish having to do written submissions on a plea.

73DR LYON:  The way of the world, these days.

74HER HONOUR:  Yes.  I mean a lot of the time it works.  Thank you.  Have you got something there I can sign or do you need me to ‑ ‑ ‑

75MS KING:  I do.  I have completed an order, but I just do not have enough space to include the four conditions.  I am sorry, Your Honour.

76HER HONOUR:  My associate can type it in for you.  I will just stand down.  Just let me know when you are ready.  Then we will come back and finalise, thank you.

77(A short time later.)

78Are we sorted?

79MS KING:  Yes, Your Honour.

80HER HONOUR:  Thank you.  Terrific, fine, thank you.  All right, Mr Mustafa, we will just get you to sign that, thank you very much.  I will hand you back your references.

81So Mr Mustafa, you understand?

82OFFENDER:  I do, Your Honour.

83HER HONOUR:  So no trouble for two years and if you are brought back in front of me, you are looking at gaol in the face, all right?

84OFFENDER:  Yes, Your Honour.

85HER HONOUR:  All right, good luck.

86OFFENDER:  Thank you.

87HER HONOUR:  Thank you.  All right, happy Christmas to everyone.  I thank counsel for their assistance in this matter.

‑ ‑ ‑