Director of Public Prosecutions v Sarkis
[2010] VCC 27
•9 April 2010
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
CR-09-01553
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FADI SARKIS |
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JUDGE: | HIS HONOUR JUDGE ALLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 9 April 2010 | |
CASE MAY BE CITED AS: | DPP v Sarkis | |
MEDIUM NEUTRAL CITATION: | [2010] VCC 27 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K. Richter | |
| For the Accused | Mr P. Morrissey |
HIS HONOUR:
1 Fadi Sarkis, you have pleaded guilty before me to one count of trafficking in a drug of dependence in a large commercial quantity. You have also admitted a number of prior convictions, including two prior convictions, recorded at the Melbourne Magistrates' Court in 2004 and the County Court in 2006, for trafficking in cocaine. The last of those convictions, which was entered on 15 March 2006, resulted in a sentence of 28 months with a minimum non-parole period of 17 months. You were released in relation to that sentence on 28 December 2007 and thus committed to the offences to which you have pleaded guilty before me whilst on parole in relation to trafficking in cocaine. As your counsel conceded at the outset, that is a significant aggravating feature in the circumstances of this case, which I will come back to in due course.
2 The gross seriousness of trafficking in drugs of dependence in a large commercial quantity is reflected in the term of imprisonment provided for by Parliament. The maximum is life imprisonment. It is the equivalent to the maximum in relation to murder.
3 The circumstances of your offending were set out in comprehensive detail by the learned prosecutor in a 37 page, carefully prepared document entitled 'Summary of Prosecution Opening' which was tendered and marked as Exhibit A. The precise details of the large number of transactions in which you were involved are set out in that document. It will remain on the court file. I do not propose to rehearse all of those details now. It is not necessary.
4 By way of précis, the circumstances were as follows: Between 16 October 2008 and 26 May 2009, Victoria Police conducted two investigations into drug trafficking called Operation Runway and Operation Planet. During the course of Operation Runway a police covert operative called Mick purchased drugs from one Trikilis. Investigations by the police involved in that operation revealed that you were the supplier of drugs to Trikilis. During the course of Operation Planet, another covert operative named Mina Hafez purchased drugs directly from you. During the course of that operation, telephone intercepts and other investigations revealed that you were engaged in the ongoing purchase and sale of drugs, including cocaine, methylamphetamine and methyl-dioxin methylamphetamine.
5 Disturbingly, the investigation revealed that you had involved your own 19 year old son in this drug trafficking trade. Your son, Fayez, trafficked for and on behalf of you and on your instructions. He also engaged, on a much smaller scale, in some independent drug trafficking. I have already sentenced your son and I refer to my sentencing remarks in relation to his case.
6 During the course of the investigations, the police identified Wayne Dobel as a supplier of drugs to you, and Susan Choppin as a supplier of drugs to Dobel.
7 You have pleaded guilty to trafficking in a large commercial quantity of an aggregate of drugs, namely cocaine, methylamphetamine and methyl-dioxin methylamphetamine. The total quantities of those drugs trafficked by you are as follows: MDMA, 2967 Ecstasy tablets, weighing approximately 790.5 grams of 20 to 25 percent purity. Cocaine, 1.445 kilograms, that is, approximately 51 ounces. Analysis revealed that the cocaine purchased by covert operatives was in the range of 40 percent to 70 percent purity. Methylamphetamine, 613 grams, that is, approximately 21.7 ounces, ranging between 4 percent purity and 10 percent purity. The total quantity of drugs trafficked by you between 6 October 2008 and 26 May 2009 was 2.6445 kilograms, well and truly a large commercial quantity.
8 The investigations revealed that you were involved in a large number of individual transactions, including the following:
· On 6 October you sold 986 Ecstasy tablets to Mr Trikilis.
· On 16 October you sold 1991 Ecstasy tablets to Mr Trikilis.
· On 1 November two ounces of cocaine were sold to a Mr Lewis.
· On 24 November one ounce of cocaine was sold to an unknown person.
· Between 12 December and 8 December 2008, six ounces of amphetamines were purchased from Mr Hunt and on sold to Mr Dobel.
· On 9 December two ounces of amphetamines were acquired from Mr Hunt to on sell to Mr Dobel.
· Between 22 December and 31 December 2008 two ounces of cocaine were sold to Mr Lewis.
· On 5 January 2009, one gram of cocaine was sold to an unknown person.
· On 30 January 2009 two ounces of cocaine were sold to Lewis.
· Between 1 February and 3 February 2009, three ounces of cocaine were sold to Mr Lewis.
· On 5 February 2009 7 ounces of cocaine were purchased for Mr Dobel.
· On 6 February five ounces of that cocaine was sold to Mr Lewis.
· Between 7 February and 11 February 2009 three ounces of cocaine were purchased from Mr Dobel.
· Between 12 and 13 February seven ounces of cocaine were purchased from Mr Dobel.
· On 10 March 2009, in two separate transactions, the covert operative purchased first a sample of amphetamines from you and later that day purchased 14 grams of amphetamines.
· On 2 April 2009 there was another sale to the covert operative, Mina, of 7 grams of amphetamines for $1000.
· On 8 April 2009, one ounce of amphetamines was sold to the covert operative, Mina.
· On 18 and 19 April you purchased three ounces of cocaine from Dobel.
· On 20 April you met with covert operative Mina and sold him one ounce of cocaine for $9500 and later that day eight ounces of cocaine for approximately $28,000.
· On 23 April the covert operative, Mina, ordered five ounces of cocaine and at 8 o'clock that evening purchased those five ounces for $47,500.
· On 30 April 2009 ten ounces of cocaine were sold to the covert operative by you. The agreed price for that sale was $93,000. At that time $66,500 was handed to you by the covert operative.
· On 4 May five ounces of cocaine were again sold by you to the covert operative, Mina, for $47,500. He also on that day paid the balance of $26,500 that was outstanding from the earlier sale on 30 April.
· On 14 May the covert operative purchased 11 ounces of cocaine from you for $102,300.
· On 26 May an agreement was made that you would sell 17 ounces of cocaine to the covert operative for a little under $160,000.
· On that day, covert operative Mina handed over $46,500, promising to pay you the balance of $111,600 later that day. You were arrested after that transaction a short distance away, in possession of a bag containing the $46,500 and mobile phones which had been the subject of telephone intercepts. Located inside your car upon your arrest was a brown substance in a plastic bag, which later transpired to contain 109.6 grams of amphetamines.
9 There is no doubt that you were engaged in the ongoing commercial sale and purchase of drugs, in the Giretti sense, between the dates specified in the count to which you have pleaded guilty. That is, you were carrying on the business of drug trafficking.
10 Subsequent to your arrest on 26 May, you were remanded in custody at the Melbourne Remand Centre. Very early in these proceedings you indicated your intention to plead guilty to an appropriate charge and to provide cooperation to the authorities. Pursuant to that indication, at an early stage, namely on 1 October 2009, you were moved from mainstream remand to the protection unit within the Deakin B unit at the Melbourne Remand Centre. This was done both for your protection and to facilitate lengthy interviews that would be necessary, between you and the police, for the purpose of obtaining a statement from you.
11 Over the ensuing weeks and during a period of several days, a great deal of time was taken by the police in interviewing you. In particular, you made a lengthy and comprehensive statement of your involvement in relation to this matter before me. The statement that you made runs to 55 pages, 164 paragraphs. As I say, it was made during the month of October 2009, although it was finally juratted, that is, signed by you and acknowledged as being true and correct, on 2 March 2010.
12 During the course of this plea, you were called to give evidence and swore to the truth of that statement and undertook to provide further cooperation to the authorities, if and when called upon, including giving evidence against the various co-accused in this matter. I am informed that trials are pending in relation to those co-accused and you will be called, it is expected, as a witness in those proceedings. Your statement has already been served upon those co-accused and they are therefore fully aware of the extent and nature of your cooperation with the authorities.
13 During the course of the plea hearing, the informant, Detective Senior Constable Hantsis was called. She confirmed the circumstances under which you offered to cooperate with the authorities and under which that cooperation had been provided. In particular, she said that your statement concerning your involvement in this matter was a detailed statement providing a narrative of your involvement and giving evidence about various matters, including the codes used between you and your co-accused. The informant said that your evidence would be valuable in the pending hearings and confirmed that, in her opinion, your cooperation with the authorities has put you at real risk of retribution and that your fear in relation to that is well-founded.
14 During the course of the plea in mitigation that was made on your behalf by Mr Morrissey SC, a number of documents were tendered in support of that plea. There was a psychological report of Jeffrey Cummins, dated 6 January 2010, marked FS1; a certificate from the Metropolitan Remand Centre Clinical Services confirming your completion of a Conflict Manager Program within the Deakin B unit; certificates of analysis confirming that you have remained drug free whilst on remand; and Exhibits FS4 and FS5 were character references, including a lengthy statement from your daughter, Maree Sarkis.
15 Maree Sarkis was called during the course of the plea on behalf of your son, Fayez. As I commented during the course of the proceedings, Ms Sarkis struck me as a most impressive young woman of whom I am sure her mother is proud and no doubt you are too. She swore to the truth of the matters set out in this statement FS4, the contents of which I have taken into account. There is also a character reference from Tony Yarrick, a long time close friend of yours, the contents of which I have also taken into account.
16 Mr Morrissey commenced his plea by emphasising that you were truly sorry for becoming involved in this activity again, having only recently been released from prison in relation to drug trafficking. He told me that you regarded it as a grave error of judgement and were deeply and genuinely remorseful. As I think I indicated during the course of the proceedings, I watched you carefully during the hearing of the pleas and observed what I regarded to be as strong evidence of true remorse on your part. At appropriate times during the course of the plea made on behalf of your son, and during the course of the evidence given by your daughter, you were not inappropriately distressed which was consistent, in my view, with deep shame on your part.
17 Mr Morrissey submitted that you have done everything anyone could have done to demonstrate that you are truly sorry and your desire to put this type of conduct behind you. Mr Morrissey submitted that, in all the circumstances of this case, you deserve some unusual clemency in terms of sentence. I accept that you have done everything possible, both to demonstrate your remorse and to repay the community by way of the extensive cooperation you have provided. I also accept that, in all the circumstances of this case, you do deserve some clemency or mercy in the sentencing process.
18 Mr Morrissey explained how it was that you became involved in this drug trafficking and said that this explanation "colours everything" in terms of your culpability and I agree with that. The clearest explanation for your involvement is set out in your own statement, which was tendered as an exhibit. In a nutshell, having been released from gaol on parole in early 2008 you met up with Wayne Dobel, whom you had originally met in gaol, because your son Fayez was interested in purchasing a car. Wayne apparently had contacts in the motor industry. Later in 2008, you became aware that Fayez was using cocaine. This was because your wife, Claudette, had brought to your attention that on two occasions you had found small deal bags containing white powder hidden in his bedroom. As any parent would be, she was deeply concerned about the welfare of her 19 year old son. You spoke to your son, confronted him with your suspicions and he confessed that he was using cocaine. He had also become so deeply involved in gambling that he had run up a debt to a loan shark in the sum of some $60,000 and was under immense pressure to repay that person. You met up with that person, the loan shark, who was known as Luca. He confirmed that the $60,000 was owed by your 19 year old son and you were given a month to pay it. You told the police that Luca knew where you lived, Luca knew everything about your family, and you had serious concerns for the safety of your son and your whole family.
19 I interpolate, by the way, to mention that during the course of the evidence of Senior Constable Hantsis, she stated that in her opinion your statement was full, frank and honest and that I could sentence you upon the basis that the explanations and details set out in your statement are truthful, and I do so.
20 To cut a long story short, after some period of indecision, you decided that the only way you could resolve this shocking problem as you saw it, was to become involved again in drug trafficking. You thought that it was the only way which might avail you of the necessary funds very quickly. As you have said many times since, both to your counsel and to Mr Cummins, that was a shocking error of judgement on your part, not only because it involved you in serious crime whilst on parole but, just as badly, it involved your 19 year old son.
21 During the course of the plea, Mr Morrissey also referred to the fact that, as a result of your cooperation you were, as Mr Cummins puts it, doing your time hard in custody. In Mr Cummins's opinion, you are doing your time hard not only because the Deakin B unit where you are held in protection is locked down for 21 hours per day and you are permitted in the exercise yards for periods of only 45 minutes at a time and subjected to other restrictions, but also because you are suffering a psychological disorder which has various symptoms including anxiety and depression which have caused you to spend much time ruminating and weeping in your cell. You told Mr Cummins when he interviewed you that you were upset about everything, but refused to take medication because you do not believe that it would help. As a result of these circumstances I accept that you have been and no doubt will continue to "do your time hard" in custody.
22 It was submitted that you have good prospects of rehabilitation: First, by taking the course that you have, you have truly burnt the bridges. Even if you attempted, it is highly unlikely, if not unthinkable, that you would now return to a life of crime. You have cut, by virtue of your cooperation, any remaining ties that you might have had in the criminal community. Beyond that, I accept that your prospects of rehabilitation are demonstrated by the depth and extent of your shame and remorse and the steps that you have taken in the relatively short time you have already spent in custody to involve yourself in educative programs within the custodial environment.
23 Moreover, Mr Morrissey pointed out that present in court were a large number of members of your family and community. He named them and they identified themselves. I accept Mr Morrissey's submission that the continuing support of your loyal family and circle of law abiding, decent friends augurs well in terms of your rehabilitation.
24 I was also told something about your background and it is set out in some detail in the report of Mr Cummins. In summary, you are 45 years of age, having been born in Lebanon on 7 June 1964. You arrived in Australia at age five in 1969. For most of your life you have lived, and your family lives still, in premises in Grantham Street Brunswick which were owned by your parents. Your parents returned to Lebanon in about 1994, for health reasons.
25 You met your wife Claudette in Melbourne and married her in 1986. You and Claudette have three children, as I have mentioned, Maree, aged 22, who is a chemical engineer. There is then your 20 year old son Fayez who is your co-offender in this matter, who I have already sentenced. Finally, there is your 18 year old son, Sam, who is presently doing a civil engineering degree at Swinburne University. No one else in your family, apart from your son Fayez, has ever been in any trouble with the police. There is no doubt that your wife, in particular, is a decent hardworking woman who has raised two exemplary children who I have seen in this court.
26 Your family has been placed under great stress as a result of a number of matters, which I will come to in a moment. Despite that, they stand by you and are visiting you weekly. Apart from your own immediate family, you have two brothers. You have an older brother, Salah, who has four children and lives in Coburg. He runs his own takeaway food business and has never been in any trouble with the police. Your younger brother Joseph resides with your parents in Lebanon and also, from what I read, is a law abiding, decent person.
27 As far as your education was concerned, you went to St. Ambrose school in Brunswick and then Brunswick Technical School through to Form 5, that is, Year 11. You attended the Collingwood TAFE for a short time, about one year, to do a diploma in electronics. You left that course in order to move into the hospitality or food industry, in which your parents were involved. Your parents ran a number of successful food outlets, including a café at the YMCA building in Elizabeth Street, Melbourne. You yourself, in your early 20s, set up your own takeaway food business in Royal Arcade. Thereafter, you ran a number of very successful businesses; including takeaway food outlets in North Coburg and in Brunswick.
28 Your financial success was such that you returned with your wife and children to Lebanon in 1998. Whilst there, you attempted to become involved in a business importing cattle from Russia. The business failed, you lost a significant amount of money and you returned to Melbourne in 2001, as I understand it, broke. Worse than that, when you came back to Melbourne there was a tax debt waiting. Before your departure you had become heavily involved in gambling and had run up this large tax debt. As a result of these problems, your family home was sold and you were penniless. Fortunately, your daughter and a cousin have been able to buy that home back.
29 You were unable to obtain employment, from what I have read in Mr Cummins's report. You were on a job search allowance and it was during this time that your gambling problem became worse and worse. Your life became so dissolute that you even left your wife and became involved, for a short time, in a sordid affair which resulted your introduction to cocaine abuse.
30 It was the cocaine use that led to your involvement in trafficking. As I have said, you were dealt with by His Honour Judge Gullaci in this court in early 2006 in relation to a charge of trafficking in cocaine between 10 May 2004 and 14 June 2004. As a result of that you were sentenced, as I have mentioned, eventually being released in December 2007 on parole.
31 You have now been in custody since May last year. Mr Morrissey rounded off his submissions by putting that you were now "a good bet for rehabilitation." He emphasised that you were now a pariah, as he put it, in the criminal world and it was not an option for you to return. As a result of this, he urged upon me that, in your case, specific deterrence is of less importance than it might otherwise have been. I accept that submission.
32 In summary, Mr Morrissey relied upon the following matters by way of mitigation: First, as I have mentioned, the unusual circumstances which led to your involvement in this matter. I have already commented upon those circumstances and I agree that they were so unusual as to justify some level of clemency. Secondly, you indicated your intention to plead guilty at a very early stage in the proceedings, months prior to the date fixed for committal. Thirdly, you provided significant comprehensive cooperation to the authorities. You have undertaken to go on providing that assistance. Clearly, as a matter of law, this entitles you to a very significant discount. The Crown have submitted that your cooperation, on its own, entitles you to a discount in the range of 35 percent. Next, Mr Morrissey relied, as I have said, upon the strong evidence of real and profound remorse on your part and, arising out of that, he then emphasised your excellent prospects of rehabilitation. I accept that you do have unusually good prospects of rehabilitation, notwithstanding your two prior convictions for trafficking in cocaine and notwithstanding that you committed this offence whilst on parole. As I have said, Mr Morrissey also relied upon the hardship of imprisonment, the fact that you are doing it hard by reason of a combination of circumstances, including your cooperation with the authorities and your psychological difficulties.
33 In response to Mr Morrissey's plea, the Crown conceded that your plea of guilty was at a very early stage and, in itself, entitles you to a discount. Secondly, the Crown conceded that your cooperation was important and had placed you at risk. Thirdly, they conceded that you were motivated in this case not by greed or any other selfish motivation, but a misguided desire to help your son clear his debt. However, the Crown pointed to the fact that you had two prior convictions for trafficking in cocaine. They submitted that your offending was aggravated by your being on parole when you offended. The Crown conceded that the need for specific deterrence in this case was significantly reduced because you had effectively burnt your bridges. But the Crown urged upon me to give appropriate weight to the important sentencing objective of general deterrence, which I shall do.
34 I have weighed all these matters in the balance as carefully as I can, and it is a difficult weighing exercise: on the one hand, this is your third offence for serious drug trafficking and this is a most serious example of that offence, namely trafficking in a large commercial quantity, aggravated by the fact that you were on parole and that you involved your 19 year old son. On the other hand, there are the compelling mitigating factors, which have been enumerated by your counsel, I have just summarised.
35 Taking all these matters into account, I convict you and sentence you to be imprisoned for six years and six months and I fix a minimum non-parole period of four years.
36 I declare, pursuant to s.6AAA of the Sentencing Act, that, but for your plea of guilty, together with the strong evidence of genuine shame and remorse on your part and your significant cooperation with the authorities, I would have sentenced you to 11 years with a minimum of eight. In my view, it is impossible to distinguish your plea of guilty from those other factors that I have just mentioned. Those three matters go hand in hand.
37 I declare that you have already served 318 days in pre-sentence detention which shall be reckoned as having been served pursuant to the sentence that I have just imposed. Were there any consequential orders to be made?
38 MS RICHTER: There is two orders, Your Honour.
39 HIS HONOUR: They are not opposed, Mr Morrissey?
40 MR MORRISSEY: There is one, Your Honour. We have just recently been served with an application for pecuniary penalty order.
41 HIS HONOUR: Yes, I understand it is to be adjourned off.
42 MR MORRISSEY: Yes, we ask that it be adjourned off. We want the opportunity to make some written submissions to - - -
43 HIS HONOUR: Do you want to just adjourn it sine die and then let my associate know when - convenient date to have it listed?
44 MS RICHTER: Yes, Your Honour.
45 HIS HONOUR: The application for pecuniary penalty order will be adjourned sine die. I order pursuant to s.78(1) of the Confiscation Act the forfeiture of the property referred to in the schedule of the draft disposal order, that property being listed a Items Numbers 1-23. I also order pursuant to s.33(1) of the Confiscation Act that the property referred to in the schedule of the draft forfeiture order, namely $369.40, a Nokia mobile phone and $46,500 cash be forfeited to the minister.
46 Can I thank counsel and Mr Hutton, who is not present, Mr Morrissey, for your assistance in this matter. I apologise for the slight disorder in my sentencing remarks which have been delivered extempore by virtue of circumstances beyond my control. I will tidy them up when I revise my sentencing remarks.
47 MR MORRISSEY: Thank you, Your Honour.
48 HIS HONOUR: You are excused. Take Mr Sarkis away.
49 MR MORRISSEY: Your Honour, can I just approach Mr Sarkis briefly before we - - - ?
50 HIS HONOUR: Of course. Just allow Mr Morrissey to speak to Mr Sarkis for a moment.
51 MR MORRISSEY: Thank you very much.
52 HIS HONOUR: Thank you.
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