Director of Public Prosecutions v Sayah

[2020] VCC 1469

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00343

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABBOUD SAYAH

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2020
DATE OF SENTENCE:	18 September 2020
CASE MAY BE CITED AS:	DPP v Sayah
MEDIUM NEUTRAL CITATION:	[2020] VCC 1469

REASONS FOR SENTENCE

---

Subject: Criminal law - sentence
Catchwords: one charge trafficking a drug of dependence in a commercial quantity – one charge possessing a firearm while being a prohibited person – one charge  possessing a drug of dependence (rolled up charge)  - offences relate to one occasion -  began using steroids at 17 – progressed to ice GHB -  injured badly as a result of being shot  on two occasions -  extensive criminal history  mainly drug related – mild intellectual disability – severe substance abuse -  personality disturbances -   post traumatic disorder -  drug courier – sensible  moderation of general deterrence necessary.
Cases Cited: DPP v Barbaro [2020] VCC 1176; Condo v R [2019] VSCA 181; Brown v R [2020] VSCA 212; Verdins v R [2007] VSCA 102
Sentence: Total effective sentence  6 years,  non parole period 3 years 6 months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	OPP
For the Accused	Mr R. Melasecca	Melasecca Kelly & Zayler

HER HONOUR:

1Abboud Sayah, you have pleaded guilty to one charge of trafficking a drug of dependence in a commercial quantity, one charge of possessing a firearm while being a prohibited person and one charge of possessing a drug of dependence.  All these charges arose on one occasion, 4 June 2018.

2It is convenient to state from the outset that the first two charges are particularly serious, attracting maximum prison sentences of 25 years and 10 years respectively[1].

[1] I note that charge 1 is a Category 2 offence pursuant to s. 3(1) of the Sentencing Act and is therefore subject to sentencing constraints which do not arise in the circumstances of this case.

3The third charge is also potentially serious as it is a rolled up charge involving 30 vials of steroids, and the maximum penalty is five years' imprisonment although only one year if the offence was not committed for trafficking.  The substances found in your room at your home are not substances that are part of the relevant schedule to the legislation, but the evidence is that you were a drug addict using steroids and being dependent upon them, they were for your own use.

The offending

4You were arrested on 1 August 2018 and have remained in custody since then.  A 10 day trial was fixed for 20 April this year, the issue being the quantity of drug involved, but the case was resolved in February.

5On 4 June 2018 you were seen by police speeding while driving a Mercedes Benz car in Bell Street, Preston.  When intercepted by the police you gave a false name and address and date of birth and when police detained you, you gave them the correct details.  They ascertained that you were driving whilst disqualified and the car was impounded and you were released.

6When the car was searched it was found to contain drugs and a firearm, constituting Charges 1 and 2.  The drugs were in a series of plastic bags hidden under a mat in the front passenger footwell.  The substance, when analysed, was found to be 966.7 grams of methylamphetamine mixture with a purity of 80 per cent, resulting in 773 grams of pure methylamphetamine.  Your fingerprint was found on one of the plastic bags.

7A handgun was found using X-ray scanning in the centre console of the car and the console had to be removed to retrieve it.  It was a .38 calibre semi-automatic firearm loaded with four bullets and with its serial number filed off.  DNA matching yours was found on the gun.

8On the day of your arrest a search was conducted of your bedroom and
30 phials of steroids were found, namely boldenone, testosterone and androlone.  That is the subject of Charge 3, a rolled up charge.

Role in the offending, and personal background and circumstances

9As to your role in the trafficking the evidence is less than clear.  Your background and personal circumstances are relevant to the consideration of this role and also to the length of the prison sentence I will impose.  You have suffered from drug addiction for many years, having started using illicit drugs when you were 25.

10An indication of the extent of your addiction is demonstrated by what happened on 24 June, three weeks after your apprehension in Bell Street.  Police were called to a city hotel where, in a drug affected state, you were attempting to book a room to stay for a second night at the hotel.  En route to the police station your physical condition deteriorated and an ambulance was called to take you to hospital.  You were admitted and placed in an induced coma.

11As to your background and circumstances I shall set those out in some detail and then return to consider the question of your role in the offending.  You are a 43 year old man who grew up as one of five children in a Lebanese immigrant family, none of whom have been involved in any criminal activity.  As a child you struggled at school but your academic and behavioural problems were never adequately investigated and after leaving school at 14 you spent several years in Lebanon with your father with no further education, nor any employment there.

12From the age of 17 you worked as a labourer and also developed your skills in kickboxing.  In this context you started using steroids, which led to illicit drugs and by the age of 30 you were using the drug, ice.  It was at this stage that your history of offending began.

13By the age of 36 you were also using GHB, Xanax and Oxycontin.  The latter two drugs were used to control the pain you experienced following being shot on two occasions in 2013 and 2015.  You were badly injured each time, particularly in 2013 when you were shot four times and took a year to learn to walk again, owing to the injuries to your leg.  The shooting incidents occurred in the context of drug related activities involving others, whereby you were called upon to, 'mediate, reconcile or deescalate', in certain situations, to use the wording of the defence submissions.

14Apart from a number of street and driving offences most of your previous convictions were drug related.  You have been generally unable to comply with community orders and have not had the benefit of meaningful drug or psychological treatment.

15In November 2016 you were sentenced to prison for 193 days for what appears to have been a consolidation of offences and a breaching of a Community Correction Order.  This was your first prison sentence.  That offending included possession of a firearm as a prohibited person, while in 2015 you were convicted of possession of a weapon, in that case a laser.

16The report of psychologist, Mr Luke Armstrong, who assessed you recently, was produced.  In particular, Mr Armstrong assessed your psychopathology and intellectual functioning.  He concluded that you presented with chronic co-occurring substance abuse, mild intellectual disability and personality disturbances.  There were also features of post-traumatic stress disorder, although these fell short of a formal diagnosis.

17However, Mr Armstrong thought that this possibility should be reviewed and that any treatment proposed for your other conditions would overlap with treatment for PTSD.  He considered your use of a firearm was consistent with your distorted belief that it was necessary to protect yourself, magnified by previous incidents and your mental health problems.  Mr Armstrong considered your substance abuse condition to be severe, compounded by your borderline functioning in terms of your intellectual deficits.  He thought that your tolerance would have been so high when first incarcerated that the pain medication provided for you then was inadequate to manage your withdrawal, hence your resort to illegal drug taking while on remand, which only ended when you participated in a program dealing with ice abuse in late 2018.  You apparently ceased drug use in prison from January 2019 and drug screen results were tendered, showing negative results from September 2019 to March 2020.

18Mr Armstrong noted from the history you gave him that your drug taking, which included steroids, caused you to sever contact with your siblings and rendered you unemployable.  A gambling problem you developed was a secondary result of your drug abuse.

19The combination of tests administered by Mr Armstrong and the history of your early development as confirmed by your father, led him to a diagnosis of borderline cognitive functioning and mild intellectual disability.  This, combined with your other problems, led to poor coping skills, limitation in appreciating risk in social situations and immature social judgment, with your consequent naivete exposing you to exploitation and manipulation by others.  Even though you knew what you were doing was wrong your combined conditions led to impulsive and self-destructive behaviours.

20In summarising your mental state and personality, Mr Armstrong concluded that you have a spectrum of complex problems including aspects of personality disorder, suggesting an overlay of antisocial personality disorder, but he ruled this out as a primary diagnosis or primary causative factor for your offending.

21In a supplementary report dated 8 August 2020 Mr Armstrong explained that gullibility and lack of awareness of risk is often a feature of intellectual disability and your limited cognitive capacity meant you could not extricate yourself from an escalating pattern of offending because of your impaired judgment.  This applied to the trafficking offending as well as the possession of the firearm.

22As I indicated earlier in these sentencing remarks, an assessment of your role is partly linked to aspects of your condition as described by Mr Armstrong in his report.  Your possession of a loaded firearm while trafficking a commercial quantity of drugs is an important aspect of determining your role in the offending.

23The defence submission was that you were only a courier but the prosecution argument was that while there was nothing to exclude your role being that of a courier, that role is not conceded.  It was submitted on your behalf that the opened packet of methylamphetamine found in the car bearing your fingerprint, indicated that you had used some of the drug and supported the assertion that you were merely a courier with a drug addiction.  That is not conceded by the prosecution but the psychological evidence and the background material clearly demonstrate your severe and longstanding drug addiction and I accept that your role was most likely that of a courier.

24The presence of a loaded firearm as well as the drugs in the car you were driving when apprehended, has the clear appearance of the gun being linked to the trafficking, making the criminality more serious.  However, the firearm was not discernible to anyone searching the car and was only located after an X-ray process was used and the console removed.  Accordingly, it would not have been readily accessible by you or anyone else.  Mr Armstrong's opinion is that your possession of the firearm is explained by your history of being shot and your distorted perceptions about your personal safety, emanating from a form of paranoia associated with your symptoms of PTSD.

25I accept that possibility and accordingly in that context your moral culpability and relation to the possession of it is slightly reduced, but starting from an elevated position because of the possible link to trafficking.

Sentencing discussion

26I was referred by Mr Albert to the sentences in the cases of Barbaro[2] and Condo[3], recent cases involving drug trafficking with some similarities to this case.  Both involve more serious offending than in this case in that both offenders were acting as part of a syndicate.  Otherwise the objective circumstances in Barbaro are somewhat similar, although your personal circumstances place you in a very different position.  Additionally, I am told that the sentence is the subject of an appeal.  Insofar as current sentencing practice is concerned those two cases provide only marginal guidance.

[2] DPP v Barbaro [2020] VCC 1176

[3] Condo v R [2019] VSCA 181

27Of course the quantity of drugs in this case is very high, well above the basic level for commercial quantity.  That quantity is 250 grams of mixed drug or 50 grams pure.  In this case the quantity was, as I said earlier, 966.7 grams or 773.1 grams or 80 per cent pure, almost four times higher than the basic level.  Even accepting your role as a courier with a longstanding serious drug addiction, a substantial sentence of imprisonment is warranted.  It stands to be reduced somewhat by your mental health condition, in large part because of the application of the principles in the case of Verdins[4].

[4] Verdins v R [2007] VSCA 102

28A decision in Brown v R[5] was handed down as the plea in this case was being heard, and later that day Mr Richter, who appeared on your behalf, submitted that insofar as any aspect of disordered personality was identified by Mr Armstrong, that, together with the other impairments diagnosed, had the effect of enlivening the principles in the decision of Verdins.  Accordingly, your moral culpability and the need for the sentence to reflect general and specific deterrence, are reduced.  Indeed, although Mr Albert for the prosecution argued that you knew what you were doing was wrong, and it was serious offending, he conceded that Mr Armstrong's assessment allowed for some reduction of moral culpability.  The need for general deterrence is of significant importance in a case of drug trafficking, given that distribution of drugs such as methylamphetamine has the potential for causing great harm in the community.  That is particularly so when large quantities are involved as they are here, and the penalty should reflect that.

[5] Brown v R [2020] VSCA 212

29In this case your circumstances call for the sensible moderation of general deterrence and denunciation as purposes of the sentence.  That said, it remains for me to consider the other mitigating factors which your circumstances present.  You pleaded guilty shortly before the final directions hearing, two months before a 10 day trial was due to begin.  While strictly speaking, it was neither an early nor a late plea.  It came at the earliest opportunity, given that the prosecution made some concessions as to problems with proof of your role in the offending.  It has considerable value in avoiding a trial and deserves a discount on your sentence.

30While there is no direct evidence of remorse, the guilty plea carries some value in that regard, as does your acknowledgment of wrongfulness and your efforts to address your drug dependence.  These are positive indications for your rehabilitation.

31You have an extensive criminal history over some 23 years, including some limited similar offending, all dealt with in the Magistrates' Court[6].  The first two charges represent an escalation from past offending, but having used your time in custody effectively, you have made considerable progress in your rehabilitation.  That signals some optimism for your progress to continue when you are released.

[6] Save for an appeal in 2014 involving a driving offence

32There remains a need for specific deterrence in that your sentence as punishment should play a part in deterring you from reoffending.

Sentence

33Mr Sayah, I sentence you as follows:

for Charge 1, five years' imprisonment;

for Charge 2, three years' imprisonment;

for Charge 3, nine months' imprisonment.

34The sentence for Charge 1 is the base sentence for the purposes of cumulation.  I order that nine months of the sentence for Charge 2 and three months of the sentence for Charge 3 be served in cumulation upon the base sentence.  That results in a total effective sentence of six years.  I order that you serve a minimum period of three years and six months before being eligible for parole.  You have been in custody for 777 days until today, which is to be declared as already served, and I shall note that on the court record.

35I note that you are sentenced as a serious drug offender under the legislation but the prosecution does not seek a disproportionate sentence.

36Under s.6AAA of the Sentencing Act, if you had pleaded not guilty to these charges I would have sentenced you to eight years' imprisonment with a non-parole period of five years.

37Orders for forfeiture and disposal are sought by the prosecution, and through your counsel you have consented to those orders and I make those orders.

38Is there anything that I have neglected or omitted?  Mr Albert?

39MR ALBERT:  Yes, Your Honour.  In your sentencing reasons I am not sure if he is a  serious drug offender, Your Honour.

40HER HONOUR:  Sorry, I cannot hear you.  Could you repeat that slowly?

41MR ALBERT:  So, yes.  I am not sure if he is a serious drug offender, Your Honour.

42HER HONOUR:  Really?

43MR ALBERT:  Yes.  He will be after this sentence but I think that is right, Your Honour.  I think we have gone through this with my instructor at some point.

44HER HONOUR:  I looked at the Act and I thought he did classify but you think that is not the case?

45MR ALBERT:  Yes.  I think that is right, Your Honour.  I will check it again.

46HER HONOUR:  All right.  Do you want to check it and I will just see if
Mr Melasecca has anything to say?

47MR MELASECCA:  I bow to Mr Albert's greater wisdom, Your Honour, but I am checking as we speak, Your Honour.

48HER HONOUR:  All right.  I will have a look.

49MR MELASECCA:  Yes.  Yes, 6B.  That just says, appears that under the definition of 6B it does not qualify, Your Honour.  He needed to have been convicted of a drug offence for a term of imprisonment.  That is in the 6B  sub-s.(2), Your Honour.

50HER HONOUR:  Yes, I have got that here.  Does that mean previously sentenced to a term of imprisonment?

51MR ALBERT:  Yes, he becomes a serious drug offender for subsequent offences.  This qualifies him as a serious drug offender, if my recollection is right, Your Honour.   There was an exchange of emails between myself and my instructor about what I canvassed and I am looking for that exchange.

52HER HONOUR:  I am just looking at Schedule 1.

53MR ALBERT:  No, he is not a - no, not a serious drug offender, Your Honour.

54HER HONOUR:  All right.  I will strike that out.

55MR ALBERT:  I think my learned friend - my instructor may have spoken to my learned friend about this as well.

56HER HONOUR:  All right.  I will strike that out.  If there is any change of mind about that let me know.

57MR ALBERT:  Yes.

58HER HONOUR:  It is simply something that has to be - if it does apply it just has to be noted on the record, that is all.

59MR ALBERT:  Yes.

60HER HONOUR:  All right, thank you.  In that case if there is nothing else we can close the link now.  All right.  Now, my associate would like the link left open while I leave the Bench so I will do that.  Thank you.

61MR ALBERT:  As Your Honour pleases.

- - -