Director of Public Prosecutions v Omer

[2018] VCC 1401

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01144

DIRECTOR OF PUBLIC PROSECUTIONS

v

MUNIR OMER

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 February 2018
CASE MAY BE CITED AS:	DPP v Omer
MEDIUM NEUTRAL CITATION:	[2018] VCC 1401

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 D. Porceddu
For the Accused	Mr C. Harrington

HER HONOUR:

1You have pleaded guilty to a four charge indictment and a summary offence as follows:

-Charge 1, trafficking in not less than a commercial quantity of 1,4-Butanediol.  This offence carries a maximum of 25 years' imprisonment.

-Charge 2, trafficking in a drug of dependence, namely methylamphetamine.  This carries a maximum of 15 years' imprisonment.

-Charge 3, possess a drug of dependence, namely cannabis.  This carries a maximum of one year imprisonment, where I am satisfied on the balance of probabilities that the possession of the drug was not for a purpose related to trafficking, and five years in the alternative. In the absence of evidence and based on submissions only, I am not so satisfied in your case, and accordingly in relation to Charge 3, I see the maximum as being one of five years' imprisonment.

-Charge 4, negligently possess the proceeds of crime carries a maximum of five years' imprisonment and the summary offence of committing an indictable offence whilst on bail carries a maximum of three months' imprisonment.

2The maximums reflect the seriousness with which Parliament regards these offences.

3After submissions made on application for a sentence indication, I did give a sentence indication that should you be prepared to plead guilty to the draft plea indictment, which includes the charges to which you have just pleaded guilty, then I would not impose a period of imprisonment which required you to serve any further time in custody, and that I would also consider the imposition of a community corrections order.

4You have now entered a plea to those charges.  Now that I have given that indication and you have entered a plea of guilty, I  must now not impose a term of imprisonment outside the indication given.

5The circumstances of your offending have been set out in a document entitled summary of prosecution opening for sentence indication, dated 10 February 2018.  There is no challenge by your counsel to this document.  I also take into account the trial opening as indicated by Mr Porceddu and submissions made in addition, based on enquiries made by me.

6The objective gravity of your offending is said by both parties to be towards the lower end of the scale in the context of what was otherwise a lengthy and complex investigation with multiple alleged offenders.

7It would appear that your offending came about in circumstances where you were under considerable financial responsibility within your family, in combination with your own drug problem.  This meant you were vulnerable to the advance of others to become involved in the offending.  This in no way excuses your behaviour, but does set some context for it.

8Your personal circumstances have been set out by your counsel in very brief written submissions and in further oral submissions.  In short compass, you were 30 at the time of your offending and are now 32 years of age.  I understand that you came from Eritria and have five siblings.  Your mother and siblings all reside in Melbourne and have done so since 2015.

9You have now served some 610 days in custody in relation to your offending, which is the only time in custody you have otherwise been required to serve.  You have found your time in custody both a sanction and a deterrent.  In custody, you have done a range of courses and provided clean urine screens.

10You have an admitted criminal history of some three court appearances for a range of matters which are relevant to the matters before me, and for which you have previously been required to serve community corrections orders.

11I take into account your plea of guilty and note that it was to negotiated charges.  It therefore still represents a plea at an early stage.  I accept that it is a plea also of utilitarian value, has saved the court time and expense, and is one of remorse.  These are all matters which are in your favour.

12A range of references have been provided.  They are all considerably outdated, all being dated October of 2016. But they do reflect another side of your character as a committed family member.  I have also heard evidence before me today that you have employment available to you.

13The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters such as the seriousness of your offending, your culpability for it, your personal circumstances and the impact of your offending on any victim.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.  I do express my denunciation of your behaviour and find that given your family's support, prospective employment, the sanction of the time served to date, that your prospects for rehabilitation remain live.

14I have had you assessed as to your suitability for a community corrections order and despite a somewhat troubled history with the Office of Corrections, you have been found as suitable.

15I now turn to sentence and you need to stand.

16In relation to Charge 1, you are convicted and sentenced to 14 months' imprisonment.

17In relation to Charge 2, you are convicted and sentenced to eight months' imprisonment.

18I am satisfied in order to reflect the different circumstances of that offending that there needs to be a degree of cumulation.  Accordingly, four months of
Charge 2 is cumulative on Charge 1.  That makes a total effective sentence of 18 months' imprisonment, for which I reckon 610 days as served in relation to that period.

19In relation to the remaining matters, I am satisfied that I can impose an aggregate sentence and I do so.  I place you on a community corrections order for a period of two years.

20In relation to the remaining matters, you are required to report within two working days of the Carlton Office of Corrections.  During the period of that two year order, you are to perform 300 hours of community work, you to undergo treatment and rehabilitation in relation to drugs and you to undergo treatment and rehabilitation in relation to programs to reduce offending.  You will also be supervised by the Office of Corrections.

21In relation to the treatment conditions, I offset 100 hours of treatment in relation to the 300 hours.  So if you do 100 hours of treatment, that comes off the
300 hours that I have imposed.

22I can only place you on that order if you are prepared to sign a document to that effect.  Are you prepared to do so?

23OFFENDER:  Yes.

24HER HONOUR:  All right.  Are there any ancillary orders, Mr Porceddu?

25MR PORCEDDU:  No, Your Honour.

26MR HARRINGTON:  No, Your Honour.

27HER HONOUR:  All right, thank you.  Now is there anything further?

28MR PORCEDDU:  Your Honour, I think technically you might have to give a 6AAA.

29HER HONOUR:  I do.

30MR PORCEDDU:  Yes.

31HER HONOUR:  Thanks, Mr Porceddu.  I knew there was something else.  There's always something else.

32In relation to a s.6AAA declaration, but for your plea of guilty, I would have otherwise imposed what would amount to a total effective sentence of four years with a minimum of two years before being eligible for parole.

33MR PORCEDDU:  Your Honour pleases.

34HER HONOUR:  Thanks very much, Mr Porceddu.  I'm very grateful.  Otherwise, is there anything further?

35COUNSEL:  No, Your Honour.

36HER HONOUR:  All right.  I thank counsel for their assistance and I will close the court until 9 o'clock tomorrow.

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