Director of Public Prosecutions v Nessim

[2015] VCC 971

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01744

DIRECTOR OF PUBLIC PROSECUTIONS

v

MILAD NESSIM

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 June 2015
CASE MAY BE CITED AS:	DPP v NESSIM
MEDIUM NEUTRAL CITATION:	[2015] VCC 971

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	Ms A. Payten
For the Accused	Ms B. Franjic

HER HONOUR:

1Milad Nessim, you were found guilty by a jury of one charge of attempting to import a marketable quantity of a border controlled precursor, pseudoephedrine.  This offence was committed between 10 April and 22 April 2013 with Rihad Farra.  The maximum penalty for this offence pursuant to s.307.12(1) of the Commonwealth Criminal Code is 15 years imprisonment.  The circumstances of your offending can be summarised as follows.

2On 10 April 2013, a Customs officer picked up an x-ray anomaly on a package that had arrived from Egypt.  The package arrived through the express mail service and it was addressed to Jason Phillips at Unit 3, 1 Woodsocket Crescent, St Kilda.  The sender's details were in a foreign language.

3The package contained five cardboard packets that were labelled "Growth formula dietary supplements for under-weight people".  One of these packets was opened and it contained a red foil bag.  The foil bag contained small white ball shaped pallets which when tested, recorded a positive reading for pseudoephedrine.

4The contents of the package were later analysed and found to contain 1,972.6 grams of a substance containing pseudoephedrine, with a purity of 34 per cent or a total of 677.36 grams.

5Customs officers replaced the contents of the package and arranged for a managed delivery of it.  On 15 April 2013, on two occasions when delivery was attempted, there was nobody at the address.  As a consequence, an Australia Post collection card addressed to Jason Philips was left at the St Kilda apartment.  The card indicated that a signature was required on delivery of the package and a relevant phone number was provided for the recipient of the card to contact.

6A number of phone calls were made between Friday 19 April and Monday 22 April, regarding delivery of the package and arrangements were made for its delivery.  The person arranging delivery was a female who indicated the package was for her partner Jason Phillips.  These calls were made from a phone ultimately connected to you.

7At 12.15 pm, a Customs officer posing as a postman attended at the St Kilda apartment.  He recorded a conversation with you at the door of the apartment.  In the recording, you responded positively when you were asked if you were Jason Phillips and you handed to him, who you thought was a postman, the Australia Post collection card.  You then signed the delivery sheet that was presented to you and took possession of the parcel. 

8Whilst this was happening, other Customs officers were parked in a van in the street in St Kilda, in the vicinity of the apartment.  These officers had a search warrant and entered the unit once you had gone inside.  The door to the apartment was open, with you and Farah inside.  It was obvious the apartment was undergoing renovations.

9The package had been opened by you both and the five internal packets were found on the top of the oven in the kitchen.  You and Farra were both arrested.  The officers also had a search warrant in respect of the cars you were both driving.  In your car was the mobile phone with the number corresponding to that of the person who made enquiries with the authorities regarding the delivery of the package.

10Analysis of one of Farra's phones showed regular contact between 16 and 22 April with you, in close proximity to the time enquiries were being made by a phone connected to you regarding delivery of the package.

11You were interviewed by Customs officers on 22 April 2013 both at the apartment and at the Customs Office and you indicated that you had never heard of the name Jason Phillips before.  You said you were at the apartment to give a quotation to Mohammad otherwise known as Farra, re-sanding the floor.  You had gone to the apartment, walked outside to your car and the postman gave you a parcel out the front.  You took the parcel and gave the postman a tip.

12You denied giving anything to the postman (that is the delivery card) other than the tip and you maintained that you had no idea what was in the parcel. 

13You were born in Egypt in 1955, the youngest of seven siblings and came to Australia when you were 18 years.  You are currently aged 60.

14You have two children aged 34 and 35 from your first marriage.  You remarried and had another child who is 24.  You also have a number of grandchildren.  You have worked at the market and have operated your own retail business.  You have current medical issues, and as a consequence, you are currently on a disability support pension.

15I understand that you remain on good terms with your second wife, despite your separation.  The separation was, I was informed, as a consequence of a serious illness that she suffers.  You have carried on the role of both father and mother to your children.  You have strong support from all family members and I have received written references from them.  I accept that you are a good family man and that you have shown a strong commitment to each of them. 

16As to your current health, I have received reports from Dr Vivian Oraha dated 9 June 2015 and from Associate Professor Michael Quan dated 27 February 2014.  In respect of the report from Mr Oraha, you have been a patient of hers for the last two years.  She confirms multiple medical issues with you suffering from severe anxiety, depression, panic attacks, all high risk factors to cardiovascular disease.  She also notes severe refractory hypertension, weight issues and a family history of cardiovascular problems and osteoarthritis.

17Your health issues were evident in the course of this trial and you were noticeably unwell with high blood pressure on one of the sitting days.  I accept that all of these medical conditions combined, will make your time in custody more onerous for you. 

18Your counsel also submitted that I should take into account the delay in the matters being finalised, with the number of trials commencing and not able to be completed to verdict since mid-last year, through no fault of your own.

19I accept and take into account that there has been delay in finalising your matters and that you have been subjected to increased pressure over this period of approximately a year, due to factors not attributable to you.

20You have a number of prior convictions.  These relate to both driving and drug offences.  You have previously received suspended sentences in respect of some of these offences.  Your driving history is not good.  Your drug priors relate to possession and use of various substances between 1995 and 2006.

21In Nguyen & Anor v R, 2011 VSCA 32, the principles that apply to this kind of offending are set out. As those applied to this case; 1) your role – you or persons connected to you, initiated contact with the relevant people to arrange for the delivery of the package to the St Kilda apartment. Although you may not have been a major person involved in this attempted importation, your role, along with Farra, as those who were to receive the package that was delivered to the address, was an essential part of a criminal enterprise; 2) Quantity.  The markable quantity for this offence is 3.2 grams.  A commercial quantity is 1.2 kilograms.  The pure weight in this case was 677.36 grams.  There was substantial amount of precursor in the package; 3) Benefit.  There was no material before me regarding any benefit you were to receive for your involvement.  Although from the circumstances of the offence, I can infer that you were involved for profit; 4) The maximum penalty.  The attempted importation of illegal drugs is a serious criminal offence with the maximum penalty of 15 years.  Offences of attempting to possess are not for that reason in a less serious category than that of importing the drug; 5) General deterrence.  The difficulty of detecting drug importation offences and the great social consequences that follow with the availability of drugs, means general deterrence is to be accorded significant weight in sentencing individuals, who are involved at any level in this activity, and that stern punishment will be warranted in almost every case. It is necessary to signal to others that potential financial rewards are not neutralised by the risk of severe punishment.  Involvement at any level in drug importation must necessarily attract a significant sentence, otherwise the interest of general deterrence are not served.

22In respect of parity, there are some distinctions between you and Farra.  First and most importantly, Farra pleaded guilty to this offence and I accept that he was remorseful for his conduct, and that he had good prospects for rehabilitation.  You have a number of prior convictions.  Farra has none.  Both of you have health issues which I accept will make custody harder for you than other prisoners.

23The Crown conceded that:

1.  Farra's role in this offending was greater, with links to another similar      attempted importation in February. 

2.  Farra was the connection with the people who owned the apartment. 

3.  Farra had material in his car regarding false identities and other information further linking him to the apartment.

24Your counsel submitted that in balancing these considerations that you should not receive a greater sentence than Farra.  The prosecution did not accept that submission, arguing that Farra would have a justifiable sense of grievance if the penalty I imposed was the same.  I accept the prosecution's submission.

25Pursuant to s.16A of the Crimes Act, I must impose a sentence that is of a severity appropriate in all of the circumstances of the offence. Section 16A(2) of the Crimes Act obliges me in sentencing you to take into account matters referred to within that section, as are known to the court and I have done so.

26Whilst general deterrence is not specifically listed, it is a matter to be accorded weight given the nature of your offending.  Milad Nessim, I sentence you to a period of two years, six months imprisonment.  I order that you be released after serving 18 months on entering a recognisance in the sum of $1,000 to be of good behaviour for the period of two and a half years.

27If you are of good behaviour over the following two and a half year period, that will be the end of the sentencing process as far as this court is concerned.  If you are not of good behaviour, in all likelihood, you will be brought back before this and depending on the nature and seriousness of the transgression, the court can take no action, impose a fine, extend the period of your good behaviour, or impose a different penalty or revoke the recognisance release order and send you to prison for the remainder of your prison.  Is there any other matters?

28MS PAYTEN:  No further matters, Your Honour, if I could just have a moment to ‑ ‑ ‑ 

29HER HONOUR:  No.  Do you have the order there?

30MS PAYTEN:  I do have the forms.

31HER HONOUR:  Thank you.

32MS PAYTEN:  And I'll fill those in and hand them up in a moment, Your Honour.

33HER HONOUR:  Thank you.

34MS FRANJIC:  My mind, Your Honour, turns to pre-sentence detention and I'm just trying to recall whether it's any different in Commonwealth matters. 

35HER HONOUR:  I think the Commonwealth prosecutor might be able to help us here.

36MS PAYTEN:  No, it's no different in Commonwealth matters, Your Honour.

37HER HONOUR:  So what is the PSD?

38MS PAYTEN:  The PSD, Your Honour, if I could just have one moment?  My apologies.

39HER HONOUR:  That's all right.  Just do the order and then work out the PSD.  What date were we last here>

40MS FRANJIC:  We were last here on the 10th for plea, Your Honour.  But of course he was ‑ ‑ ‑

41HER HONOUR:  No, before that.  When was the verdict?

42MS PAYTEN:  It was 5 June, Your Honour.

43HER HONOUR:  On 5 June, very well. 

44MS PAYTEN:  Fourteen days, Your Honour.

45HER HONOUR:  Yes.  I declare 14 days PSD. 

46MS FRANJIC:  As Your Honour pleases.

47MS PAYTEN:  As Your Honour pleases.

48HER HONOUR:  Thank you.

49MS PAYTEN:  I've shown that to my friend, Your Honour.  If I could just hand that up?

50HER HONOUR:  Thank you.  All right, thank you.  Just stand down.

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