Director of Public Prosecutions v Rizki

[2021] VCC 999

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00384

DIRECTOR OF PUBLIC PROSECUTIONS

v

RACHID RIZKI

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2021
DATE OF SENTENCE:	15 July 2021
CASE MAY BE CITED AS:	DPP v Rizki
MEDIUM NEUTRAL CITATION:	[2021] VCC 999

REASONS FOR SENTENCE

‑‑‑

Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Trafficking in drugs of dependence – Possession of drugs of dependence – Relatively serious example of trafficking simpliciter – Offender operated drug trafficking business – Insight and remorse – Exceptional family hardship not established – Prospects of rehabilitation assessed positively – COVID-19 pandemic.

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981 ss 71AC(1), 73; Crimes Act 1958 s 195; Sentencing Act 1991 ss 6AAA, 18, 44.

Cases Cited:Markovic v The Queen 30 VR 589; R vEsposito [2009] VSCA 277.

Sentence:                  Imprisonment for a period of 18 months together with a Community Correction Order with conditions for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Pickering	Office of Public Prosecutions
For the Accused	Mr S Tovey	Markotich Lawyers

Introduction

HIS HONOUR: 

1Rachid Rizki, you have pleaded guilty to six charges of trafficking in a drug of dependence, namely methylamphetamine, diacetylmorphine, MDA, cocaine, ketamine and cannabis L., contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 15 years imprisonment on each charge (Charges 1 to 6) and two charges of possession of a drug of dependence, namely MDMA and amphetamine, contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty on each charge of one year imprisonment and/or 30 penalty units, where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking, or five years imprisonment and/or 400 penalty units in any other case (Charges 7 and 8).

2You have also pleaded guilty to the related summary charge of dealing with property suspected of being the proceeds of crime, contrary to s 195 of the Crimes Act 1958, which carries a maximum penalty of two years imprisonment (Summary Charge 13).

3You have admitted your prior Criminal Record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5You are 50 years of age, and at the time of offending, you were unemployed and residing at 18 Mayne Street, Cheltenham.

6On 11 August 2020, police executed drug search warrants at your home.  Your friend Damien Taylor was also present in the house but did not live there.

7Police found you sitting at a table in the rear bungalow with a zip lock bag of white powder, which you immediately dropped to the floor when challenged by police.

8During the course of the police search, police located large numbers of containers and zip lock bags containing drugs of dependence in powder and crystal form, together with cannabis in vacuum and garbage bags.

9A total of 44 items were seized by police for analysis.  The various drugs were analysed as to their quantity and purity as follows:

·      Methylamphetamine – 240.7 grams mixed, and 73 grams pure (Charge 1);

·      Diacetylmorphine – 127.3 grams mixed, and 61 grams pure (Charge 2);

·      MDA – 48.9 grams (Charge 3);

·      Cocaine – 48.2 grams (Charge 4);

·      Ketamine – 16.4 grams (Charge 5);

·      MDMA – 64.7 grams; however, only items 29, 30 and 40 are to be counted, totalling 11.4 grams, which is Charge 7; and

·      Amphetamine – 0.2 grams (Charge 8).

10The traffickable quantity for the above drugs is 3 grams.  The commercial quantity for methylamphetamine and diacetylmorphine is 250 grams for mixed substances or 50 grams pure.

11The Cannabis L. was separately analysed and consisted of seven items, with a combined weight of 778.6 grams in total.

12The traffickable quantity for Cannabis L. is 250 grams.  It is these facts that relate to Charge 6, trafficking in a drug of dependence.

13Police also seized a Samsung mobile phone and $100, believed to be the proceeds of crime.  It is the $100 cash that relates to Summary Charge 13, deal with property suspected of being the proceeds of crime.  The seized items were photographed by police.

14You were taken to St Kilda Police Station and participated in an audio-visual record of interview, during which you admitted a history of drug use and possession for personal use but denied any trafficking of drugs of dependence.

15Police conducted an analysis of your mobile phone and located numerous references you made to trafficking.

16You used the drug code words 'axe', 'chicken', 'pure', 'hot', 'special K' and 'cold', with discussions and negotiations of delivery costs and pricing of various drugs.  The transactions took place through an encrypted application 'Signal'.

17Police also obtained copies of your bank account statements, which showed direct transfers by associates to you for drugs of dependence, which corresponded with transactions shown on your mobile phone. You were remanded and have been in custody ever since.

Nature and gravity of the offending

18Trafficking in drugs of dependence is, by its nature, a serious offence, recognised by Parliament in the maximum penalty of 15 years imprisonment.

19In your case, the evidence clearly demonstrates that you were operating a drug trafficking business.  You were found in possession of a number of different drugs in powder and crystal form, together with zip lock bags and containers.  The evidence extracted from your mobile phone and the associated bank accounts also support that you were operating an organised business.

20In relation to Charge 1, the total amount of methamphetamine is 240.7 grams mixed, or 74 grams pure.  In relation to Charge 2, the total amount of diacetylmorphine is 127.3 grams mixed, or 61 grams pure.  In each case, the commercial quantity is 250 grams mixed, or 50 grams pure.  Thus, in terms of the pure amount of what you had in your possession in relation to Charges 1 and 2, these amounts exceed the commercial quantity in each case, which is 50 grams.  While you are not charged with trafficking in a commercial quantity, the amount of methamphetamine and diacetylmorphine represented by Charges 1 and 2, respectively, clearly elevates those charges to more serious examples of trafficking simpliciter.

21As to the possession charges, Charges 7 and 8, in all the circumstances, I find on the balance of probabilities, that those drugs were in your possession for the purpose of trafficking, and thus the higher penalty applies.

22Mr Tovey, who appeared on your behalf, submitted that the evidence suggests that you were operating at a 'street level'.  He relies on the fact that some of the drugs found vary vastly in purity.  For example, the methamphetamine was located in 12 separate amounts, ranging from 70 per cent to 9 per cent purity; the heroin in similar ranges of purity, in six different amounts, suggesting that the various substances were accumulated over time.  Further, that there is no evidence of a lavish lifestyle and that you yourself were a heavy drug user at the time.

23While I accept that you have had a long term battle with drug addiction, and to some extent you were involved in trafficking drugs in order to satisfy your habit, nonetheless, you were running a business from your home, trafficking multiple types of drugs with an organised system.  In my view, this is a relatively serious example of trafficking simpliciter.

Personal circumstances

24You were born in Meknes, in Morocco.  Your childhood was marked by poverty and trauma.  You lived in a small apartment with your parents, nine brothers and one sister.  One of your brothers was murdered in 1997.  You were the victim of sexual abuse as a child, and you were also physically abused at school.  You have no vision in your right eye, as a result of an incident when you were struck in the eye with a rock.  You did not flourish academically, leaving school in your early teens. You were raised speaking French and Arabic, but English is now your primary language.

25In 1989 you moved to the United Kingdom on a Study visa, and a year later you moved to Australia, and have since been granted Australian citizenship.  In 1995, around the time of your brother's death, you commenced using drugs heavily and started hearing voices.  You have become dependent on a number of drugs, and it is clear that your drug addiction is intimately connected with your criminal history.

26You had one child to a previous partner, and seven children with your current, wife, Karimah Sikberg.  You also have two grandchildren.  Your parents died in 2007, and some of your siblings now live in Australia.

27Your daughter Ruqayah, who is 13 years of age, has had a long history of medical conditions, predominantly with the functioning of her kidneys.  Further, a report from psychologist Ece Hazel Kiratli was tendered on the plea, stating that Ruqayah has been diagnosed with attention deficit hyperactivity disorder (ADHD), post-traumatic stress disorder, and mild intellectual disability.  She requires various interventions and supports from a variety of practitioners.

28Your eldest son also has a diagnosis of ADHD and has been expelled from school, and three of your other children also suffer from various mental health conditions.

29You wife suffers mental health concerns due to historical sexual abuse and has been under the care of mental health practitioners.  Your incarceration has understandably added further stress while she manages the difficulties associated with not only managing a large family, but with the added burden of a number of your children suffering from mental or physical health conditions.

30As to your employment history, after leaving school you worked selling fruit and vegetables at a local market.  You have also danced professionally and worked as a kitchenhand in the past but have not worked for many years.  You have been in receipt of the Disability Support Pension.  Prior to being remanded you were living in a rental property with your family in Cheltenham.  Shortly before the offending, you and your wife had to remove your eldest son from the family home as a result of his behaviour, including using drugs in the home.

31Your family remains supportive of you. Letters from your daughter and wife were tendered on the plea.  They write of your struggles with mental health and drug use in the lead up to the offending, and how the whole family has suffered as a result of you being remanded.

32Letters from a number of family friends were also tendered. They all speak highly of your selfless nature, care for vulnerable members of the community, and commitment to your family.  You wife writes that your time on remand has been a wake-up call for you, as it is the longest time that you have been drug-free, and you have expressed shame and remorse.  Your wife gave evidence on the plea confirming the contents of the letter and outlining further the impact your offending and remand has had on the family.

33Whilst being in custody, you have worked in the laundry, exercised, and engaged in rehabilitative courses.  Certificates of completion were tendered on the plea, as well as a number of clean urine screens from this year, confirming that you are now drug-free.  You are also in the process of obtaining a White Card.

34You have had video calls with your family and have had some contact visits from your wife and some of your children.  However, these were suspended as a result of an incident where buprenorphine was found in your cell.

35A report was prepared by Dr Danny Sullivan, consultant forensic psychiatrist, and tendered on the plea. Dr Sullivan conducted a mental state examination of you and provided his clinical opinions. Dr Sullivan also had the benefit of some historical psychiatric and psychological reports. In short, Dr Sullivan states that you have an established diagnosis of polysubstance abuse, involving a number of drugs, described as 'multiple specified psychoactive substances dependence'.  Dr Sullivan also provides an opinion as to a long history of auditory hallucinations.  He is of the view that these experiences are consistent with a drug-induced psychotic disorder, especially described as 'cannabis and stimulant-induced psychotic disorder with hallucinations'.  Your anxiety and rumination as a result of past childhood sexual abuse is described by Dr Sullivan as meeting the diagnosis of post-traumatic stress disorder and may be a significant factor underlying your longstanding polysubstance dependence.

Sentencing considerations

36Mr Tovey outlined a number of factors in mitigation.  Firstly, your matter resolved to a plea of guilty before a committal hearing.  An application for summary jurisdiction made on your behalf was ultimately refused in the Magistrates’ Court, and the matter was committed to this court for a plea.  As such, your plea was at the earliest reasonable opportunity.

37Your pleas of guilty have utilitarian value, sparing the cost and time of a jury trial.  I take your willingness to facilitate the course of justice as a matter in your favour.  This is particularly significant in the circumstances of the COVID-19 pandemic, where the courts are now burdened with substantial delays.  As such, your plea of guilty in the current circumstances carries significant weight.

38Mr Tovey submitted that there is evidence, over and above the plea of guilty, that demonstrates insight and remorse.  Dr Sullivan notes that you acknowledge significant problems with substance abuse and the deleterious effects of your drug use on your mental health.  I accept that you appreciate the effects of your drug use on your mental health and the impact it has on your family.  As such, I also accept that you appreciate that your drug trafficking necessarily affects others in the community in a similar manner.

39Mr Tovey submitted that having regard to various family difficulties, as outlined above and referred to in greater detail in written submissions, exceptional hardship is able to be established in the manner described in Markovic v The Queen[1].  Mr Tovey submits that while the individual matters may not be exceptional in themselves, in combination, the threshold is reached.  The settled authority on this point is that the evidence must establish that the offender's imprisonment would expose the family member to exceptional hardship.  That hardship must be considerably more severe than normal for a family where the father is imprisoned.[2]  The evidence from your wife was that your children rely heavily on you for emotional support, and further, that you do play a role in the day-to-day care of the children.  That said, it is clear from your own admissions that your drug use must have had an impact on your capacity to engage with the family in the period before arrest.  When assessed by Forensicare and Corrections Victoria for the purposes of this hearing, you frankly stated to both report writers that prior to your arrest, you were using multiple substances daily, including heroin, methamphetamines, cocaine, and cannabis.  You were also trafficking drugs throughout that period.

[1] (2010) 30 VR 589.

[2] R vEsposito [2009] VSCA 277 at [14].

40In the circumstances, while I accept that the combination of matters relied on do establish hardship perhaps above that normally experienced, I am not satisfied that the high hurdle of exceptional hardship has been established in this instance.  Nonetheless, the identified hardship is a matter I take into account.

41You are fortunate to have the ongoing love and support of your wife, family and long term friends who, through their letters to the court, have expressed that they will support you in whatever way they can upon your release.  While your battle with addiction will be met with difficulties along the way, in my view, given the supports in the community, your prospects of rehabilitation can be assessed positively.  However, as is also noted by Dr Sullivan, you will require stringent monitoring and ongoing drug treatment.

42Mr Pickering, who appeared on behalf of the Director of Public Prosecutions, submitted that general deterrence, specific deterrence and denunciation of your conduct are paramount sentencing considerations in this instance, which is undoubtedly correct.  While your drug addiction may have been a driving force behind your criminal behaviour, others must be aware that trafficking is not able to be excused even in such circumstances. Trafficking contributes to the addiction of others and perpetuates the scourge of drugs in our community.  As to specific deterrence, you have a number of prior convictions for possession of drugs, however only one prior matter for trafficking, in 1997.  Further, while it is clear that your battle with drugs has been linked to your criminal history from early on, specific deterrence must play a part in the sentencing discretion in order to deter you from using and resorting to trafficking to fuel your habit.

43Finally, I take into account the impact of the COVID-19 pandemic.  You have been on remand through the term of the pandemic, which has caused restrictions within the prison system, including limiting face to face visits and reduced access to rehabilitation programs.

44Mr Tovey submitted that in all the circumstances, a combination sentence, pursuant to s 44 of the Sentencing Act 1991, is a disposition that is able to meet the relevant sentencing considerations.  I had you assessed for such and order and you have been found suitable.  In my view both you and the community would benefit from you having a period of supervision in the community, together with therapeutic intervention, to assist you in remaining drug free. As such, in my view, a combination sentence can achieve that purpose while still recognising the important principles of deterrence and just punishment.

Sentence

45Mr Rizki, please stand.

46Rachid Rizki, on Charges 1 and 2, trafficking in a drug of dependence, you are convicted and sentenced to 18 months imprisonment on each charge. In relation to Charges 3, 4, 5 and 6, trafficking in a drug of dependence, you are convicted and sentenced to 12 months imprisonment on each charge. On Charges 7 and 8, possession of a drug of dependence, you are convicted and sentenced to 2 months imprisonment on each charge. Each of those sentences are concurrent, and thus, the total term of imprisonment is 18 months as the prison component of the combination sentence, pursuant to s 44 of the Sentencing Act 1991.

47In addition to the prison component of the sentence, upon your release you will be placed on a community correction order, with conviction, for a period of 2 years.  While all community correction orders are punitive, the focus of the order will be therapeutic.  You will be required to complete programs to further address your drug use, your mental health, and programs to reduce reoffending.  You will also be subject to supervision.

48On Summary Charge 13, dealing with property suspected of being the proceeds of crime, you will be convicted and fined $200.

49Pursuant to s 18 of the Sentencing Act1991, I declare that 337 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today. Therefore, after the s 18 declaration, the result is a term of imprisonment, after the deduction of the presentence detention, of less than one year, which complies with s 44.

50Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 3 years imprisonment with a non-parole period of 2 years.

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