Director of Public Prosecutions v Nessim

[2024] VCC 1947

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-02490

DIRECTOR OF PUBLIC PROSECUTIONS

v

MILAD NESSIM

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May, 28 August, 14 November 2024
DATE OF SENTENCE:	29 November 2024
CASE MAY BE CITED AS:	DPP v Nessim
MEDIUM NEUTRAL CITATION:	[2024] VCC 1947

REASONS FOR SENTENCE

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Subject: Criminal law - sentence

Catchwords: Pleas of guilty to one charge of trafficking in a drug of dependence, one charge of disposal of a traffickable quantity of firearms and one charge of  possessing a drug of dependence – offending to support habit – unsophisticated – role of facilitator – parity – long history of drug use and associated offending – poor health – limited application of Verdins – late plea – delay – no further offending for 6 years

Legislation Cited:    

Cases Cited:

Sentence: two years and 4 months, with NPP 9 months 

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Dickens (plea) Ms Hudson Jones (sentence)	Office of Public Prosecutions
For the Accused	Mr S. Kelly	Stary Norton Halphen

HER HONOUR:

1Milad Nessim, you have pleaded guilty to one charge of trafficking in a drug of dependence, one charge of disposal of a trafficable quantity of firearms and one charge of possessing a drug of dependence.  I will be imposing a sentence of imprisonment, with a non-parole period of nine months, meaning that is the time you will have to serve before being eligible for parole.  I will explain the reasons for that sentence, I will ask you to listen carefully.

The charges

2The charge of trafficking drugs refers to three separate transactions, on 25 July, 14 August and 24 August 2018, involving a total quantity of 1100.9 grams of mixed substance, but 92 grams of pure drug. 

3Charge 2 relates to two firearms which you disposed of to a Police Operative UCO308 on 16 August 2018.  When the police arrested you and searched your premises on 29 November 2018, they found a small quantity of methylamphetamine.

The offending

4A man named Cornal Blanchett sold methylamphetamine to covert police operatives on nine occasions, between June 2018 and 31 August 2018. 

5On three of those occasions, he sourced the drugs from you.  That is, on
25 July and 14, 24 August.  A telephone intercept was placed on Blanchett's phone and attempts were noted of you trying to contact him in the days leading to 25 July.  You used code to arrange the supply of methylamphetamine to Blanchett on 24 July.  A conversation between the two of you that day confirmed that you had supplied an ounce to Blanchett and it was 2 grams short. 

Charge 1, the first transaction - 25 July. 

On that date, Police Operative UCO308 met Blanchett in a car park and in Blanchett's car he handed $2,600 to Blanchett, whereupon Blanchett handed him a plastic container with a quantity of crystal substance in it.  This substance was later analysed and found to weigh 14.3 grams, which included methylamphetamine with a purity of 88 per cent.

6Those men then discussed the price for an ounce of methylamphetamine.  Blanchett stated the price would be $5,100.  UCO308 then left.  On 1 August 2018, the two met at the same location and Blanchett handed UCO308 a ziplocked bag containing a quantity of crystal substance.  UCO308 gave him $5,100.  This is an uncharged act.  They then discussed the purchasing of firearms.  Blanchett said he could supply .32, .22 and .45s, referring to calibre firearms.  He said he could purchase a firearm for about 8 or 9, meaning 8,000 or $9,000.  He said when they were talking on the phone, he would refer to the calibre of firearm as 'metres of concrete'.

7On 7 August, UCO308 rang Blanchett and asked him about his progress in sourcing firearms.  Blanchett said he was meeting someone that evening to find out what firearms were for sale and when they could be purchased and he would let the operative know.  On 8 August, UCO308 rang Blanchett and left a message in code asking about his progress and referring to purchasing methylamphetamine.  Later that day Blanchett told UCO308 in code that he could help him with the drugs and that he was going to Sydney the next day to sort out the “other thing”, meaning the firearms.  The second transaction on
14 August is also a part of Charge 1.

Charge 1 – continued – second transaction 14 August

8On 13 August, UCO308 contacted Blanchett to arrange a further drug purchase of 1 ounce.  Blanchett then contacted you, Mr Nessim, and ordered 2 ounces of methylamphetamine.  On 14 August, UCO308 and Blanchett met in the same car park as previously.  Blanchett had with him two ziplocked bags of crystal substance.  UCO308 got into Blanchett's car and Blanchett handed him a ziplocked bag containing a crystal substance which he said had contained
28 grams, but he had removed 2 grams.  This was later analysed as being methylamphetamine weighing 27.7 grams, with a purity of 82 per cent.

9UCO308 handed Blanchett $5,100.   Blanchett placed the other bag behind the front passenger's seat.  Blanchett then told the operative that he could provide him with Glock and a .44 firearm and that the supplier wanted $24,000 for them.  He said they could see the firearms the next day and he dialled the number of  a supplier, who in fact was you.  On loudspeaker, you read out the details of a firearm you said was a 'British Bulldog' and that one was a .45.  The operative asked for a photograph of the firearm details and later that evening, he received a picture of the piece of paper from  Blanchett had been reading which read '357 Revolver and British Bulldog 45'.

Charge 2, disposal of the firearms. 

10This took place on 16 August 2018, after the second drug transaction.  Eight days before the third and final drug transaction.  On 15 August, UCO308 sent Blanchett two messages that went unanswered, asking if the meetings that night and the next day were going ahead.  The next morning, 16 August, you and Blanchett discussed the sale of the two firearms to UCO308, including a price.  You assured Blanchett that the firearms were 'really good'.

11During the day Blanchett and UCO308 arranged to meet in Campbellfield.  UCO308 and another Police Operative UCO316, went to the immediate vicinity of the meeting place and soon afterwards Blanchett called UCO308 and the two met in a nearby car park, in a car driven by Blanchett.  The arrangement was that they would travel together and would follow you.  Blanchett and UCO308 then got into UCO308's car and began following you. 

12Both cars eventually parked in a street in Fawkner.  UCO308 got out and introduced himself to you and you told him you needed a few moments before the transaction could take place.  Back in UCO308's car Blanchett told him that they would be going to your friend's address because you did not want the transaction occurring in your home with your family present. 

13The two men then followed you to the garage of a unit in Tabilk Street where an unknown man took a white bag from under a work bench and removed two vacuum sealed bags.  He cut both bags open and revealed two revolver firearms, each wrapped in cloth.

14UCO308 examined the firearms and you stated there was 'nothing on them'.  You negotiated the price with UCO308, stating it was $23,000, which was agreed upon.  UCO308 left and met UCO316 and collected $23,000.  Back at the garage he handed the money to you and received the two firearms sealed in the vacuum bags.  UCO308 then left.

15A short time later he met with Detective Senior Constable Collyer and handed him the sealed bags.  They were later analysed with the following findings.  The first firearm was a .357 Magnum calibre Uberti brand 1873 Cattleman model, single action six shot revolver.  The second firearm was a .455 Webley revolver MK2 calibre, Belgium brand, bulldog model, selective double action five shot revolver.  In both firearms the serial number had been erased and the barrel shortened.  Each was in working order and had a quantity of suitable cartridges with it.

16Moving on now to the third drug transaction, still part of Charge 1 on 24 August.

Charge 1 continued – 3^rd drug transaction 24 August

17On 22 August Blanchett arranged with UCO308, using code to describe the drugs, to supply 2.5 ounces of methylamphetamine.  They agreed to meet on Friday.  Blanchett rang you and told you this and that the purchaser was the same man as last week, referring to the purchase of the firearms.  You agreed to supply the drugs for 4,200, to go on Blanchett's “tick”. 

18Blanchett and UCO308 met on 24 August in a car park in Bayswater and the transaction took place in the same manner as on the two previous occasions.  UCO308 handed $12,250 to Blanchett in return for three Ziplock bags of crystal substance.  Each bag was later analysed and found to contain methylamphetamine weighing 27.9 grams at 80 per cent purity; 28 grams at 82 per cent purity; and 14 grams at 83 per cent purity.

19A search warrant was executed at your home on 29 November 2018 and you were arrested.  Police found one Ziplock bag containing white crystal substance in your bedroom which you admitted was ice, that is Charge 3.

20At the police station you gave a no comment record of interview.  Blanchett was arrested the same day and a large quantity of items relating to a clandestine laboratory with drug paraphernalia was found.  He made partial admissions and denied knowing you other than meeting you on the day the firearms were sold to UCO308.  He later pleaded guilty and was sentenced by me on 18 December 2019.

Gravity of the offending

21Trafficking in drugs and dealing in firearms are both inherently serious offences and can attract severe sentences.  The maximum penalty for drug trafficking simpliciter is 15 years' imprisonment, and for disposal of a trafficable quantity of firearms it is 10 years, for possession of a drug of dependence it is one year or 30 penalty units.

22The total weight of the drugs seized was 119.9 grams of mixed substance, including methylamphetamine.  This was equivalent to 92.2 grams of pure methylamphetamine which exceeds the quantity for trafficking simpliciter and so is classified as a commercial quantity however, it is not alleged that you knew of that purity.  Your offending was in order to support your own habit.  The scheme was not organised or highly sophisticated in that you were using your brother's mobile phone, which could be easily traced to you.  The role you played is inherently part of the assessment of the gravity of your offending.

23Ms Dickens submitted on behalf of the prosecution that your role in the drug trafficking was greater than a mere facilitator and that it was comparable to that of Blanchett, who was sentenced to two years' imprisonment for trafficking in a slightly lower amount.  You sourced the drugs, but it was also clear that you were not holding a quantity in your home for this purpose. 

24As to the sale of the firearms, Ms Dickens submitted that yours was not a passive contribution but you actively facilitated the transaction, which does not reduce your moral culpability.  The prosecution position is that your active involvement in each case was more than merely putting people in touch with each other and you were equally culpable with Blanchett over a considerable period of time.

25Mr Kelly, on your behalf, submitted that your role was indeed that of a facilitator and was secondary to that of Blanchett, to whom you displayed deference.  Ms Dickens asserted that there was no such deference but an analysis of the conversation between you and Blanchett on 24 July does leave that interpretation open.

26On balance there is little difference between the roles played by the two of you, with the scales tipping slightly in your favour, but with no discernible difference to the outcome.  Parity has some application, although limited, because of the different charges for which Blanchett was sentenced, including trafficking in a commercial quantity, which meant a prison sentence combined with a CCO was not available.  In effect he has no prior convictions.  The principles in Verdins were enlivened to some extent to reduce his moral culpability and the need for specific deterrence was somewhat reduced.  His overall sentence was three years with a non-parole period of 18 months.

Personal background and circumstances

27You are now aged 74 and suffer from poor physical and mental health.  Your plea hearing was adjourned part heard for investigation of medical conditions from which you suffer.  You have lived in Australia since migrating here with your family after finishing secondary school in Egypt.  You worked consistently since then in factories and as a truck driver, and later operating market and retail businesses.

28You were married to your first wife for 20 years and had two children and later a third child with your second wife.  Since 2007 you have been in a de facto relationship with Tracey Fenech.  You have remained close to your second wife who has several health difficulties and you and Ms Fenech support her in various ways and consider her part of your family.

29At the time of the offending you were addicted to methylamphetamines and your extensive criminal record bears out a long history of drug use and associated offending, as well as multiple driving offences.  In June 2016 you were convicted of attempting to import a border controlled precursor and sentenced to
30 months' imprisonment, to be released after 18 months.

30Whilst in custody your son Michael died suddenly and this has had a deleterious effect on your mental health.  You have been diagnosed by clinical neuropsychologist, Laura Scott, with significant depression and anxiety with mood changes appearing to have worsened after Michael's death, partly because of the guilt you have felt from being in custody at the time.

31Ms Scott's opinion was that depression and anxiety are likely to be the primary causes of your observed cognitive and functional impairments noted by your partner and daughter, and confirmed by Dr Ghaly, a neurologist, you saw in 2022.  There are also indications of early vascular dementia consistent with a transient ischemic attack in 2019, and a history of heavy smoking.  According to your general practitioner, your long list of physical ailments includes hypertension, heart disease and high cholesterol.  You suffer chronic pain resulting from injuries sustained in two car accidents and you may require surgery on your lumbar spine in the future. 

32You are prescribed many different medications for these conditions which are managed by Ms Fenech, who drives you to your appointments.  You also have reportedly rising PSA levels which have been a matter of great concern to you.  You had an MRI on 23 August followed by a biopsy on 24 October.  This disclosed a low grade cancer with active surveillance being recommended.  This will involve PSA testing every three months for the next year, and a repeat MRI and biopsy planned for October 2025.

33In July this year, some two months after the adjournment of your plea hearing, you suffered a myocardial infarction requiring two stents.  Your cardiologist states you are now stable and due for review in November.

34When you appeared in this court on 14 November you experienced an episode of dizziness and were taken by ambulance, I believe to the Royal Melbourne Hospital.  You gave a history of experiencing chest pain that morning.  According to the discharge summary dated the same date, on examination you were found to be medically stable and were discharged home.  Your general practitioner was asked to review you for what were described as 'anxiety type symptoms'.  A letter from your GP, Dr Neng, confirms that he has increased the dosage of the appropriate medication.

35Returning to Ms Scott for a moment. She considers that there is a moderate risk that your health would deteriorate in custody and that your complex health needs would be difficult to manage in prison.  One of your prescribed medications for pain is MS Contin and I am told that that would not be available for you in custody.  These circumstances give rise to limbs 5 and 6 of the decision in Verdins, which is to say that I must take into account that imprisonment may be a greater burden for you than for others. 

Mitigating factors

36I take that into account as a mitigating factor and there are a number of others. 

37Your plea of guilty was entered at a late stage but when you were no longer facing the much more serious charge of trafficking in a commercial quantity.  The plea can be accepted as an indication that you have accepted responsibility for the offending and the avoidance of a trial must result in a discount on your sentence.

38Delay is a further mitigating factor, in that almost six years have passed since the offending and you have not offended again.  You are not to be held responsible for the delay associated with ongoing negotiations and the applications you made for sentence indications, but you are entitled to the acknowledgement of the stress of having the matter hanging over your head for so long as extra curial punishment, and I take that into account.

39The absence of any further offending also indicates good, rather than guarded, prospects for rehabilitation when considered with strong family support.  As an older man whose health has deteriorated considerably since the offending and now suffering complex health issues, you present as a low risk to the community and these combined factors lead to more lenient sentencing than might otherwise be appropriate.  This will be reflected in both the head sentence and the non-parole period.

40I have given careful consideration to imposing a Community Correction Order and indeed you were assessed as suitable, but I have concluded that the seriousness of the offending in the particular circumstances, combined with some degree of parity, require a head sentence with a non-parole period.  If a Community Correction Order had been appropriate it would have been in combination with a prison sentence.

Sentence

41Mr Nessim, I sentence you to the following terms of imprisonment.

42For Charge 1, two years.

43For Charge 2, 12 months.

44For Charge 3, three months.

45The sentence for Charge 1 is the base sentence for the purposes of cumulation.  I order that four months of the sentence for Charge 2 be served in cumulation upon the base sentence.  The sentence for Charge 3 will be served concurrently.  This results in a total effective sentence of two years and four months.

46I order that you serve nine months before being eligible for parole.  That is a very modest non-parole period which takes into account your health difficulties. 

47You spent two days in pre-sentence detention and I declare that as to be reckoned as already served and I shall note that on the court record.

48If you had pleaded not guilty to these charges I would have sentenced you to a total effective sentence of three years with a non-parole period of 18 months.

49The prosecution seeks an order for forfeiture of a phone and a pistol and for disposal of a driver's licence and cards.  I do not believe there is any objection to that, is that right Mr Kelly?

50MR KELLY:  That's right, Your Honour.

51HER HONOUR:  I make those orders.

52Now are there any other matters?

53MR KELLY:  Not from my perspective, no, no Your Honour.

54HER HONOUR:  Mr Kelly, would you like the gaol order to reflect any custody management issues such as the need to see a nurse, in respect of medication?

55MR KELLY:  Yes.  I would seek that Mr Nessim be seen by the custody nurse.  I am not aware whether Mr Nessim has a copy of his medication but I will try and facilitate that today, so that the custody nurse has a list of what Mr Nessim is prescribed.

56HER HONOUR:  All right.

57MR KELLY:  That would be the only notation I'd seek.

58HER HONOUR:  Thanks for that Mr Kelly.  Anything further from you, Ms Hudson Jones?

59MS HUDSON JONES:  No, Your Honour.

60HER HONOUR:  Thank you.

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