Director of Public Prosecutions v Samson

[2019] VCC 927

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01859

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMMANUEL SAMSON

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 June 2019
CASE MAY BE CITED AS:	DPP v Samson
MEDIUM NEUTRAL CITATION:	[2019] VCC 927

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Holmes
For the Accused	Mr R. Melasecca

HER HONOUR: 

1Emmanuel Samson, you have pleaded guilty before me to three charges of trafficking in a drug of dependence, two charges of possession of a drug of dependence and one charge of disobeying an order to require assistance.  You also pleaded guilty to a summary charge which was uplifted pursuant to the Criminal Procedure Act, a charge of possessing cartridge ammunition.

2The facts underlying your offending are as follows.  The offending resulted from a search of your home conducted by the Echo Taskforce.  That warrant was executed at about 6am on 21 July 2016 at your home in Derby Street, Pascoe Vale.  Police located you in bed with your then girlfriend and during a search of the premises seized two plastic snap-lock bags containing about 30 bullets of various calibres, which were located in the roof cavity.  Your possession of that ammunition underlies the summary charge.

3They also located numerous snap-lock bags containing crystal substances, white powder and tablets, a small amount of green vegetable matter believed to be cannabis, two sets of scales, further ammunition rounds of various calibres and six mobile telephones. You refused to provide pin codes and passwords to enable police to access data on the telephones when requested at the scene. This was after the requirements of a s.465AA order and the consequences of failing in providing that information to police were explained to you. Your refusal underlies Charge 6 of the indictment – disobeying an order requiring assistance.

4Police located a safe in your bedroom.  Again you refused to provide the location of the key to this safe or the access code to it, however police later found the key, unlocked the safe and found more snap-lock bags containing white powder and tablets.  The two of you were arrested and taken to the Fawkner police station where you were remanded in custody.

5Spot testing was conducted on the substances seized.  They were found to be methylamphetamine, cocaine and MDMA or ecstasy.  A statement of full analysis was obtained on 28 November 2016 indicating firstly that the total quantity of methylamphetamine or ice in the samples was approximately 137 grams.  Your possession of that amount of that drug underlies Charge 1 on the indictment.

6The total quantity of the other substances including cocaine was about 151.5 grams, which underlies Charge 2 on the indictment.  The total quantity of the substances containing MDMA was 96.6 grams, which underlies Charge 3 on the indictment.  The total quantity of substances including 3,4‑methylenedioxymethamphetamine, MDMA, was 0.7 grams.  This underlies Charge 5 on the indictment. 

7The total quantity of substances including Methorphan was approximately 1.9 grams, Count 5.  All those substances except in relation to Count 5 were of a trafficable quantity.  You made a no comment response in a record of interview and again refused to provide passwords and pass codes for the telephones seized. 

8The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment. The maximum penalty for possession of cannabis, which underlies Charge 4 on the indictment, is five penalty units, it being a small quantity. The maximum penalty for possession of MDMA and Methorphan is 12 months' imprisonment or 30 penalty units. The maximum penalty for failing to provide information to access data under a warrant pursuant to s.465AA of the Crimes Act is five years' imprisonment.  The maximum penalty for possessing cartridge ammunition without a licence is 40 penalty units.  You pleaded guilty at a committal mention on 24 October, which is conceded as being an early plea.  I now turn to your personal circumstances.

9You are 26 years of age.  You were born in Sydney.  You have two sisters and your family is otherwise law-abiding and no one bar yourself has ever been in trouble with the law.  You yourself have no prior convictions in Victoria.

10Essentially your family arrived in Australia from Assyria, which is now part of Iran, as refugees.  You grew up in Fairfield in Sydney which was described as a suburb riddled with problems and with a high crime-rate area.  Your father worked as a security guard.  He was described by your counsel as an insignificant and inconsistent provider to the family, which mainly relied on your mother's business as a cleaner, in which your sisters also occasionally helped. 

11From an early age you would argue with your father about his failure to support the family and you were treated violently as a result.  Your father was also violent in that he would often in a fit of temper break items in the home, which continued even up to the years when you were in high school.  You started, as I have said, to confront your father and by the age of 18 you and he were engaged in physical fighting.

12You attended Fairfield West Primary School where you were a good soccer player, and attended Fairfield High School, entering but not completing Year 10.  You continued to be a talented soccer player and you were good at athletics.

13The home environment was an unpleasant one.  Your counsel told me you would wake every morning to arguments, you would wake up angry and you began to avoid being at home, hanging around in shopping centres.  Eventually at an internet café which you attended in Fairfield, you were introduced to drug taking which began with smoking cannabis.  This remained a problem for you for many years and you were also introduced to alcohol.  Eventually cannabis would occupy your entire waking days and effectively contributed to you leaving school at an early age.

14When you were 17 you were involved in a serious bike accident when you were riding a motorcycle and a car failed to give way.  You suffered fractured discs to your back, damaged nerves and a fractured right knee and ultimately received $400,000 in compensation.  Of this, $50,000 went to paying off a debt of your mother's.  You gave her another $50,000 and you paid your lawyers about $75,000 and purchased a car for your sister.

15By the age of 18 you were going out on weekends, attending clubs and there you were introduced to cocaine.  This was a drug regularly used amongst the people you mixed with.  Your counsel told me it made you feel invincible.  You began to buy and sell cars and use the rest of the moneys that you had received by way of compensation on cocaine.  You spent so freely on cocaine that within a year of receiving the settlement you had spent all the moneys that you had received.  You also gained the friendship of dealers by purchasing large quantities. 

16Your friends started trafficking in order to use the drugs.  You were on the periphery of this and then you decided to come to Melbourne in order to make a fresh start.  Your mother supported this decision.  You came to Melbourne and at that time met your girlfriend Claudia with whom you are still in a relationship.  She has been described as a good influence upon you.  She is not a drug user.  She comes from the same Assyrian background as yourself.

17You obtained a job loading and unloading with TNT trucks.  You did well for about a year, from January 2014 to April 2015, but suffered withdrawals from cocaine and became aggressive.  Your withdrawal from drugs also made you irritable.  This ultimately this impacted your relationship with Claudia and she left you.  At that point you reverted to drug use, this was in about April 2015, and immediately regressed back to the levels of drug use that you had undertaken in New South Wales.

18Those people that you met when you resumed drug use were heavily entrenched in the drug culture and your house became what your counsel described as a convenient place for people to come and use drugs and those that were engaged in trafficking saw it as a convenient place to store their wares.  The raid on your premises did not have you in its sights but to look for other people that lived there.  Many people lived in the house, but you ultimately took responsibility for all the drugs. 

19Once you were taken into custody you remained there for a month, beginning at the Broadmeadows police station.  You were then sent to the Melbourne Assessment Prison and then Port Phillip.  Ultimately you were bailed and released into the custody of Amanda Brown from Lamberti Associates drug and alcohol rehabilitation program, an experienced treater of drug addictions.  Your mother travelled from Sydney to live with you, adversely affecting her business in the meantime. 

20Claudia had reappeared in your life about two months before your arrest after seeing you at some functions.  She was not completely aware of the level of your drug use and was not living with you at the time that you were offending.  She was, according to your counsel, horrified at your arrest but saw this as an opportunity for you to change your life and decided to stand by you.

21You were released on strict bail conditions, including a curfew.  You had a difficult time in custody.  You were assaulted in gaol and your jaw was broken.

22You first appeared before this court on 13 June 2017 on a plea hearing and the course of legal proceedings has since been long and protracted.  On that date it was my view that you had not undertaken sufficient rehabilitation for me to accede to your counsel's submission that I should deal with you by way of a non-custodial disposition and I deferred your sentencing for a year, that is to 13 June 2018.

23Bail was revoked on 18 December 2017 when you were arrested in relation to a number of charges, you having been identified as being in a car which had cocaine scattered around the carpet and which bore all the hallmarks of a vehicle being used by persons engaged in interstate trafficking.  Ultimately charges relating to your possible involvement in drug use and drug trafficking were withdrawn, but you remained in custody until 9 April 2018.  It was my view that you required more time to undertake or to continue the rehabilitation you were previously fairly successfully undertaking with Ms Brown. 

24At the point that your bail was revoked you had provided 97 urine screens, but at the time of your arrest in December 2017 you had provided two 'dirty' samples and you admitted to Ms Brown that you had relapsed into drug use on those occasions.  In any event the matter was adjourned for a further plea and sentence to 12 September 2018.  At this stage I indicated that I was still not ready to place you on a non-custodial disposition and indicated that I would consider another deferral.

25So at that point in time, although it would appear that you had made good progress since being granted bail, you had not undertaken enough rehabilitation for me to be confident that you should be placed on a Community Corrections Order and I deferred the sentence further to 12 June 2019.  There were various trips backwards and forwards to the court for bail variations allowing you to go to Sydney, where all your family live, to attend various family events.  And there were also appearances in relation to the sureties.

26Overall, however, your progress in that time continued to be steady.  Additionally you have set up a business wherein you own several trucks and have drivers both in Sydney and now one in Melbourne.  I am satisfied that you have worked hard and steadily to achieve what I am satisfied is a state of abstinence.  You have continued to provide regular urinalysis which has proved clean. 

27Most importantly I was very impressed on the last occasion that you appeared before this court by evidence that you had undertaken an extremely rigorous and difficult psychological treatment at the hands of psychologist Luke Armstrong, which involved a very difficult and gruelling exercise in terms of you truly investigating the underlying causes, emotional and psychological causes, for your cocaine use.

28Overall, Mr Samson, it has been a long road, partly as a result of your own failures along the way, but to your credit you have got back on the wagon and I am satisfied this time you have stayed there.  There has been no further reoffending.  I am satisfied you have reached the stage that I can safely deal with you by way of a combination sentence, that is a term of imprisonment which will comprise the period of time that you spent in gaol, which I will direct as already been served by way of pre-sentence detention, and your placement on a Community Corrections Order.  I note this is a disposition which is not resiled from by the prosecution.

29In the circumstances therefore I am going to deal with this, Madam Prosecutor, by way of an aggregate sentence.  It seems to me appropriate.  All the offending has resulted from the raid and the retrieval of various items, excite I think there is the - is the ammunition that I ‑ ‑ ‑

30MS HOLMES:  The ammunition's only got a penalty unit maximum.

31HER HONOUR:  Only got a penalty unit.

32MS HOLMES:  Yes.

33HER HONOUR:  All right.  I am sentencing you in the knowledge that you are truly ‑ ‑ ‑

34MS HOLMES:  Yes.

35HER HONOUR:  Pardon?

36MS HOLMES:  Sorry, Your Honour.

37MR MELASECCA:  Cannabis.

38MS HOLMES:  And the cannabis as well, Your Honour.

39MR MELASECCA:  Cannabis as well, yes.

40HER HONOUR:  And the cannabis, yes.  Thank you. 

41I sentence you taking into account your early plea of guilty and the very long and arduous road that you have undertaken.  By that I mean that you appeared in front of me more than two years ago.  The offending went back to 2016.  It is in the region of in excess of three years since your apprehension for this offending.  I am satisfied that since your release from custody after a month in 2016, apart from the hiccup along the way which saw you return to custody but which probably was not a bad thing motivationally-wise, you have continued a long and genuine exercise of rehabilitation. 

42I am satisfied you do not present a threat to the community.  I am satisfied you have genuinely reformed and I am satisfied that the delay in this matter has been usefully employed by you, first, in engaging in rehabilitation and, secondly, doing so on such an enduring basis that I can be satisfied that the disposition I have referred to is appropriate in your case.  Can you stand up, please, sir.

43On Charges 1, 2, 3, 5, 6, you are sentenced to - what is the PSD now?

44MS HOLMES:  A hundred and forty-one days, Your Honour.

45HER HONOUR:  One hundred and forty-one days' imprisonment followed by a release on a Community Corrections Order for a period of two years.  I direct that 141 days has already been served by way of pre-sentence detention.  Before I can place you on a Community Corrections Order I must explain the conditions of that order to you.  Before I do so, in relation to Charge 4 you are ordered to pay a fine of $200.  In relation to the summary charge you are ordered to pay a fine of $200, giving a total fine of $400.  I will give you four months to pay those fines.

46In relation to the Community Corrections Order, the conditions are firstly that you must report to the - sorry, I should add that you have been assessed for suitability for placement on a Community Corrections Order and you have been found suitable.  The conditions are that you must report to the Community Corrections Office, which is where?  Which is ‑ ‑ ‑

47MR MELASECCA:  Dimboola, it says.

48HER HONOUR:  At Broadmeadows?

49MR MELASECCA:  Yes.

50HER HONOUR:  Within two working days of the making of this order, that is by Tuesday of this week.  Whilst you are on the order you must not commit another offence punishable by imprisonment.  That does not mean you have to be gaoled, it means if you get charged and/or convicted of an offence for which theoretically you could be gaoled, like knocking off a box of matches from Woolworths, that will be a breach.  You will be brought back in front of me and I will re-sentence you on the original charges.

51You must report to and receive visits from the Community Corrections Office.  You must report any change of address or employment within 48 hours of the making of that change.  You may not leave Victoria without the permission of the Community Correction Office.  You must not attend upon the Community Correction Office under the influence of drugs and alcohol.  You must obey all lawful instruction of the Community Correction Office.

52I am going to order that you undertake 150 hours of unpaid community work.  You are to attend for assessment and treatment for drug use.  You are to attend for assessment and treatment for mental health difficulties.  What that will simply mean is that you will be ordered during that time to continue to attend upon Ms Brown and Mr Armstrong.  All right?

53OFFENDER:  Yes.

54HER HONOUR:  Good.

55MR MELASECCA:  Is Your Honour intending to allocate any of the hours to the community work, Your Honour?

56HER HONOUR:  You don't miss a trick, do you, Mr Melasecca?  Yes, I am prepared to say that - to order that hours of treatment can be offset against the community work hours.  I thought I had gone fairly light on those work hours actually, but, anyway, he has done a lot of work, so all right.

57There will be supervision, which means you will have to attend on the corrections office on a more regular basis, and I am going to order judicial monitoring, which means you will come back and see me, Mr Samson, just when you thought you were free of my presence in your life, at which stage I will receive a report as to your progress on the Community Corrections Order.  All right?

58OFFENDER:  Yes, Your Honour.

59HER HONOUR:  Are you prepared to enter this order?

60OFFENDER:  Yes, Your Honour.

61HER HONOUR:  Thank you.  You have a seat.  We will make the first judicial monitoring four months from now.  What I will order is that you do not have to come to the courtroom, Mr Samson, you can just attend the Broadmeadows Community Correction Office and they will beam you in, all right?

62OFFENDER:  Yes.

63HER HONOUR:  Thank you.

64ASSOCIATE:  30 October.

65HER HONOUR:  Yes, so the first judicial monitoring will be on the 30th.  Will I be away then?

66ASSOCIATE:  No, you're back.

67HER HONOUR:  I'm back?

68ASSOCIATE:  Yes.

69HER HONOUR:  The 30th.  You sure?  30 October 2019, thank you.  It's like taking a long breath.  It's taken a long time, hasn't it?

70MR MELASECCA:  It has, Your Honour.

71HER HONOUR:  I don't know that I'd have been comfortable at any stage before now of placing him on this order, I have to say, Mr Melasecca.

72MR MELASECCA:  It's been a very effective progress, Your Honour.

73HER HONOUR:  Yes.  Well, he's done well.

74MR MELASECCA:  Yes.

75HER HONOUR:  I am going to order that the police take an intimate sample from you.

76MR MELASECCA:  Is it retention or to taking?  I think it might already have been ‑ ‑ ‑

77HER HONOUR:  We've got an order for ‑ ‑ ‑

78MR MELASECCA:  Could I check if he's already done it, Your Honour?

79HER HONOUR:  Sure.

80MS HOLMES:  I don't believe it has been taken, Your Honour.  They're my instructions.

81HER HONOUR:  All right, we'll need one of the non-custody ones with the police. 

82MR MELASECCA:  No, it's not been done, Your Honour.

83HER HONOUR:  Very well.

84MR MELASECCA:  So it can be done.

85MS HOLMES:  Yes, the one just sent from last night, that should be a non-custody one.

86HER HONOUR:  It hasn't got the police stations attached to it.

87MS HOLMES:  I think my instructor completed it for you, Your Honour, and put in the Moonee Ponds police station.

88HER HONOUR:  Did they?

89MS HOLMES:  Yes.

90HER HONOUR:  Yes, I didn't read it properly.  Very efficient, thank you very much.  What I am saying is that they will take a swab from your mouth.  You would have to attend upon the Moonee Ponds police station within four weeks for them to take a swab.  I need to say that if you do not provide this intimate sample, police may use reasonable force in order to obtain it, all right?

91OFFENDER:  Yes.

92HER HONOUR:  Thank you very much. 

93MR MELASECCA:  May it please Your Honour.

94HER HONOUR:  Thank you very much.  I have signed disposal orders, forfeiture order.  There we go.  Thank you very much.  Good, I'll get you to sign that, Mr Samson.

95MS HOLMES:  6AAA, Your Honour?

96HER HONOUR:  Yes, that's right.  Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of four and a half years and order that you serve a minimum term of - it's a bit light really, isn't it?  Anyway, it doesn't - two and a half years.  Thank you. 

97MS HOLMES:  Your Honour.

98HER HONOUR:  Actually I withdraw that.  It would be five years with a minimum of three.

99MS HOLMES:  Thank you, Your Honour.

100HER HONOUR:  Thank you very much.  Well done, Mr Samson.  All right.  I'm looking forward to seeing you in October.  I'm sure - stand up, sorry, sir.  I'm sure when I see you I'll get a good report and it will - you know, the better you do, the less you're going to have to see me.  So that can be another thing to aim towards, is not having me in your life, Mr Samson.  All right?

101OFFENDER:  Yes, Your Honour.

102HER HONOUR:  So, you know, the better you do, the further apart I will make those judicial monitorings.  But every CCO I do now I am attaching judicial monitorings to.  I know it's been a long road, but there can be a temptation to sort of kick up your heels when you get out the door and say it's all over.  It's not all over.  I know that you are very devoted to your business, but the Community Corrections Order is what's keeping you out of gaol, all right?  So let me put it this way: here's you, here's gaol and here's the Community Corrections Order in the middle, all right?

103Now, a Community Corrections Order can be a difficult thing to negotiate.  It can be very frustrating.  There's a high staff turnover, people can change case managers.  It's fairly bureaucratic.  You are sort of pretty much micromanaged, all right?   So you're going to have to learn to deal with that.  When Corrections says jump, the best way for you to say deal with it is to say 'How high?'  If you can't make it to things, you let them know.  You provide the documentation that they need.

104You do not need - particularly with young men they go off on CCOs, they get there like, you know, 'Why?  I'm not using drugs, I'm working.  This Corrections order's getting in the way of my rehabilitation'.  A Community Corrections Order is there to assist you in rehabilitation, but it's also for the authorities to keep an eye on you over that two-year period.  You're not home free yet.  Do you understand?

105OFFENDER:  Yes.

106HER HONOUR:  So, look, it's going to be annoying, but you have to make your best efforts to comply with that order.  You are an extremely fortunate young man not to have gone to gaol for this.  Ordinarily you would get gaol for this.  If you hadn't worked as hard as you had, you'd be sitting inside with your five with the three, as I indicated.  All right?  You don't want to go there.  I know you don't want to go there, so please bear in mind you are not home free until that order is successfully completed.

107Now, no one wants this to wreck your life, but, as I said, people can become very frustrated with it.  You're probably working long hours on your business, it's your main focus; you want to go to Sydney to see your family, those sort of things.  You're going to have to jump a number of bureaucratic hurdles in order to achieve that.  Please don't put this order anything but first in your priorities, all right?

108OFFENDER:  Yes.

109HER HONOUR:  It's a fundamental mistake so many people, particularly young men, make.  All right, I'll see you in October.  In the meantime I wish you well.  I thank counsel very much indeed for their considerable assistance in this matter.

110MS HOLMES:  Thank you, Your Honour.

111MR MELASECCA:  Thank you, Your Honour.

112MS HOLMES:  Your Honour doesn't require the prosecution's attendance at the judicial monitoring?

113HER HONOUR:  No, I never do.

114MS HOLMES:  Thank you.

115HER HONOUR:  It's just a matter of keeping an eye on things.  It's also a means of making sure that things are running reasonably smoothly insofar as how the Corrections office is delivering what it's supposed to deliver and whether there's any sort of communication difficulties that can arise.

116MS HOLMES:  Yes, Your Honour.

117HER HONOUR:  Thank you.  Thank you, Mr Melasecca.

118MR MELASECCA:  Thank you, Your Honour.

119HER HONOUR:  We will adjourn to 9.30 on Monday.  Thank you very much.  Thank you.

‑ ‑ ‑