Director of Public Prosecutions v Osman
[2022] VCC 1296
•11 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-00302
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SALEH OSMAN |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 June 2022, 1 July 2022 |
DATE OF SENTENCE: | 11 August 2022 |
CASE MAY BE CITED AS: | DPP v OSMAN |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1296 |
REASONS FOR SENTENCE
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Subject: Criminal Law. Sentence upon plea of guilty.
Catchwords: Trafficking in a drug of dependence - Possession of a drug of dependence
- Deal with proceeds of crime – Possess a controlled weapon without
excuse – Store an unauthorized explosive without approval – Evidence of
remorse – Drug abuse – Significant criminal history – Delay due to Covid-
19 - Positive prospects of rehabilitation.
Legislation Cited:
Cases Cited: Mill v The Queen [1988] 166 CLR 59; The Queen v Cockrell [2001] 126
A Crim R; Buckley v The Queen [2022] VSCA 138; Boulton v The Queen
[2014] VSCA 342.
Sentence: Total Effective Sentence of 341 days imprisonment and ordered to serve
a Community Corrections Order for 2 years upon completion of the
imprisonment term.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole | Sanah Butt |
For the Accused | Mr M. Gumbleton | Evan Adrianakis (Stephen Adrianakis & Associates) |
HIS HONOUR:1Saleh Osman, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely, methylamphetamine and to two charges of possession of a drug of dependence, namely cocaine and 1,4-Butanediol. You also pleaded guilty to three related summary charges of dealing with proceeds of crime, possession of a controlled weapon without excuse and storing an unauthorised explosive without approval.
2The offences took place in 2019 in July, at which time you lived alone in Craigieburn. As at that time you were unemployed and had no legitimate source of income. You lived what was referred to in the prosecution summary of the circumstances of your offending as, 'A relatively extravagant lifestyle evidenced by high value brand items in your rented premises, rented at about $1500 a month, a 2005 BMW coupe, sporting memorabilia and footwear.'
3Search warrants were granted in relation to your car and residence and on 11 July as you were driving on the Princes Highway bound for Geelong at about 8.30 pm you were intercepted and arrested at a service station for an unrelated matter. Your wallet was searched and a card in the name of Salwyn Zehan was found, as well as $1462 in cash and that's Summary Charge 4. Police searched your car and found a large knife in a black sheaf on the right-hand side footwell of the driver's seat, Summary Charge 6, a mobile phone, $195 in cash, part of Summary Charge 4, a Gucci shoulder bag with a Blackberry mobile phone inside it and a black Adidas backpack in the back footwell.
4Inside this backpack were two zip-lock bags each containing white crystal substance, together with three diaries which appeared to tick lists for transactions. You were taken to the Geelong police station. At about 11.50 that evening police searched your residence and no-one was present and a search located $2,500 in cash on the kitchen bench, again part of Summary Charge 4, a plastic bag with powder in the kitchen cupboard, a clear liquid in a ceramic bowl, a small notebook which appeared to record drug transactions from the main bedroom and eight boxes of Achtung brand fireworks on the garage floor, Summary Offence 10.
5The substances seized were taken to the Victorian Police Forensic Services and analysed. The white crystal substance contained methylamphetamine, one bag at 85 per cent purity, the other at 86 per cent purity with a total weight of 194.6 grams of which 165.97 grams was pure. This related to Charge 1 of trafficking. The white powder was 2.1 grams of cocaine, Charge 2, and the liquid was 1,4-Butanediol 90.4 grams, Charge 3, a possession charge.
6You were interviewed on that same day. You made a no comment response. In February 2020 a committal hearing was heard. You entered pleas of not guilty. After initial directions hearings in March bail was granted to you in June and the matter then was impacted by the COVID pandemic and it went through five more directions hearings. At the last one in December 2021, you offered to plead guilty. The plea proceeded in June of this year. I shall deal with the impact of this delay in a moment.
7Trafficking in a drug of dependence carries a maximum penalty of 15 years' imprisonment. Possession where the trafficking purpose is not excluded carries a maximum penalty of five years or 400 penalty units or both. Dealing with proceeds of crime has a maximum penalty of two years' imprisonment. Possessing a control weapon, one year or 120 penalty units, and storing unauthorised fireworks, 100 penalty units.
8Trafficking in a drug of dependence is a serious criminal offence. By applying to it the severe penalty mentioned above, the legislators have indicated that clearly this maximum is a first guidepost in the synthesis of factors which I take into account. In assessing the objective gravity of the offending, it is notable that the quantity of methylamphetamine is 64 times the trafficable quantity. I note the duration in relation to a single date by the dating of the particulars, but it is clear your trafficking derives from having these substances for the purposes of sale. You were operating an active drug trade which is signalled by the quantity of methylamphetamine, possession of cash, tic books, a trade beyond that is essentially tied to drug addiction but aimed primarily at financial gain.
9The prosecution noted that Charges 2 and 3 did not attract a higher penalty in relation to possession of the cocaine and Butanediol. Trafficking by its very nature is a serious offence and lies at the heart of the damage which drugs do to society, individuals, family lives, particularly among the young with consequential crime, health and mental health impacts to name but a few of its repercussions.
10I take your plea into account. It was not an early plea but was made after being committed for trial. The reduction in which the plea has attracted is reduced by the relative lateness of the plea. However, the plea has a significant utilitarian value which I take into account. It has avoided a trial at a time when pandemic conditions have severely hampered the criminal justice system from delivering timely outcomes. It is also made in this time when the prospect of imprisonment which itself has been impacted by the pandemic situation that has impacted negatively on the reman conditions of prisoners and prospects of imprisonment by severe restrictions, periods of quarantine and isolation, limitations on movement, transfers and accommodation, as well as opportunities for vocational work and recreational activities, rehabilitative programs, in person visits, always coupled by the potential for cotangent in the closed and limited environment of a prison.
11The plea will attract a reduction in your sentence. The value of the plea is enhanced by it being accompanied by remorse which I accept. I take your personal circumstances into account. You are 50 years of age, the second of six children of a family from Lebanon who migrated to Australia escaping war and political upheaval when you were quite young. You did not suffer abuse or neglect, violence or drug use in the family home. Your father was a hardworking man while your mother was a homemaker.
12Your family continues to provide a significant support both practically and emotionally. You have a close relationship with all of your siblings, all of whom are law abiding, married with children. One of the brothers-in-law is currently employing you. You attended school until age 16 and you were then employed in logistics for several years. When aged about 25 you began experimenting with drugs, cannabis and amphetamine. Thereafter this use continued and consolidated over the next 15 to 20 years. In your 30s you commenced cocaine use.
13During this period your relationship with family members deteriorated and your reliance on a network of negative influence and drug related associates increased which served to enmesh you further in a drug milieu. Over the last 25 years this brought you into contact with police and the criminal justice system, resulting in extended periods of incarceration which over the last
25 years has been for approximately 10 or more of those years.14Following release you usually did find the family willing to provide you with accommodation and support. You felt yourself to be the black sheep who had failed and was a burden on them. All your previous relationships have succumbed to your ongoing use of drugs and incarceration, leaving you in that period essentially alone. The life of drug abuse and drug related criminal conduct has exposed you to not only the diminished life of prison but to several violent events of assault and homicide.
15These impacted upon your mental health leaving to hypervigilance, nightmares and intrusive memories to add to the burden of reclusion. These periods strained family relationships resulting in depression and anxiety. This in turn has led you back to substance use in order to manage post custody life. Your prior history is significant. It begins in 1998 when aged 26 with dishonesty offences progressing to drugs, firearms, violence and further dishonesty offences. Already in 2000 you were sentenced to four and a half years with a non-parole period of two and a half years for trafficking in amphetamine and some dishonesty matters.
16Throughout the following years there is a sad litany of restored suspended sentences, drug and dishonesty offences and assaults. In 2008 you were imprisoned for six months for trafficking Ecstasy. In 2011 a community corrections order was imposed for a contravention of family violence interim order and in the following year that order was breached and further penalties imposed for a variety of criminal conduct.
17In 2014, three years and one month was imposed for drug related offences and then in 2016 a further six months was imposed for recklessly cause injury, persistent contravention of family violence. In 2017 you breached parole. You were fined. The 2011 community-based order is the only community-based disposition in your history. Your criminal history is clearly relevant and I take it into account in determining your prospects of rehabilitation.
18If one was to assess that prospect based alone on your priors, one may readily conclude that if you are not already institutionalised you are a recidivist whose prospects are poor. This has been the central issue for resolution in your case and one about which I have taken time to weigh up and reflect. Relevant to this assessment are three significant aspects. (1), your current circumstances. (2), your current state of mental and general health. (3), the delay which has occurred in this case and its consequences.
19Your current situation is one which would run counter to the assessment of your prospects which I have mentioned above. You are 50 years of age now. You remained on remand for about 11 months. Here I note that those months were spent on remand during the prevalent COVID-19 conditions I described before and which therefore is more onerous than under normal remand conditions. You were bailed in June 2020 and you remained offence free in that time. Nothing is pending in terms of matters before the court.
20For the last two years you have lived in a stable lifestyle which when coupled with the remand period means you have removed and remained crime free for some three years. When one looks at the frequency of your priors relating to criminal conduct that is significant in itself. You live in a private rental property which you have paid for and maintained for that post bail period. You have been employed as a labourer and building and landscaping by your brother-in-law for all that time.
21You are in a stable relationship with a woman who is a forensic psychologist employed by the health faculty at Deakin University and the outpost emergency services of the Salvation Army who is supportive of you. You are supported by your parents and siblings who have seen your transformations take realistic shape. In relation to your health, you are appropriately managing your diabetes with your GP. Most importantly, you have been drug free for some three years.
22This also given your long history of drug use, is a very significant step in your reclamation. Your remand may have this time been a catalyst for change, coupled with your age and a new sense of purpose and hope. Whatever the causes, you produce to the court a substantial record by way of urine screens from August 2020 right up to today, August 2022, the last six of which I received this morning.
23In my view this is an important consideration to take into account. A report was received from Mr Staios dated 19 June 2022. He is a clinical neuropsychologist who outlined your background history. You reported to him that you had engaged with a psychologist whilst in prison, as well as drug and alcohol counselling which you described as useful and he opined that you had demonstrated a willingness to change and engage in meaningful ongoing treatment since being bailed.
24You have engaged since June 2020 in such counselling and maintained sobriety since the point of that engagement. You reported that you continued to engage with Millswyn Clinic and continue to provide urine screens to confirm your drug free status and this morning I received a letter from a mental health clinician at the Barry Road Clinic, Mona Shafiq, dated 15 July 2022 in which she confirms that you had been referred under a mental healthcare plan to address your anxiety issues and that you have attended two sessions so far and you have expressed your willingness and desire to reframe your goals in life in order to improve self-esteem and personal confidence and a commitment to continue with focused psychological strategy sessions.
25You have described experiencing periods of depression and anxiety but appreciate the need to continue to engage in therapy to address your predisposing psychosocial vulnerabilities. Mr Staios administered the Million Clinical Multiaxial Inventory Assessment. Your profile had significant elevation on the post-traumatic stress disorder scale, anxiety scale, drug dependence, as well as avoidant and negative personality scales consistent with your experience of the past.
26You present with symptoms of subsyndromal post-traumatic stress, broadly defined as post-traumatic stress related to symptoms that are elevated but do not meet a fully diagnostic criteria. You've integrated in the past a number of maladapted traits with over reliance on negative and anti-social peer influences. Mr Staios opines that past a judgment to release from custody would need to be addressed in a therapeutic sense were you to be sentenced to further imprisonment which increases the risk of re-offending.
27Such incarceration according to Mr Staios would likely result in a deterioration in your mental state and overall rehabilitation prospects. Continuing treatment by a clinical psychologist to assist in ongoing therapy and management together with existing protective factors outlined above would probably reduce that risk in the future. I take this report into account.
28A letter from Amanda Brown from Lamberti Associates was tendered. It's dated 31 May of this year 2022. Ms Brown writes that following your release on bail you attended her rooms in June 2020 and that you engaged in a treatment program weekly, then fortnightly and then monthly. The urinalysis was provided in this context, twice weekly screens. She writes that you are focused on not returning to your previous lifestyle despite what remains a concomitant addiction to methylamphetamines.
29Having experienced the harsh symptoms of drug withdrawal in prison you are now engaging and enjoying your drug free status. This has been the first sustained period of treatment not only for this drug but for prescription medication. You've conveyed a sense of optimism which has persisted since you began. As of May 2022, there had been no sign of a relapse. I note that additional pathology reports which completed the demonstration of abstinence in the relevant period was supplied not only today but also on 1 July at the hearing of the plea.
30Two brief letters from Dr Ellis were also received, one on the 20th and on 27 June 2022. The first notes treatment you received for severe stress, anxiety and depression linked to your legal predicament. The second notes you had obtained a mental health plan to access psychological services. I infer that that's the referral that Ms Shafiq has written about in the letter tendered this morning. The doctor also listed some ailments pertinent to your back pain, gastroesophageal reflux disease, hypercholesterolaemia diabetes requiring insulin.
31This appears to be a referral but is unclear to who. In January of this year you tested positive for COVID-19 viral infection. In the context of your mental health, I note that as part of the court process of obtaining an assessment from Corrections for suitability the court's mental health advice and response service provided a brief letter of their assessment dated 24 June 2022. You've not had previous contact with the Victorian Public Mental Health Services but was registered with Forensicare in 2012.
32You were assessed as not mentally unwell and the report however recommended you have a mental health condition mandated on any Correction order to address your anxiety, depression and PTSD and I take those reports into account. Before dealing with the issue of delay I should like to refer to the references which were tendered on your behalf. Lisa Kerr, to whom I referred before, wrote on your behalf. You have been in a stable relationship with her for about three years.
33As a result of your bail conditions restrictions you have resided separately. She continues despite these difficulties to provide you with practical and emotional support. She is a single parent of three children and a psychologist. She writes that she has seen a tremendous amount of personal growth in your dedication to self-improvement and family activities. She notes that at the beginning of the relationship you displayed characteristics of being institutionalised. Your disposition has changed.
34You have committed more time to your family and with her children. She describes you becoming more trustworthy, empathetic and positive, substance free, not associating with negative peers. You have expressed remorse to her in relation to the impact of your offending on others, as well as regret for the effect on yourself and your family. You are in effect, she says, a different man. Further incarceration in her opinion would be a significant negative and retrograde step. You have her full support.
35Your younger sister, Mariam, wrote a letter on your behalf, described what she called 'Exceptional efforts to turn your life around.' You lived with her, her husband and children, for six months during the recent lockdown period of 2020. You have been employed by her husband. You have engaged with young and old members of the family actively participating in family occasions in a conscious effort to change your life. In a letter dated 28 June 2022 your parents have written on your behalf. They write of their sadness of losing you to drugs at age 26 when you had a successful truck driving career for a logistics company, but they have never abandoned you, visiting you in prison, attending court cases down the years.
36They too have seen a major shift in your physical and mental wellbeing which they describe as 'colossal'. You helped them with their medical needs. You spend much time with them. You have expressed regret and remorse of the time lost, the impact of your offending. They have welcomed your newfound approach to life and continue to support you and I take these letters of support into account.
37You were arrested on 11 July and spent 341 days in custody. The sentence is occurring three years after the offending. You were committed in 2020 and bailed on 9 June 2020. You pleaded guilty in January 2022 and it is now August 2022. It is in this context and in this timeframe that I come to sentence you. In my view the significant delay which has occurred in this case takes on a weight which must be accorded powerful mitigating force so its delay does not create an automatic right to a reduction. But the factors which are often inherent in significant delay are present here and they combine into a powerful argument for the court to take an unusual but reasoned approach to its sentencing discretion.
38The first limb concerns fairness to the offender in that a charge and its prospective consequences have been hanging over your head for all this period. This in my view is unaffected by your relatively late plea. A further seven months have elapsed since then but your not guilty plea in any event is a matter that goes to elucidate the delay, most of 2020 and 21, and it was taken up with administrative delays primarily due to the pandemic situation affecting the criminal justice system by reference to the chronology.
39The second aspect of delay and in this case the much more important aspect is that which pertains to progress made towards rehabilitation. In your case probably for the first time in 25 years there are positive prospects of rehabilitation. Prognostication as to this aspect is not a science, however in my view the last three years incorporating 11 months of incarceration, over two years in the community drug free, in a stable and supporting relationship, in the bosom of a family environment, in continuous and steady work away from past associates is a combination that bespeaks reasonable to good prospects.
40As was said in Mill v The Queen [1988] 166 Commonwealth Law Reports 59:
'The presence of delays calls for a considerable measure of understanding and flexibility in approach. The rehabilitation limb calls for evidence of both remorse and rehabilitation.'
41I am satisfied of both of these aspects in this case, the abstinence from offending is significant, the abstinence from drug use is a powerful factor, evidence of positive life changes is a powerful mitigating matter. I repeat the fact that an offender exercising the right to contest a charge is not to be considered your fault for delay and I am not of the view this was done to delay the process in any event.
42In my view it is reflective of the state of your mindset which has changed and developed positively in 2020 and 2021 and brought you not only rehabilitation but led you to the 2022 plea of guilty, reflective of your change in circumstances. This delay has provided an opportunity for rehabilitation. You have used that opportunity in a way that is rarely seen in the court's experience. Such achieved current and prospective change in your personal circumstances in my view calls for a merciful approach which of itself is not contrary to sentencing principles or the policy of the criminal law and which would not cause consternation in the public.
43The need to preserve the progress you have made so far is important because the community interest in an offender's rehabilitation and re-integration into the life of society is a powerful protective and productive factor. The process has commenced in a very practical and palpable way. To reverse that process would be retrograde and short sighted. In The Queen v Cockrell [2001] 126 Australian Criminal Reports that concept is elucidated. You are now 50 years of age. The Court must take into account the matters I have outlined in an instinctive synthesis which directs itself to sentencing principles.
44When I ask myself whether further imprisonment is the only option available, I am of the view that alternatives available to the Court are able to satisfy the principles of general deterrence, specific deterrence, denunciation and just punishment, balanced with prospects of rehabilitation. A combination sentence is in my view appropriate because the punishment and deterrent aspects are dealt with by the time served and the aspects of a community corrections order which is directed at penalty and retribution by way of unpaid work for the community.
45Other important aspects are all adequately addressed by this disposition. This is a sentence which in my view will minimise the risk of re-offending. The link between rehabilitation and risk reduction is axiomatic, as recently expressed in Buckley v The Queen [2022] VSCA 138. In the past 25 years the many years of prison have effectively only isolated you from the community, inducing as it does, institutionalisation and its enduring habits, all of which run counter to a life in the outside world.
46You have been fortunate to have broken that cycle but you have done so, in my view, primarily by your own volition and not by accident. A community corrections order, as the court explained in Boulton v The Queen [2014] VSCA 342, obliges you to take responsibility for your own life, enable treatment to continue, addresses the causes of your offending, consolidates by psychological and drug treatment the gains already made and needed to prosper in the future. The weight of the court's power is best directed away from deterrence and retribution, here towards rehabilitation and reclamation.
47You were assessed by Corrections for suitability for an order and found suitable. The report recited your prior engagement with Corrections your current situation and found you to be of low risk of general re-offending. It recommended a treatment and rehabilitation condition to deal with mental health, to do unpaid community work, to be supervised and be assessed and treated for drug use. I intend to place you with your consent on such an order for a period of two years.
48During that time you will perform 200 hours of community work. You must attend to all required supervision appointments and communicate actively with Corrections. You must not commit offences during this period. You must engage with them. You must not lose contact with Corrections. Have a phone and diary, for example, which you keep updated and which you can communicate with. You must attend to all appointments and attend to all the work requirements that you are asked to do. You must follow the mental health plan and you must obey all lawful directions.
49If you breach or you are in contravention, or you re-offend during this period of time, Mr Osman, you can be brought back before the Court for that breach and be punished for the breach, as well as be re-sentenced for these offences. Do you understand?
50OFFENDER: Yes, Your Honour.
51HIS HONOUR: On the charge of trafficking you are convicted and sentenced to 341 days' imprisonment and to then be subject of a community corrections order for two years, as outlined, to do 200 hours of unpaid community work on the charges and the other conditions that I have outlined. On the charges of possession and drug of dependence, Charges 2 and 3, you are convicted and sentences to two months on each imprisonment, concurrent of Charge 1 and on each other.
52On the summary offences - actually I think that that is two months aggregate. On the summary offence of dealing with property suspected of being proceeds of crime you are convicted and sentenced to eight months' imprisonment concurrent with Charge 1 on the indictment. On possession of a controlled weapon you are convicted and sentenced to five months' imprisonment concurrent with Charge 1 on the indictment. On the charge of storing unauthorised fireworks, you are fined $200.
53But for your plea of guilty, I would have sentenced you to three and a half years' imprisonment with a non-parole period of two years. I have signed forfeiture and disposal orders.
54Mr O'Toole, there are no other ancillary orders, are there? I hope my sentence is clear.
55MR O'TOOLE: No.
56HIS HONOUR: I hope my sentence is clear. Mr Osman, you are going to be asked to sign some documentation. If you would just come out of the dock and sit behind Mr Gumbleton you will be asked to sign some documents. I want you to read those documents carefully. You will get a copy. I want you to understand very clearly that what happened today is due to the work that you have put in over the last three years. I think that you can go on in this way practically for as long as you want.
57Your alternative is to blow all of this right now or in the near future and go back to a life of drugs and going back to gaol and if that is what you prefer, that's a matter for you but I think that you have a lot of positives going for you right now. It would be a great pity if you were to turn back right now.
58OFFENDER: Thank you, Your Honour.
59HIS HONOUR: I expect that you're going to be able to stay the course but you need to make a commitment today that that's what's going to happen. I have a trial that's continuing at 10.30 so I will just stand down.
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