Director of Public Prosecutions v Nasery

[2018] VCC 2204

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01716
CR-18-01275

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMMED NASERY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 December 2018
CASE MAY BE CITED AS:	DPP v Nasery
MEDIUM NEUTRAL CITATION:	[2018] VCC 2204

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Backwell	Office of Public Prosecutions
For the Accused	Mr Gibb	Valos Black

HIS HONOUR:

1Mohammed Nasery, on indictment ending 0551.2 you have pleaded guilty to one charge of robbery and one charge of attempting to obtain property by deception.  There is a victim impact statement related to that indictment which I have read and take into account.

2On indictment ending 60154 you have pleaded guilty to three charges of trafficking a drug of dependence and one charge of attempting to pervert the course of justice.  You are now 33 years of age and you have pleaded guilty to each of the indictments at a reasonably early opportunity.  I accept that in your current circumstances you have appropriate remorse and you must of course get the utilitarian benefit of those pleas of guilty.

3You have a long and unfortunate criminal history and it reveals a use of drugs over an extended period of time.  You have now been out of gaol since 2017 when you received a 29 day sentence.  In regard to matters you have done 111 days on remand to be counted as PSD.

4Insofar as the indictment for the robbery was concerned your two co-accused in that received straight sentences of each of less than 12 months.  On the other indictment ending 154 I am advised from the Bar table that there are other co-accused and that they essentially received combination sentences.

5I have never been given the details of those matters but as it is agreed from the Bar table a combination is within a range for these matters and I do not really need to be concerned about it.

6The summary of the offending is insofar as the robbery is concerned in 2016 I have indicated in this situation I am going to do this in very brief form and there is no real argument as to what the ultimate results are going to be.

7You were involved in a robbery from a drug dealer named Capuano.  He was selling drugs to make money obviously and also had his own business.  He was lured in effect into a circumstance where he was robbed of drugs and money was sought from him.

8He eventually told police about this and you were charged.  A credit card as I understand it was used and that gives rise to the charge of obtaining money by deception.  So far as interviews and the like are concerned and the co-accused I do not propose to take it any further.  Their sentences were well within range of what I am going to give you and essentially can be described as a drug deal gone wrong, although Mr Capuano I am sure got a very big fright.

9Insofar as the other matters are concerned they are of a different nature and you were on a community corrections order and this is in 2017 and were being treated as part of that by a drug counsellor who is known to many of us and who has been seen to give sworn evidence by many of us.

10In any event, that is a matter for another day as I understand it.  In any event, between 4 July 2017 and 12 July 2017 you engaged in trafficking cocaine and methylamphetamine to him involving seven transactions.  On 1 September 2017 you engaged in a single transaction of trafficking cocaine to him and that gives rise to Charge 3.

11The total amount over that period of time was 11 grams of cocaine and about 5.5 grams of methylamphetamine.  I do not propose to go into that in any more detail.  I understand there is a trial to proceed in the future under top secret circumstances so I will leave that where it sits.

12As I have indicated there are co-accused but you are not giving evidence for the Crown although you were prepared to do so and there is no real discount involved in all that.  Probably of more importance in your situation is that again this gentleman in mid-September 2017 you arranged with this man to supply you with urine supplied from a third party that you could then submit to Melbourne Pathology for drug testing on the pretence that it was your own.

13That was arranged in the knowledge that yours would test positive for the presence of drugs and it would place you in real difficulty in terms of community corrections order and also in respect of County Court plea.  How many times he has done that is anybody's guess but the situation is that it is to pervert the course of justice.

14Whilst it is understandable in your particular situation the courts have to rely upon this testing and these matters as being accurate in passing sentences that are appropriate and passed according to law.  In my view it is a serious example of attempting to pervert the course of justice and the authorities are clear that when that occurs there must be a custodial sentence of relatively significant proportions.

15Each attempt to pervert the course of justice stands on its own and accordingly has to be looked at in its individual situation, but in the end a combination sentence on all of these matters is appropriate and I turn to your history which again can be done in very simple form.

16You came to Australia from Afghanistan having lost your father at a young age.  You were able to complete schooling and indeed completed VCE at Reservoir Secondary College.  You have subsequent to that attempted to do a TAFE course but became addicted to drugs and they have essentially ruined your life.

17You do have a work record of sorts but because of the drugs you have poor mental health and the criminal offending that has flowed from that.  You were married in 2009 and have a son now aged eight.  Your wife left and went to France and then advised you that she was not coming back and you have had no further contact with them.

18The situation of the trafficking and the pervert the course are self-explanatory and what has occurred though is that since you have been released from prison you have undergone various units to complete a certificate in railway infrastructure and you have done further training with John Holland to become a qualified rail industry worker.

19Indeed the matter as I understand it was adjourned on a number of occasions so that you could complete those courses.  You have been employed during that time.  Your mother suffers ill health and you being incarcerated is going to place a burden on her but not one of exceptional circumstances.

20In that sense it is very unfortunate that your older brother died of a drug overdose in September of this year and it means that you have more family responsibilities and I accept that that is a powerful reason as your counsel points out for you to remain drug free.

21I sentence on the basis that undergoing a sentence knowing that your mother is in those difficulties will be more difficult for you than it would for other prisoners.  It is normally the situation that I very much avoid if possible sending people back to prison who have been released already but unfortunately in the circumstances of this offending in my view is sufficiently serious that there is no other option than but to do that.

22I have taken into account the report of Dr Watson-Munro which outlines your history and talks about depression and the battles that you have had during your life.  I have taken into account all the certificates that have been provided and I have had you assessed for a community corrections order.

23If you agree that community corrections order will start upon your release from custody and will involve the circumstances of or the conditions of drug rehabilitation and mental health if you agree.  That will be for a period of two years and it will be with conviction and there will be no work hours involved in it.

24It seems to me that the prospects of your rehabilitation should be good if you can keep yourself directed and if you can avoid the use of drugs the risk of you re-offending should be limited.  If you are upon your release enticed back into using drugs I would have thought the risk of you re-offending would be about 100 per cent.

25They are all matters for you.  As I say, I do not like putting people back in custody for a significant period of time unless it is unavoidable but yours is a situation where it is unavoidable.  Accordingly on the charge on the first indictment you are sentenced to an aggregate period of six months' imprisonment.

26On Indictment 2, that is the second indictment, Charge 1, six months, Charge 2, six months.  That sentence is to be served totally concurrent with the sentence imposed on Charge 1.  On Charge 3, six months and on Charge 4, six months.

27I direct that one month of the sentence imposed on Charge 3 and three months of the sentence imposed on Charge 4 be served cumulatively upon each other and upon the sentence imposed upon Charge 1.  That gives an effective head sentence of ten months.

28I direct that this sentence be served wholly concurrently with the sentence imposed on Indictment 1.  That means that the total effective sentence is incorporating both indictments is a period of ten months.  I direct that a period of 111 days be reckoned as having been served under this sentence and a CCO if you agree to sign it will be on the second indictment only for those charges.

29So far as the first indictment is concerned, 6AAA, I say you would have been sentenced to be imprisoned for nine months and in all the circumstances of these matters on the second indictment but for your plea of guilty you would have been sentenced to be imprisoned for a period of two and a half years with a minimum term of one and a half.

30Does that make sense to you, Mr Backwell?

31MR BACKWELL:  Yes, Sir.

32HIS HONOUR:  So your sentence is ten months with 111 days served and a two year CCO to follow with conviction.  You can go now, Mr Gibb, and see your client.  That is entered into.  I will just indicate I refer to no authorities or anything in this situation seeing as these are just Australian factual will sort the matter out in this circumstance.  Take him now, thank you.

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