Director of Public Prosecutions v Sharbell

[2017] VCC 1918

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00023

DIRECTOR OF PUBLIC PROSECUTIONS

v

EDMOND SHARBELL

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6, 7, 8 & 9 June 2017, 7 July 2017,23 October 2017 and 24 November 2017
DATE OF SENTENCE:	1 December 2017
CASE MAY BE CITED AS:	DPP v Sharbell
MEDIUM NEUTRAL CITATION:	[2017] VCC 1918

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Champion	Office of Public Prosecutions
For the Accused	Mr A. Trood	Anthony Isaacs

HIS HONOUR:

1On 9 June 2017 you, Edmond Sharbell, pleaded guilty to three indictable offences and two summary offences.  The indictable offences are as follows:

· Attempting to traffic in a commercial quantity of a drug of dependence contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981. (Charge 1) This offence carries a maximum penalty of 25 years' imprisonment.

· Two charges of possessing a firearm as a non-prohibited person contrary to s.7(1) of the Firearms Act 1996. (Charges 2 and 3) Each of these offences carries a maximum penalty of up to four years' imprisonment or 240 penalty units.

2You have additionally pleaded guilty to the following summary offences. 

· Drive whilst disqualified contrary to s.30(1) of the Road Safety Act 1986 (Summary Charge 12). This offence carries a maximum penalty for a first offence of 30 penalty units or imprisonment for up to four months, and for a subsequent offence, 240 penalty units or imprisonment for up to two years. The latter is applicable in your case.

· Dealing with property suspected of being the proceeds of crime contrary to s.195 of the Crimes Act 1958 (Summary Charge 15). This offence carries a maximum penalty of up to two years' imprisonment.

3Details of your offending are set out in the amended summary of prosecution opening dated 17 October 2017 which was tendered in the course of your plea.[1]

[1]Exhibit A

4You have also admitted the contents of a Victoria Police criminal record.[2]  I note you have no prior convictions, save for the driving offence, and your criminal record details subsequent offending which was dealt with in the Dandenong Magistrates' Court initially in September 2015.  I accept the submission made by your counsel, Mr Trood, that the whole of your offending involving these matters and the matters in the Victoria Police criminal record occurred over a period of a few months and that you otherwise have no relevant criminal history.

[2]Exhibit B

5Your offending in relation to Charge 1 is unusual in that you had no realistic prospect of ever being successful in your attempt to traffic the particular drug of dependence, namely 1,4-butanediol.  Your offending in relation to this charge could fairly be described as amateurish and it lacks the usual hallmark for such offending of a very significant financial benefit potentially flowing to you.  Nevertheless, the quantity of the substance was found to be in excess of three times the minimum amount necessary to satisfy the definition of a commercial quantity.

6The two weapons offences relate to a sawn-off shotgun and a modified .22 rifle, both fitting the definition of a handgun.  Notwithstanding that you were a
non-prohibited person at the time of your offending, there can be little innocent explanation for the possession of weapons of this type other than for the purposes of criminality.  There is however no evidence that you modified the weapons yourself or that you intended to use them in particular criminal acts.

7The first summary offence to which you have pleaded guilty of driving whilst disqualified did not involve any interference to other drivers, nor create any particular danger to the public.  Nevertheless, such an offence undermines the regulatory framework for legal road users.  I accept that the disqualification from driving itself resulted from an accumulation of demerit points. 

8The second summary charge involving the possession of property suspected of being the proceeds of crime involves three motorcycles and an assortment of stolen bank and identity cards that were found within your car.  Once again, at that time at least, in 2014 when this offending occurred, you indicated by your conduct a conscious disregard of the operation of law and the property of others.

9You are now 44 years of age and you came to Australia from Lebanon at the age of 21 years.  I accept, as put by Mr Trood on your behalf, that prior to your arrival in Australia you had been the subject of particularly traumatic events arising in the context of the civil war in your original homeland.  Your education and background in Lebanon involved technical training in electro‑mechanics and electronics following completion of your secondary education, and you had worked in excess of two years repairing dental equipment before coming to Australia.

10Your work history in Australia, apart from an initial period of working as a production line packer, involved approximately 20 years working with family in convenience stores.  You were working in such a store in Narre Warren in 2014 when your offending occurred.

11After your apprehension for this offending you have ceased with that employment, causing great disruption both to yourself and your family.  You have however to your credit initially obtained work as a cleaner and worked in office fit-outs for approximately one year.

12Between August 2016 and March 2017 you were employed in a business involving concrete grinding.  I accept you have a good work history.  I have been assisted in reaching that conclusion by reading the references tendered on your behalf from Mr Danny Spiliotis, Mr Darren Vassallo and David Vassallo.[3]  I have also read the reference provided by your wife Jelda Sharbell,[4] which corroborates the circumstances of your involvement in the civil war in Lebanon and the circumstances of your traumatic escape from that country and your ultimate arrival in Australia as an Amnesty refugee.  I note that you remain married and you are the father of three young children aged six, seven and eight years.

[3]Exhibit 2

[4]Exhibit 3

13I accept that you have strong family support and your strong work ethic, your absence of prior offending and subsequent offending, apart from the events that were dealt with in the Dandenong Magistrates' Court, enables me to conclude that your prospects for rehabilitation are good.

14Following your offending you have suffered significant physical injuries in a motorcycle collision in April 2017. I have taken into account the report from your general practitioner, Dr Wilcox, dated 6 July 2017, your treating surgeon, Mr Matthias Russ, dated 16 November 2017,[5] and two reports from your physiotherapist, Sie Wey Lim, which were undated but relate to treatment provided from 7 June.[6] 

[5]Exhibit 5

[6]Exhibit 3

15I have also considered the material that was provided on behalf of Justice Health as to the availability of medical treatment which would be provided to sentenced prisoners.  I accept the submission made by Mr Trood on your behalf that hydrotherapy in particular will not be available to you during in term of imprisonment and physiotherapy treatment may vary depending on the facility in which you are detained. 

16I have also considered the report from Ms Pamela Matthews, forensic psychologist, which was tendered in evidence as part of your plea.[7]  Her conclusion is that you are likely to experience a more difficult time when incarcerated than most other prisoners, given the diagnosis she makes of post‑traumatic stress disorder and her opinion that any term of imprisonment is likely to trigger past memories of your time being held captive by the Hezbollah terrorists in Lebanon.  This is clearly a matter which would need to be brought to the attention of the relevant authorities during any period of incarceration.

[7]Exhibit 6

17I have taken into consideration recent comparable sentences, particularly in relation to the drugs charge, Charge 1.  These were set out in the Summary of Sentencing Decisions of the 2016 calendar year.[8]  I accept the submission made by Mr Trood on your behalf that the circumstances of your offending in relation to attempted trafficking are quite unusual and therefore a comparison with current sentencing practice is of limited assistance. 

[8]Exhibit D

18In relation to the additional matters which are set out in the Sentencing Guidelines under the provisions of the Sentencing Act 1991 I am satisfied that your moral culpability is less than would ordinarily be anticipated from this type of offending. I believe that there is less a need than would ordinarily be the case to provide great weight to specific deterrence, again taking into account your absence of a relevant criminal history and your conduct since late 2014 which suggests good prospects for rehabilitation.

19Nevertheless, the offending in relation to the three indictable offences in particular is a type that requires strong denunciation by the court and the community, and notwithstanding the submissions forcefully put by Mr Trood on your behalf, any sentence other than one of immediate imprisonment would in my view be quite inappropriate. 

20I would ask you stand now if you will, Mr Sharbell. 

21I propose to sentence you as follows. 

22On Charge 1 you will be sentenced to term of imprisonment of four years. 

23On Charge 2 you will be sentenced to a term of imprisonment of 12 months. 

24On Charge 3 you will be sentenced to a term of imprisonment of 12 months.

25On Summary Charge 12, driving whilst disqualified, you will be sentenced to one month's imprisonment. 

26On Summary Charge 15, dealing with property suspected of being proceeds of crime, you will be sentenced to six months' imprisonment. 

27I direct that six months of the sentences imposed for each of Charges 2 and 3, they are the weapons offences, be served cumulatively with the sentence imposed for Charge 1. 

28I further direct that three months of the term of imprisonment imposed in respect of Summary Charge 15 be served cumulatively with the term of imprisonment imposed for Charge 1. 

29The total effective term of imprisonment is therefore five years and three months.  I direct that you serve a minimum of three years and nine months before becoming eligible for parole.

30I declare pursuant to s.6AAA of the Sentencing Act that but for your guilty plea I would have imposed a total effective sentence of seven years and three months with a minimum term of five years.

31I further declare that you have served 13 days in presentence detention, not including this day, and I direct that be noted in the records of the court.

32Upon being convicted of attempting to traffic a drug of dependence commercial quantity pursuant to s.33(1) of the Confiscation Act, the property referred to in the schedule will be forfeited to the minister. 

33Upon your conviction pursuant to s.78(1) of the Confiscation Act 1997 the property referred to in the schedule be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested, analysed and then destroyed.

34Mr Trood and Mr Sharbell, I've taken the liberty, Mr Sharbell, of attaching the medical reports that were tendered in your plea to my orders so that insofar as we've been assured by Ms Noblett on behalf of the Corrections authority that certain levels of treatment are available, it is to make sure that the authorities are notified of your condition and to enable them - well they get a head start.  They don't need to probably arrange any independent examination. 

35MS CHAMPION:  Sorry, just one further matter, Your Honour.  Did Your Honour wish to make an order in relation to Mr Sharbell's licence?  It's a matter for Your Honour.  It's not mandatory.

36HIS HONOUR:  Mr Sharbell, I will make an order on your licence.  Driving whilst disqualified ordinarily warrants an order for further disqualification.  I'm just going to make an order for 12 months from today's date so the high likelihood it's not going to have any effect on you but there should nevertheless be an order. 

37MS CHAMPION:  Yes, Your Honour.

38All right.  If there is nothing further - Mr Sharbell, you'll have to go with the Corrections officer now.  It is never a pleasant task to sentence anyone to a term of imprisonment.  I am aware of your circumstances.  I hope that some good comes from it and you can note from what I have said in the remarks that the minimum term before your eligibility for parole and even the principal effective term of imprisonment are lower than they would ordinarily be for this type of offending.  I wish you best of luck.  Thank you. 

39Adjourn the court.

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