Director of Public Prosecutions v Taleb
[2013] VCC 1311
•16 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00741
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AHMAD TALEB |
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JUDGE: | HIS HONOUR JUDGE GRANT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 July 2013 | |
DATE OF SENTENCE: | 16 August 2013 | |
CASE MAY BE CITED AS: | DPP v. Taleb | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1311 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | OPP |
| For the Accused (Plea) (Sentence) | Mr R. Van de Weil Mr S. Andrianakis | Stephen Andrianakis & Associates |
HIS HONOUR:
1 Ahmed Taleb you have pleaded guilty to one count of trafficking a commercial quantity of drugs of dependence and four counts of possession of a drug of dependence. The maximum penalty for the trafficking charge is 25 years imprisonment and the maximum penalty for possession of a drug of dependence is 400 penalty units or five years imprisonment. In addition, you have consented to me dealing with summary offences of possessing fireworks without approval and dealing with property, namely $12,035.40 suspected of being the proceeds of crime.
2 I have heard a summary of your offending from Mr Pickering. That summary is attached to these remarks as Exhibit “A”.
3 Briefly, between 28 June 2011 and 24 November 2011, you were involved in the trafficking of a commercial quantity of various drugs, namely, amphetamine, methylamphetamine, MDMA and cannabis.
4 Telephone and text message intercepts reveal the extent of your involvement in drug transactions with various people, some of whom have also been charged with drug offences. The evidence reveals that over a five month period you
· Actively and regularly engaged with other dealers and suppliers;
· Used the income derived from drug trafficking to invest in your property development business;
· Offered to provide samples of drugs for purchasers;
· Were able to supply or obtain significant quantities of drugs for purchasers;
· Arranged for the manufacture of drugs for delivery to other persons;
· Arranged for your younger brother, Haissem Taleb, to continue the drug trafficking business while you were overseas between 13 September and 17 October 2011 and during that time remained in regular contact with your brother to make sure the business continued to be well organised;
· You had the co-offenders Bigay, Cutri, Gibbard, Israeli, Mardini, Khoury, Saphir and Sammy Taleb sell drugs on your behalf;
· Used the co-offender Kelly as a middleman with manufacturers of methylamphetamine; and
· Used the co-offender Kokkalos to source cocaine from an unnamed supplier.
5 Evidence also comes from covert operatives who, in late October 2011, purchased drugs from you or negotiated to do so. Your dealings with those operatives provides one example of the scale of your operation, how responsive you were to the needs of those who placed orders with you and how quickly you could mobilise your contacts to provide the ordered drugs. Between 19 October and 24 October, you completed three separate transactions worth $3,000, $10,500 and $1,700. During these dealings, you required one of the purchasers to provide his drivers licence for copying. You did this to provide re-assurance that he was not a police officer.
6 On 24 November 2011, a search warrant was executed at your home. A search of the property located - $12,035.40; deal bags containing a total of 14 grams of methylamphetamine; plastic bags containing a total of 7.2 grams of cannabis, a plastic bag containing 2 ecstasy pills, a box of fireworks and a number of mobile phones.
7 It is difficult to determine how much profit you made from your drug trafficking enterprise. However, it is conceded that the operation involved a commercial quantity. Mr Pickering submitted that the “call log” reveals the breadth and size of your drug trafficking operation.
8 The evidence from the “call log” and the evidence from the covert operatives, confirms that you were managing and coordinating significant drug transactions. You were actively involved with a group of drug suppliers and dealers selling amphetamines, methylamphetamines, MDMA and cannabis. You engaged in this behaviour over a five month period. This is not the case of a man engaged in trafficking “to feed his habit.” You were motivated by the desire for financial gain. When you were overseas, you maintained contact with your brother to ensure the business continued to be profitable. This is a serious breach of the criminal law. Drug trafficking is a pernicious industry that causes great harm to our community. Those who choose to profit from such illegal activity must expect to pay a heavy price for their illegal behaviour.
9 At my invitation, the prosecution provided a sentencing range. Mr Pickering said that a head sentence of between five to seven years with a minimum of three to five years would be appropriate. I was told that in determining that range consideration was given to the reports of Dr Sullivan, your plea of guilty and your lack of prior criminal history. Mr van de Weil, appearing on your behalf, conceded that an imprisonment order had to be made was the However, he submitted that in determining the appropriate term of imprisonment, proper weight should be given to the principles set out by the Court of Appeal in the case of Verdins.[1] He submitted that your mental health at the time of the offending (and at the time of sentence) would require the court to moderate general and specific deterrence. He also submitted that your mental health at the time of the offending should reduce your moral culpability. I will comment on these submissions in a moment.
[1] (2007) 16 VR 269.
10 Mr Taleb, you are a 38 year old man with no prior convictions. You are currently living with your mother and father. You are the 5th of 9 children, with 7 brothers and 1 sister. You attended to year 12 at Brunswick High School and then worked in various jobs before obtaining employment in Campbellfield with a company that manufactured automobile parts. You left that company in 2007 after 13 years employment. You then commenced work with your brother in a construction and property development company.[2] Presumably this is the company that you were involved with when you engaged in the current offending.
[2] See p.2 Dr Sullivan’s report of 23/12/12 (Exhibit 2)
11 In your late twenties you experimented with drugs and by your early thirties you were using amphetamines and Xanax. In 2012 you told Dr Sullivan that you had also been using cocaine “over the last couple of years.” I have no doubt that you have been abusing drugs for a number of years and that there is a link between your mental health issues and your drug use. I am satisfied that you were, most likely, using drugs at the time you committed these offences.
12 On the issue of your mental health, I have been provided with a number of letters and reports. They cover two distinct periods.
13 The first period is from May 2007 to September 2010. A number of reports were tendered covering this period. The most relevant are those that come from Dr Wild. He was your treating psychiatrist during this time.
14 In October 2007, Dr Wild made an initial working diagnosis of ‘panic disorder with associated major depressive illness.’[3] In his initial report he notes that problems of anxiety and stress were ‘no doubt compounded by the use of recreational drugs.’ You continued to see Dr Wild until August 2008.
[3] See exhibit 5 at page 2.
15 Your contact with Dr Wild was renewed in 2010 with a number of visits between March and September of that year. Dr Wild also referred you to Dr Lehmann, a Clinical and Organisational Psychologist who saw you 3 times between 29 July and 30 August 2010. Dr Wild’s report of 1 March 2010 notes that you presented with a clear paranoid psychosis. He speculated that the use of methylamphetamine in the last year may have precipitated the psychosis.
16 Dr Wild assisted you until September 2010. In a letter of 14 September, Dr Wild states that he had reviewed your condition and that you felt well and denied any current symptoms or significant anxiety. He noted that you were taking amisulpride daily and benztropine and were sleeping well. You were reported as being calmer, less negative and coping with stressors.
17 I have no medical reports for the period after 14 September 2010 and before 2 June 2012. No materials have been tendered referring to any attendances upon mental health practitioners in 2011.
18 Dr Sullivan, who did not know you before 2012, prepared a report in August 2012 which included information that he had obtained after speaking with Dr Wild. Dr Sullivan provided the following opinion about your condition prior to the offending – “There is an earlier history of mood disorder in the form of anxiety and depression, but no history of any other significant mental disorder.”
19 Based on this assessment, I am satisfied that you would have been suffering from a form of mental disorder at the time of the offending. However, that is not the end of the matter. The Court of Appeal in Victoria has stated that “the principles of Verdins should be applied only after careful scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other matters.”[4] It is necessary for me to determine the nature and severity of your condition and how your condition affected your mental capacity at the time of your offending.
[4]R v Mune [2011]VSCA 231,[31]
20 In considering this matter I note the opinion from Dr Sullivan in his report of 17 July 2013, that - “There is no indication that mental disorder was of relevance to the alleged offending.”
21 In evidence-in-chief, Dr Sullivan seemed to qualify that opinion, certainly in relation to the issue of your ability to exercise appropriate judgment and your ability to make calm or rational choices or to think clearly, although he did not with any precision explain the extent to which these two areas were impaired or the way in which any impairment may have contributed to your offending.
22 Dr Sullivan’s evidence about both your judgement making capacity and your ability to make choices at the time of the offending was of course based on the information he had received. His report of 17 July 2013 indicates that he had the summary of the brief of evidence and his earlier report of 23 August 2012. This means his opinion was based on a relatively limited amount of evidence. Dr Sullivan did not, it seems, have access to the evidence from the ‘call log’ or the statements of the covert operatives and it is this evidence sheds considerable light on your decision making, the choices you made, your intentions and your motivation during the period of your offending. Mr Taleb, as I have already said, the evidence satisfies me that over a five month period you managed and coordinated a major drug dealing business; a business generating profits that were channelled into your property development business. Your motive was profit. You acted intentionally to achieve that purpose, making calculated and informed decisions.
23 Given the state of the evidence, I agree with the prosecutor’s submission that your mental condition at the time of the offending could only permit a very modest amelioration of sentence based on an application of the Verdins principles.
24 There are a series of reports that refer to your mental health from 2 June 2012 onwards. This is a time after your arrest. A report from North Western Mental Health Service dated 13 June 2012[5] makes it clear that when that service saw you, you felt overwhelmed by your current situation including the “upcoming case for drug trafficking.” Since that contact you have had periods of inpatient admission and been diagnosed with a psychiatric illness, namely schizophrenia. Dr Sullivan notes[6], that your symptoms “are now in remission while on adequate doses of antipsychotic medication and with ongoing abstinence from drug use.”
[5] Exhibit 11.
[6] See exhibit 2. Report dated 17 July 2013.
25 I am satisfied that the 2012 diagnosis of schizophrenia does provide a change in your personal circumstances that warrants appropriate mitigation of sentence.
26 You are on medication which, according to Dr Sullivan, you are tolerating well and appear settled on. Dr Sullivan has confirmed that you will be able to obtain adequate mental health care in prison and that you should persist with your medication. However, he does note that diazepam, which is currently used to treat your anxiety will be ceased in prison. He expresses the view that this may worsen your anxiety. Although there are other possible substitute medications, it appears that they have not in the past been as successful as diazepam in controlling your anxiety. In this respect your imprisonment term will be more onerous than it would be for a person of normal health. This is something that should also be acknowledged in my sentence.
27 Apart from some time in August 2012, you have been on bail since 25 November 2011. You have been residing with your parents. You are, it seems, free from illicit drug use and have the support of your family, your girlfriend and your local mosque. You are supported by your local mental health service and you are on appropriate medication. You have pleaded guilty and you have no prior convictions. I accept, on balance, that there are reasonable prospects for your rehabilitation. My reservations derive from previous unsuccessful attempts at drug rehabilitation[7] and the fact that you were residing with your parents for some of the time at least when the offending took place.
[7] On this issue see, for example, the report from Goldridge Rehabilitation Services (Exhibit 20) and paragraph 24 of the report of Dr Sullivan dated 23/12/12 (Exhibit 2)
28 The sentence I impose in this matter must acknowledge your guilty plea and your lack of prior convictions.
29 Mr Taleb, will you stand please.
30 Mr Taleb on charge one you will be convicted and sentenced to 5½ years imprisonment.
31 On charge 2, convicted and sentenced to 6 months imprisonment.
32 On charge 3, convicted and sentenced to 3 months imprisonment.
33 On charge 4, convicted and sentenced to 3 months imprisonment.
34 On charge 5, convicted and fined $300.
35 On the possess fireworks charge, convicted and fined $300 and
36 On the possession of property suspected of being the proceeds of crime, convicted and sentenced to 9 months imprisonment.
37 As the drugs and money found by the police at your residence on 24 November are most likely closely connected to your commercial trafficking, I do not intend to make any cumulative orders of imprisonment.
38 I fix a minimum term before you be eligible for release on parole of 3 years.
39 I make a declaration that you have already served 27 days by way of pre-sentence detention.
40 If you had been found guilty of these offences after trial, I would have sentenced you to a term of 7½ years imprisonment with a minimum of 5 years.
41 There are some ancillary orders that I have to make, Mr Taleb. The first one is an order that pursuant to s.464ZF(2) of the Crimes Act you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with sub-division 30A of Part 3 of the Crimes Act. I am making this order because the circumstances of the offence warrant it; the order, as I understand it, is not opposed; and the granting of the order is in the public interest. I must inform you that if you do not co-operate with the authorities in the taking of the mouth swab, reasonable force can be used to obtain the sample from you.
42 You can be seated.
43 I am also going to make an order the money that was seized, it is described as being $1,335.40 and $10,700, is tainted property and it is therefore forfeited to the Minister.
44 Finally I make a disposal order. Pursuant to s.78(1) of the Confiscation Act 1997 the property referred to in the schedule attached to the disposal order prepared by the prosecution be forfeited to the State and I further direct that the property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
45 Are there any other orders I need to make?
46 COUNSEL: No, Your Honour.
47 HIS HONOUR: Yes, thank you, the prisoner can be removed. I will just sign these orders.
(Orders signed and acknowledged.)
HIS HONOUR: Yes, thank you.
- - -
Exhibit A:
IN THE COUNTY COURT Indictment No.: B13292165
OF VICTORIA
AT MELBOURNE
County Court Ref No. CR-13-00741
DIRECTOR OF PUBLIC PROSECUTIONS
V
AHMAD TALEB
SUMMARY OF PROSECUTION OPENING
Date of document: 18 July 2013
Filed on behalf of: Director of Public Prosecutions
Prepared by:
Craig Hyland Solicitor’s Code: 7539
Solicitor for Public Prosecutions Telephone: (03) 96037666
565 Lonsdale Street
Melbourne VIC 3000 Ref: 1105939/Retread/KH
CHARGES:
Trafficking drugs of dependence – commercial quantity: s.71AA Drugs Poisons and Controlled Substances Act 1981
Possession of a drug of dependence – methylamphetamine: s.73(1) Drugs Poisons and Controlled Substances Act 1981
Possession of a drug of dependence – MDMA: s.73(1) Drugs Poisons and Controlled Substances Act 1981
Possession of a drug of dependence – methorphan: s.73(1) Drugs Poisons and Controlled Substances Act 1981
Possession of a drug of dependence – Cannabis L.: s.73(1) Drugs Poisons and Controlled Substances Act 1981
Related summary offences:
7. Possess fireworks
8. Possess proceeds of crime - $12,035.40
BACKGROUND
1.In March 2011, police commenced Operation Retread, an investigation into drug manufacture and trafficking by the Accused Ahmad Taleb and his associates. The drugs involved included amphetamine, MDMA, methylamphetamine, cocaine and cannabis.
2.Ahmad Taleb is 37 years old (DOB 10 September 1974) and resided at 1/12 Ormond Street Brunswick, and also during the period of Operation Retread with his parents at 92 Melville Road Brunswick West.
3.Two of the co-accused identified by police in the course of the operation were his brothers Sammy Taleb (34 years old) and Haissem Taleb (32 years old), who also resided at the parents’ house at Melville Road.
4.Police identified the following persons as associates of Ahmad Taleb during the course of the operation, all of whom have been prosecuted as co-offenders:
- Orhan Bigay
- Anthony Mardini
- Abdul Israili
- Paschalis Kokkalos
- Fred Khoury
- Kerry Gibbard
- Harold Kelly
- Hussein Zaphir
- Collette Cutri
5.Operation Retread was conducted between 28 June 2011 and 24 November 2011. It involved the use of covert operatives for the purpose of drug purchases from Ahmad Taleb together with warrants for telephone interceptions, whether of telephone calls or text messages.
Covert operatives:
6.The covert operatives made a number of contacts with Ahmad Taleb. These included:
- 19 October 2011 – Ahmad Taleb offers to sell both methylamphetamine at $3000 per quarter ounce and cocaine to covert operatives who are present at 92 Melville Road Brunswick under the pretence of buying a car. The operatives subsequently purchase the quarter ounce;
- 21 October 2011: covert operatives negotiate to purchase 1 ounce of methylamphetamine for $10,500 from Ahmad Taleb;
- On the same day, Ahmad Taleb offers to sell cocaine at $12,000 per ounce for 95% purity and $9500 for 80% purity, or amphetamine for $3000 per ounce;
- 24 October 2011: Ahmad Taleb sells 0.5 ounce “ketamine based” amphetamine to a covert operative for $1700.
Telephone and text message intercepts:
7.Police also obtained warrants for the recording of conversations and text messages between Ahmad Taleb and various co-offenders and drug purchasers.
8.During the telephone intercepts and recorded text messages between 28 June 2011 and 24 November 2011, the Accused, his co-offenders and a number of unknown drug purchasers and dealers used various code words and phrases to describe the drugs being trafficked, the quality, the amounts and the cost. These words and phrases are described in attached Schedule A.
9.A summary of all the calls and text messages, and the police interpretation of the calls, is described in Schedule B.
Trafficking by the Accused:
10.The calls, text messages and dealings with covert operatives reveal that:
(a) The Accused was the centre of a network of dealers and suppliers;
(b) Although a legitimate property developer, a large source of his income was from drug trafficking which was then put back into the property developments;
(c) The Accused was able to supply or obtain significant amounts of drugs including amphetamine, methylamphetamine, MDMA, cocaine and cannabis;
(d) The Accused would often offer to obtain drugs he did not currently have for purchasers in quantities they were seeking;
(e) The Accused would offer to provide samples to buyers if asked;
(f) The Accused would arrange for the manufacture of drugs for delivery to other dealers;
(g) While he went on an overseas holiday between 13 September 2011 and 17 October 2011, the Accused arranged for his brother to continue the drug trafficking in his absence but the Accused remained in regular contact to make sure that the trafficking remained successfully organised.
(h) The co-offenders Bigay, Cutri, Gibbard, Israili, Mardini, Khoury, Zaphir and Sammy Taleb all sold drugs on behalf of Ahmad Taleb;
(i) The co-offender Kelly was a trafficker who acted as a middleman with manufacturers of methylamphetamine for Ahmad Taleb;
(j) The co-offender Kokkalos was sourcing cocaine from an unnamed supplier for Ahmed Taleb;
(k) Haissem Taleb was managing the trafficking business in his brother’s absence;
(l) The recorded conversations, text messages and dealings with covert operatives reveal transactions of up to $1,616,940.00 cash.
Arrest:
11.On 24 November 2012, police executed a search warrant at the home of the Accused at Melville Road. The Accused was arrested and conveyed to St Kilda Rd police station. He was interviewed in a tape-recorded record of interview and made “no-comment”.
12.A search of the home located:
- $12035.40 believed to be proceeds of crime;
- deal bags containing methylamphetamine (14g);
- plastic bags containing cannabis (7.2g)
- a plastic bag containing two ecstasy pills (1.3g)
- a box of fireworks- a number of mobile telephones
Penalties:
The maximum penalty for this crime is:
- Traffick drugs of dependence : commercial quantity - 25 years (Level 2)
- Possession of a drug of dependence – 400pu or 5 years (Level 6) or both
- Possess fireworks – 100pu
- Possess proceeds of crime – 2 years (level 7)
Victim Impact Statement:
N/A
Other Orders:
s.464ZF
Forfeiture
Disposal
Pre-Sentence Detention:
The Accused has spent 27 days in custody in regard to this crime (4/8/12-30/8/12).
Chronology:
28 June-24 November 2011 Offence
25 November 2011 Charged
25 November 2011 Filing hearing, Application for Bail granted
15 June 2012 Committal mention, committal listed
6 August 2012 Warrant executed at Brunswick Police on 4/8/12 as his bail surety withdrew. Accused brought to MMC on this date and remanded to committal date 10/12/12
30 August 2012 Bail Application granted
16 October 2012 Special Mention
10 December 2012 Committal – adjourned due to health of Accused
22 April 2013 SHUB – plea of guilty
30 April 2013 Directions hearing
24 July 2013 Plea
SCHEDULE A
| Code | Actual |
| Big one | Ounce |
| Business Cards | Money |
| Cake | Drugs of Dependence |
| Cards | Money |
| Catch-up | Traffick Drugs of Dependence |
| CDs | Drugs of Dependence |
| Charles | Cocaine |
| Charlie | Cocaine |
| Cola | Cocaine |
| Cold Subject | Ice - Methylamphetamine |
| Cook | Manufacture Drugs of Dependence |
| Doves | Ecstasy MDMA (commonly have a dove imprint) |
| DVD | Drugs of Dependence |
| Dynamite | Good quality Drugs of Dependence |
| Fabric | Drugs of Dependence |
| Football Gear | Drugs of Dependence |
| Football Jumper | Drugs of Dependence |
| Fried Rice | Ice - Methylamphetamine |
| Get On | Traffick Drugs of Dependence |
| Glasses | Drugs of Dependence |
| Goods | Money |
| Have a kick | Traffick Drugs of Dependence |
| Ice Skating | Ice - Methylamphetamine |
| Ice-cream | Methylamphetamine. |
| It's Got Legs | Describe good quality Drugs of Dependence |
| Jeans | Drugs of Dependence |
| Key | Kilogram |
| Loui | Speed - Amphetamine Type Substance |
| Materials | Drugs of Dependence |
| Mother | Describe good quality Drugs of Dependence |
| Movie | Drugs of Dependence |
| O | Ounce |
| Paper | Money |
| Pasta | Drugs of Dependence |
| Pearl | Cocaine |
| Peruvian | Cocaine |
| Peruvian tiles | Cocaine |
| Petrol | Amphetamine Type Substance |
| Put Your Apron On | Manufacture Drugs of Dependence |
| Scud Missile | Good quality Drugs of Dependence |
| Seuds | Amphetamine Type Substance |
| Small Ones | Ecstasy MDMA |
| Sunglasses | Drugs of Dependence, Ice-Pipe |
| Sweets | Drugs of Dependence |
| The big white one. | Cocaine |
| The Dove | Ecstasy MDMA (commonly have a dove imprint) |
| The Eye | Methylamphetamine, Ice |
| The Nose | Cocaine |
| The one that makes you run fast. | Amphetamine. |
| The one that starts with K | Amphetamine made using Keytone process. |
| Tiles | Drugs of Dependence |
| Timber | Drugs of Dependence |
| Tools | Drugs of Dependence |
| Training gear | Drugs of Dependence |
| T-shirt | Drugs of Dependence |
| Uncle Loui | Speed - Amphetamine Type Substance |
| Wippa | Speed - Amphetamine Type Substance |
| Yazza | Drugs of Dependence |
| Zero | Ounce |
SCHEDULE B
Refer to TI Appendix 2 Police Brief pp 439 to 575 (as attached).