Director of Public Prosecutions v Razzak

[2015] VCC 637

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00316

DIRECTOR OF PUBLIC PROSECUTIONS

v

AHMAD RAZZAK

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 May 2015
CASE MAY BE CITED AS:	DPP v Razzak
MEDIUM NEUTRAL CITATION:	[2015] VCC 637

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 F. Holmes
For the Accused (Plea)	Ms D. Mitchell
For the Accused (Appeal)	Mr D. Cronin

HER HONOUR:

1Ahmad Razzak, you have pleaded guilty to five charges of possession of a drug of dependence and have agreed to have related summary offences determined by me. In addition, you appeal the sentence imposed on you at Dandenong Magistrates' Court on 5 February 2015. This sentence was activated pursuant to s.18ZN(b)(i) of the Sentencing Act. The treatment and supervision part of the DTO was cancelled and you were required to serve the custodial portion (or part of it).  That is, you were required to serve nine months' imprisonment.  That sentence is the subject of appeal. 

The circumstances of the plea matter. 

2At approximately 2.40 am on Tuesday, 15 July 2014, you were observed by police sitting in a car parked in Noble Park North and you were intercepted for the purpose of a routine check.  The car was searched by police, both at the time and later when the car had been towed away and the following items were found:

(i) In the footwell of the front passenger seat was a blue backpack which contained: (1) one plastic Ziplock bag containing approximately 3 grams of cocaine (Charge 2); (2) three knives (Summary Charge 9); (3) two vials containing approximately 20 millilitres in total of clear liquids, one had

7.4 grams of 1,4-butanediol, (Charge 5), and the other 11.3 grams of gamma-butyrolactone, (Charge 3); another vial containing 8.4 grams of boldenone in liquid form, (Charge 4). 

(ii) In the glove box was one TomTom branded GPS (part of Summary Charge 8). 

(iii) On the backseat or in the back of the car there was: (1) three 30.30 calibre bullets in a small bag (Summary Charge 15), (2) one Apple iPad Air tablet (part of Summary Charge 8), (3) one TomTom branded GPS (part of Summary Charge 8), (4) various NAB documents in the name of Madeline Goldsmith (part of Summary Charge 8). 

(iv) In the boot of the car to which you had the keys there was: (1) one black Nike branded backpack containing documents in the name of Sheng Zhi Zheng (part of Summary Charge 8); (2) one brown coloured purse (part of Summary Charge 8).  (3) Inside the backpack were two safes. In one of them police located seven plastic Ziplock bags containing a total of 7.42 grams of methylamphetamine in mixtures of various purity, 0.5 gram purity of methylamphetamine (Charge 1). (4) Also inside the backpack was one glove containing numerous cards in the names of different identities.

3You were arrested and conveyed to Dandenong police station for questioning regarding your possession of these items.  You denied knowledge of many of the items and stated that you were the only person who drove the car.  You stated you believed the items located in the car were left by friends who had been passengers.  You gave an inconsistent account regarding your purchase of the iPad.  You denied any knowledge of the drugs located inside the car.  Police spoke to the registered owner of the car who informed them at that you had borrowed the car for the last few months and that no one else had driven it since you had begun using it. 

4As to the matters the subject of the indictment and the related summary matters, the maximum penalties for these offences are as follows: possession of a drug of dependence, one year imprisonment and/or 30 penalty units; dealing with property suspected of being proceeds of crime, two years' imprisonment; possessing a controlled weapon without excuse, one year imprisonment or 120 penalty units; possessing a cartridge or ammunition without a licence, 40 penalty units. 

5In determining both the appeal and the plea, it is necessary to consider the history of these proceedings.  On 8 May 2014 you were before the Magistrates' Court for the following matters, that is, the appeal matters: Charge 3, drive whilst disqualified, offence date 15 January 2013; Charge 5, theft of motor vehicle; Charges 8 and 14, prohibited person being in possession of a firearm; Charge 13, dealing with property suspected of being proceeds of crime.  In respect of those offences you were sentenced to a drug treatment order (‘DTO’) for a period of 18 months.  There were a number of other offences including drug offences of which you were convicted and discharged.  All of these offences occurred on 15 February 2013 except Charge 3. 

6You were placed on a DTO for a period of 18 months which included treatment and supervision conditions.  I was informed today that you had spent a period of time in custody prior to this being imposed, some referrable to parole which had been breached, but also 207 days once that period owed to parole had been completed. 

7

On 15 July 2014 you were charged with various serious drug matters and offences involving weapons, that is, these plea matters.  At the time it was alleged by the prosecution that you had 94 grams of methylamphetamine in your possession.  You were arrested and placed in custody.  On 17 July 2014 bail was refused.  On 23 September 2014 summary jurisdiction was refused.  On 16 October 2014 bail was refused in the Magistrates' Court.  On

28 November 2014 bail was refused in the Supreme Court.  On 11 December 2014 an application to activate the DTO was adjourned.  On 5 February 2015 there was an adjournment application re the DTO on the basis that analysis of the amount of methylamphetamine involved in the plea matter was not available. This was refused and the application to activate the DTO was allowed, and you were sentenced to a period of nine months' custody.

8On 26 February 2015 there was a contested committal in respect of the plea matters at the Magistrates' Court.  Evidence was given from the informant that the amount of methylamphetamine, the subject of Charge 1, was 7 grams mixed or 0.5 grams pure.  That is as opposed to the initial indication that it was 94 grams.  It was not until seven months after your arrest on the plea matters that this information became available.  It would appear that many of the court appearances prior to this date proceeded on the basis that the plea matters involved significantly more methylamphetamine than was ultimately alleged.

9On 4 March 2015, the notice of appeal re activation of the DTO for appeal matters was lodged.  On 23 April 2015 the appeal matters were listed for hearing and they were adjourned to be heard with the plea on 14 May 2015.  There was also a bail application in the County Court which was refused.  It is noted that the prosecution informed Judge McInerney on the bail application that the amount of drugs alleged in the plea matter was 7 grams mixed and that the Crown did not concede that the possession of drugs (methylamphetamine) was not for a trafficking purpose. 

10On 14 May 2015 the hearing of the appeal and plea matters came on before me. The matter was adjourned for the purpose of a CCO assessment and for provision of material from the Drug Court regarding your compliance or otherwise on the DTO between 14 May and 18 July last year.  It was evident that you did not comply with the DTO or take the opportunities that were presented to you then.  As indicated in the report dated 18 July 2014:

"He has been chaotic in addressing his drug use and other problem areas and as a result has not fully complied with the treatment plans in place.  Mr Razzak's overall compliance has been sporadic in attending his treatment appointments.  Therefore it appears that he disregards the seriousness of the order condition.  In summary, Mr Razzak has recorded 13 absences, with and without medical certificates, from testing.  He has two non admits to drug use and a failure to provide urine sample.  On the occasions when he tested, results reflected ongoing regular use of methylamphetamines, amphetamines.  However to Mr Razzak's credit there were a few occasions that he did produce clear results.  He presented with a lack of commitment to change and this is reflected in his inability to fully comply with the supervision and treatment plans."

11I also note during the course of the DTO you continued to associate with negative peers and you did not remain living at Ms Richardson's house. 

12You are currently aged 33 years and have the support of a foster mother, Ineke Richardson, who is prepared to have you living at her home in Endeavour Hills again.  You were born in Lebanon in 1981 and served in the military as part of national service there.  You witnessed various war atrocities at that time.  You met your wife in Lebanon and you moved to Australia together, leaving behind your parents and seven siblings.  You have two daughters. 

13Your relationship with your wife deteriorated and you separated in 2008.  It was around this time that you started using drugs and became involved in the criminal law.  Your drug use escalated and the seriousness of the matters before the court also increased.  You have had issues with depression, though have not always been compliant with medication. 

14You have an extensive criminal history, with seven previous court appearances dating back to 24 August 2006.  Many of these offences are of a similar nature to the ones before me relating to both possession and trafficking of drugs, driving and theft of motor car offences and possession of weapons.  You have previously been sentenced to terms of imprisonment, most notably in 2012, and as previously indicated, further offending breached your parole and you were required to serve the whole of that term.  This was for trafficking and other drug related offences.  You were placed on a drug treatment order for offences of a very similar nature to those on the indictment and the commission of these offences breached that order.

15It is concerning in terms of your prospects for rehabilitation that you have committed the plea offences only two months after being placed on the DTO and that the DTO was imposed after you had spent more than one year in custody.  I suspect the magistrate who imposed the DTO was met with similar submissions on your behalf as me, that you are now prepared to address your drug issues, keep away from negative influences and take full advantage of the support that Ms Richardson is willing to offer you.  Additionally, you have offers for employment.

16Principles of general and specific deterrence are important sentencing considerations in determining the appropriate disposition.  I also take into account your plea of guilty and most particularly the time you have spent in custody, arguably attributable to some extent by the failure of the prosecution to provide a full analysis of the methylamphetamine content until seven months after you were charged for the plea matter.  Even acknowledging that situation, I am minded to have you released into the community with supervision, recognising all relevant sentencing considerations. 

17I have received a report regarding your suitability for a community correction order.  Given your history, this was unfavourable.  However, taking into account the rather unusual history of the plea proceedings and the amount of time that you have already served in custody referrable to the plea matter and the custodial proportion of the DTO, I am prepared to give you a further opportunity to address your drug issues in the community.  I will include a condition of judicial monitoring which means that you will come back before me in two months and I will receive information as to how you are going.  In addition, I will include conditions requiring you to do work in the community and also for drug treatment with urine testing. 

18I make the forfeiture and disposal orders.  I think I made them the other day.  Is that right, Ms Holmes?

19MS HOLMES:  Yes, Your Honour. 

20HER HONOUR:  I also make a s.464ZF order.  That is the one with only one - no, with two paragraphs, is it not?

21MS HOLMES:  Yes, Your Honour.

22HER HONOUR:  And I do that as that order is by consent. 

23MS HOLMES:  If Your Honour pleases.

24HER HONOUR:  Now, in respect of the appeal then, the order of the magistrate, made on - is it 5 February?

25MS MITCHELL:  Yes, Your Honour.

26

HER HONOUR:  5 February 2015 is set aside and in its place I place

Mr Razzak on a community correction order for a period of 12 months.  I cannot do that?

27MS MITCHELL:  I don't think you can do that, Your Honour, no.

28HER HONOUR:  All right.  Defence indicated that I could.  So can someone tell me whether I can or not?

29MS MITCHELL:  My understanding is you only have - it's a sentence but it doesn't reopen the sentencing options.  Is that - is that correct?  I'll just check with my instructor as well.  I think it was only in relation to the period of imprisonment that's available.

30HER HONOUR:  All right.  So I can reduce the period of imprisonment to the period of time referrable to the DTO which is how long?

31MS MITCHELL:  The original DTO was nine months ‑ ‑ ‑

32HER HONOUR:  Yes.

33MS MITCHELL:  ‑ ‑ ‑ and there's actually been ten months, five days' time served.

34HER HONOUR:  No, no, no.  But only some of that is referrable to the DTO because the DTO was imposed later.  So what is that?

35MS MITCHELL:  The 102 days.

36HER HONOUR:  Yes, all right.  In respect of the order made on 5 February 2015, the magistrate's order is set aside and I impose a period of imprisonment for a hundred and ‑ ‑ ‑

37MS MITCHELL:  That's what - he's done 102 days since 5 February to today.

38HER HONOUR:  Yes. 

39MS MITCHELL:  But there's also ‑ ‑ ‑

40HER HONOUR:  For 102 days.

41MS MITCHELL:  ‑ ‑ ‑ the 207 days ‑ ‑ ‑

42HER HONOUR:  Yes, no, I am not worried about that because I am giving a community correction order in respect of the plea and the two hundred and whatever days is referrable to the plea.  Is that correct?

43MS MITCHELL:  No, Your Honour.  The 207 days is referrable to the appeal and there's also 205 days referrable to the plea. 

44HER HONOUR:  All right. 

45MS MITCHELL:  So sorry, in total ‑ ‑ ‑

46HER HONOUR:  All right.  All right.

47MS MITCHELL:  ‑ ‑ ‑ 309 in total.

48HER HONOUR:  All right.  What I will do is sentence in respect of the appeal matter to six months' ‑ ‑ ‑

49MS HOLMES:  No, well he's got ten up his sleeve so ‑ ‑ ‑

50HER HONOUR:  It does not matter.  I will just ‑ ‑ ‑

51MS HOLMES:  Yes.

52HER HONOUR:  ‑ ‑ ‑ sentence him to six months and declare however much PSD which is what?

53MS MITCHELL:  309 days.

54

HER HONOUR:  309 days pre-sentence detention which has the effect that he will be released immediately and in respect of the plea matter, I place him on a CCO for a period of 12 months with a condition of 125 hours community work, a drug - an assessment condition, judicial monitoring in two months' time which will be on 20 July, supervision under the Dandenong Community Corrections and is that all, Jade, is that all I said?  There is an order that has been prepared that you will have to sign, Mr Razzak.  Do you understand,

Mr Razzak, that this is giving you another chance?

55OFFENDER:  Yes, Your Honour.

56HER HONOUR:  I am pretty sure that what happened last time when you were at the Magistrates' Court was that your counsel stood up and said you had been in gaol for 200 days and you were all ready to go and ready to make amends.  It sounds very similar to what I have been told today and let us hope this time that that is what happens because if it does not, you will come back before me and you will be required - I will have to resentence you in respect of the plea matters.

57OFFENDER:  Yes, Your Honour.

58HER HONOUR:  All right.  Ms Holmes, do I have to change the date on that 464 because I have dated 14 May?  Does it matter?

59MS HOLMES:  Yes.  Probably, Your Honour, make it today's date just because ‑ ‑ ‑

60HER HONOUR:  All right.

61MS HOLMES:  ‑ ‑ ‑ today's the date of sentence.

62HER HONOUR:  And what is the date?

63MS HOLMES:  Eighteenth, Your Honour.

64HER HONOUR:  Thank you.  Yes.  All right, there is the 464 and the order.  Just stand down, Tony.  Thank you.

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