Director of Public Prosecutions v Zakariya

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR-18-02395
CR-18-02397

DIRECTOR OF PUBLIC PROSECUTIONS

EVAN ZAKARIYA
AYMON FATHO

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 13 December 2019; 13 March 2020; 4 May 2020
DATE OF SENTENCE:	8 May 2020
CASE MAY BE CITED AS:	DPP v Zakariya & Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 603

REASONS FOR SENTENCE
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Subject: Sentencing

Catchwords:  Pleas of guilty; trafficking 1,4-BUTANEDIOL; limited roles in wider trafficking operation of which brother of Fatho principal; prior offending not incl. trafficking; Zakariya also prohibited person possessing firearm with relevant priors
Legislation Cited:     Sentencing Act 1991 (Vic) s6AAA
Cases Cited:            R v Berichon [2013] VSCA 319
Sentence:                 Aymon Fatho: 6 months imprisonment (185 days PSD)
Evan Zakariya: 11 months imprisonment (time served) and CCO for 10 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Singh	Solicitor for Public Prosecutions
For Accused Zakariya	Ms N. Kaddeche
For Accused Fatho	Ms S. Lacy

HER HONOUR:

1Aymon Fatho, you have pleaded guilty to a single charge of trafficking a drug of dependence, namely 1,4-butanediol on 28 April 2018. You have also admitted a prior criminal history to which I shall refer later.
2Evan Zakariya, you have pleaded guilty to a charge of trafficking a drug of dependence, namely 1,4-butanediol, between 18 March and 18 April 2018. You have also pleaded guilty to three charges of being a prohibited person in possession of a firearm. You have also admitted a prior criminal history, to which I shall refer later.
3The maximum penalty for trafficking a drug of dependence is 15 years' imprisonment. That applies to a charge against each of you. The maximum for each firearm charge against you, Mr Zakariya, is 10 years' imprisonment. These maximum penalties are a reflection of how objectively seriously Parliament, on behalf of the community, regards offences of this nature.
4The charges against each of you arise out of the investigation of a wider operation of trafficking in the drug, 1,4-butanediol (“1,4-BD”). I have already sentenced six co-offenders including your two younger brothers, Mr Fatho, for various charges arising out of this investigation.
5I am going to first outline some aspects of the circumstances relevant to each of you and then turn to deal with you individually.
6In late 2017, police began investigating the drug trafficking activities of Aysar Fatho and this led to detection of other people's involvement. Between January and April 2018 Aysar Fatho and his group or syndicate, with which at the time specified in the charges each of you was associated, was found to be trafficking in large quantities of this substance, 1,4-BD, which although it has a legitimate use as a cleaning agent, is a prescribed drug of dependence when used illegally, and converts into the drug known as GHB.
7Aysar Fatho was trying to obtain a large supply of this drug to supply to others, including to another group or syndicate whom you all called, 'The Chinese', but who were in fact of Vietnamese background. That included Mr Huynh and
Mr Van, who were two of the co-offenders that I had sentenced last year. An acquaintance of Aysar Fatho, a Mr Andrea Verrina, offered a supply of 1,4-BD and, as I have said, Aysar Fatho planned to supply at least part of it to the Vietnamese group, who were supplying it to ultimate users. However, what Mr Verrina's source actually supplied was another chemical, a legal substance as it happened, and there were complaints from users that what they received was not the proper product. The Vietnamese group complained to Aysar Fatho, demanding replacement or a refund. Attempts to mix it with other chemicals again resulted in complaints, and ultimately Aysar Fatho stole eight 200 litre barrels of genuine 1,4-BD in a burglary from a legitimate chemical warehouse.
8On 28 April 2018 there was to be an exchange whereby the bad product would be returned by the Vietnamese syndicate, and replaced with genuine product from the recently stolen amount. Police had these negotiations and preparations for that exchange under surveillance, and on 28 April 2018 intervened before the exchange could occur.
9Shortly before 5 pm that day, police entered a storage yard at 52 Potter Street, Craigieburn, which was an address from which Aysar Fatho operated. At the time the police entered, you Aymon Fatho, together with your youngest brother, Andy, and with John Mansour, who was also part of your brother's group or syndicate, were loading some of the 200 litre barrels of the proper product into a trailer attached to a van and this was for the purpose of it being driven to meet the Vietnamese representatives for the product exchange and return of the bad product. All three men loading the trailer ran when the police entered the yard but were shortly afterwards caught and arrested. That included you, Aymon Fatho.
10At the storage yard police found large quantities of liquids in different sized containers, including 13 drums or barrels containing clear liquid, eight of which contained stickers labelling it 1,4-butanediol and, as I understand it, these were the eight drums stolen a couple of nights earlier by Aysar Fatho. On analysis a little over two thirds of the total liquid substance found there was true 1,4-BD, and a little under one third was another substance which was not a drug of dependence.
11The white van at the storage yard, whose trailer was being loaded with barrels, was searched, and police found in the door trim a sawn-off shotgun with two spent cartridges in the chamber. This firearm was tested and found to have your DNA, Mr Zakariya, as well as Aysar Fatho's DNA on it. On the same evening police searched the Craigieburn home address of Aysar Fatho, and found two firearms in a black case on a couch in the garage there. Mr Zakariya, your DNA was identified on each of those firearms. One was a handgun and your DNA was found on the barrel, hammer, handle or grip, and trigger. The other was a 1911 model semi-automatic handgun and your DNA was found on the slide.
12The charge against you, Mr Fatho, is based on your involvement in assisting to load barrels of the drug into the trailer to be taken to be exchanged for the previously supplied bad product. The charge against you is limited to your participation on that single occasion on 28 April 2018, and the amount of the drug of which you were aware is not quantified, so the charge is simply of trafficking - what lawyers call “trafficking simpliciter”. That is in contrast to charges against the other two men loading the trailer with you, who pleaded guilty to trafficking a commercial quantity of that drug through their involvement on that day. You also clearly had some earlier knowledge of some of these dealings, as can be traced through some telephone conversations, for example, one with your brother Aysar, which seems to have related to an earlier burglary at the 52 Potter Street storage yard and which, by implication indicates that you had some knowledge of your brother's dealings from there. However, I accept that your role as charged was relevantly limited in time and extent.
13The first charge against you, Mr Zakariya, is also of trafficking an unquantified amount (and not a commercial quantity) of the drug 1,4-BD. However, your participation was not on that day, 28 April, but for a period of a month between 18 March and 18 April, during which you had several conversations with Aysar Fatho discussing and giving him advice, including about price, as part of his dealings of which you obviously had knowledge.
14I must assess the seriousness of the offending of each of you, and I will come to aspects of your separate roles when I come to you individually. Both of you had limited roles, and your involvement was clearly less than that of some others, and especially of Aysar Fatho. As the charge against each of you is of trafficking rather than trafficking a commercial quantity, the objective seriousness is considerably less, as reflected in the maximum penalty of 15 years, compared with 25 years for trafficking a commercial quantity.
15Nevertheless, as I explained when I sentenced the other six of your co-offenders, the distribution and use of drugs of this nature in our community is well recognised as causing extensive harm to individuals and to the whole community. It impacts destructively on the health and lives of individuals and often their families, and is very costly to the community in medical and other services. It also undermines the ability of many drug users to perform constructive activities in the community, including employment. For these reasons, that is the impact on the community and individuals, the principles of general deterrence and denunciation are usually the most important sentencing factors and I consider that they are in both of your cases. General deterrence means that people who contemplate or think of undertaking any part in large scale drug trafficking or becoming involved in large scale drug trafficking activities do so in the clear knowledge that if detected they will be sentenced to stern sentences and usually terms of imprisonment. Further, because of the harm done to the community through the trafficking of drugs of this type, protection of the community is also a relevant purpose of a sentence for such a charge.
16Although neither of you is charged with trafficking a commercial quantity of this drug, the circumstances indicate that each of you knew that the activities to which you gave assistance involved considerably more than what are often referred to as “street level” deals, such as trafficking in amounts for one or only a few doses to be used.
17You, Aymon Fatho, were loading 200 litre barrels. You, Evan Zakariya, discussed a price of $25,000. While neither of you is alleged to have planned or organised this trafficking, and your roles respectively, as I have said, were quite limited, you both knew and participated in trafficking well above the lowest levels of those sometimes seen for this charge of trafficking, dealing with only very small amounts for one or two people to consume. I will discuss those matters further in relation to your respective roles when I deal with you separately.
18You have in common that you have both pleaded guilty to these charges against you. That entitles you to some leniency for saving the community the time and cost of a disputed trial, and inconvenience to witnesses. The pleas are also an acknowledgment of responsibility for your offending. Neither of you had yet pleaded guilty to any charges when the plea hearings for the other six men involved came before me last year, nor when I sentenced them. In fact a trial was listed for both of you in 21 October last year. Mr Zakariya, you pleaded guilty about three weeks before that trial was to start. You,
Mr Fatho, only just before. I accept that neither of you had pleaded guilty earlier while the charges were more serious. I will tell you after I have imposed your sentences what they would have been had you not ultimately pleaded guilty but been found guilty of these charges after a trial.
19I will now turn to each of you individually and I start with you, Aymon Fatho. I have already described your role as limited to assisting to load the barrels onto a trailer on 28 April, although you had some knowledge of your brother, Aysar, storing drugs at that storage yard, reflected in an intercepted conversation with him a week or so earlier when there had been a burglary at that yard. I am told that you were delivering garden waste arising from your gardening business, to bins at that storage yard, had been doing so previously, and on 28 April that is the purpose of you actually attending there. I am told that it was only after arrival that you were asked to help load the barrels. Your plea of guilty reflects that you were aware that they contained drugs but not of the quantity. The prosecution accepts that your role was limited to that occasion, and that your role should be considered as “a mere pair of hands”; that is physically assisting in the loading, meaning that your role is at a low level of blame comparatively for an offence of this type.
20You were arrested on 28 April 2018 and remanded in custody until granted bail on 18 September 2018. You had served 144 days in custody. That bail required a surety which was given by your uncle, but he sought to withdraw that in mid-2019, and your bail was revoked at that stage, meaning that you served further time on remand. You applied for variation of bail to reduce the surety, which was granted.
21Since then you have been bailed on conditions of living with your mother, and being prevented from coming into contact with co-offenders. I am told that with the two periods combined, the total pre-sentence detention for you is 185 days or just over six months.
22I have already said that your plea of guilty entitles you to some leniency and said the reasons for it. You were to face trial on a more serious charge involving a commercial quantity of a drug of dependence, and that explains why you did not plead guilty much earlier. However, I have also read the transcript of what occurred on the day you were to plead guilty, and you showed considerable reluctance to do so. The matter was stood down. Your then counsel talked to you and you did later that day plead guilty. I do not regard the plea of guilty by you as fulsome or willing acknowledgment of guilt by you, nor of true remorse. Nevertheless, your plea of guilty did have the utilitarian value of saving the community the time and cost of a disputed trial, and you have ultimately formally accepted responsibility for the offending. I have taken those matters as still entitling you to some leniency.
23I turn now to your personal circumstances. Are you still awake, Mr Fatho? I had better just pause.
24MS LACY: Could I approach him, Your Honour?
25HER HONOUR: Yes, you could.
26MS LACY: Your Honour, he instructs he is not feeling very well. He would like some water but otherwise he thinks he can proceed.
27HER HONOUR: I can see in fact a cup in front of him. Is that empty?
28MS LACY: It is empty, yes.
29HER HONOUR: Well, that can certainly be refilled. I can defer his sentencing if he is not up to following. It is important that he follow what I have to say.
30MS LACY: I appreciate that, Your Honour.
31HER HONOUR: Do you want - - -
32MS LACY: If I could - could I have one more moment with him?
33HER HONOUR: Yes, you can.
34MS LACY: Your Honour, we would be grateful if we could proceed.
35HER HONOUR: Proceed.
36MS LACY: And he believes that he can get through it, yes.
37HER HONOUR: Well, I do have Mr Zakariya to sentence and there are time limits on the link to the prison where he is.
38MS LACY: Yes.
39HER HONOUR: I could proceed with his sentence and stand your client's aspect down for a short while. I would normally have them hearing what is said about each other but I have really already covered - - -
40MS LACY: Most of it.
41HER HONOUR: Most of that aspect and I could stand his matter down, extend his bail for him to leave the courtroom and for a period of time and have him return then.
42MS LACY: Your Honour, I would have you just proceed as you planned.
43HER HONOUR: Proceed?
44MS LACY: Yes.
45HER HONOUR: All right. Was your client following what I said about giving some leniency for the plea of guilty although I had hesitation thinking he had true remorse?
46MS LACY: Your Honour, I have not - I did not check with him what he had heard and not heard but I have written detailed notes and I will go through it with him afterwards.
47HER HONOUR: All right. I at first thought, because of the manner in which he has been sitting throughout, that it was just his body language to the court, but then I realised that his eyes were closed and he might have actually tuned out and he took a little while to be roused by one of the officers there.
48MS LACY: Yes, but I will go through it with him in detail afterwards and I would ask Your Honour to proceed.
49HER HONOUR: All right. I turn now, Mr Fatho, to your personal circumstances. You are now aged 28 and were 26 at the time of this offending. As I have said, your two younger brothers were involved in this offending, and the older of them, Aysar Fatho, then only 23 years old, was principal of a drug syndicate. You also have two sisters and they, with your mother, were present in court to support you on previous hearings, as was your new partner in March.
50You were born in Iraq, where your parents became increasingly insecure about the family's future there. Your father was mandatorily required to serve in the army, and the family, being Catholic, was subject to growing insecurity as part of a religious minority at serious risk of persecution under the Saddam Hussein regime. I am told that in about 1999, your father took the family, (this was before your sisters were born) to live in Turkey, where you stayed about five months, and then after some failed attempts, escaped by foot to Greece. The family was about three years in Greece, living with a relative there in very cramped accommodation, but you have described the time there as good. One of your sisters was born during that period.
51Your family was eventually granted refugee status, and moved to Australia in 2002. Your father worked as a stonemason, although I gather he has more recently been in poor health. You and most of the members of your family have since become Australian citizens.
52You were aged about 10 when you arrived in Australia. I accept that the disruption and displacement that you experienced in your childhood, and in your schooling, would have had significant impact on you. You started learning English for the first time on arrival in Australia, but I am told that you struggled at school and left at the start of Year 10.
53You undertook a pre-apprenticeship course in cabinetmaking, and obtained an apprenticeship, but that ceased when the business for which you were working collapsed after a year or so and you could not proceed. You then worked in various jobs - I am told as a baker, bricklayer, labourer and in landscaping. I am told that was until about mid-2017, when you decided to try to set up a gardening business of your own. I am told that you were using your brother Aysar's storage yard, as a means of disposing of garden waste, and was shown a photo from a neighbouring property showing your small gardening ute turning into those premises a few days before the date of the charge against you.
54I am told that you had been in a prior romantic relationship for about four years, which ended in mid-2017, and which left you in a state of instability. You have apparently formed a new relationship, and were supported in court and a reference provided from your new partner, which I have read. I am told that she is not involved with drugs, and that should be a good and stabilising influence on you.
55You have admitted a prior criminal history involving six court appearances between 2011 and October 2015. Your counsel submits that they are not relevant. You told psychologist, Dr Cunningham, that you did not adjust well to life in Australia and engaged in reckless behaviour.

56Your prior court appearances commenced with dishonesty offences relating to motor vehicles at age 19, and include a range of driving offences and some of dishonesty. The only drug related charge is possession of cannabis in 2011, which I accept is a considerably less serious and different charge from the one that you are now facing. For that you were fined without conviction. While all of this criminal record is consistent with an unsettled youth, and none is for trafficking drugs, it cannot be said that you had led a law abiding life until this time, and you apparently admit to reckless behaviour. Further, you apparently have a history of drug abuse, starting with cannabis from the age of 15 or 16, and then using methylamphetamine from the age of 18, and soon afterwards it is said to have become an everyday habit. While you have never been charged in relation to that drug-taking, it is clear that you had been obtaining and using illegal drugs for many years before you became involved in your brother's trafficking activities.
57I am also told that there was a further instance of driving whilst suspended and speeding which did not come before a court until January 2019, where you were placed on a Community Correction Order. When your bail was revoked when your uncle withdrew the surety, the Community Correction Order was interrupted, and when you were before me for the plea hearing you were said to have a little time still to complete of the community work component. I was told about two days' work. It may be that that has been completed in the meantime, but with what I know of the shutdown of most if not all community work arrangements during the COVID-19 situation as it has developed since your plea hearing, I am not sure whether that has been possible. Further, in April 2019 you were dealt with for breach of a 2015 Community Correction Order and resentenced on that to a fine.
58I have read two reports by psychologist, Dr Aaron Cunningham, the first to support your application for bail in September 2018, and another last November in preparation for your plea hearing. Dr Cunningham set out your personal history as you told it to him. At the first assessment he was asked to assess whether you suffer intellectual impairment. On testing, he found your performance not consistent with an intellectual disability. You described difficulty sleeping due to your thoughts racing, waking up at the slightest noise whilst in gaol, and said you experience anxiety and depression.
Dr Cunningham’s opinion was that you did not present with a mental illness, and that your symptoms of depression and anxiety reflected instability caused by drug use and your relationship breakdown. You had described having difficulty adjusting to living in Australia and using drugs, engaging with drug using peers and, as I have already said, engaging in reckless and impulsive behaviour, and your drug use escalating after your earlier partner left.
59He thought by the time he assessed you in September 2018 that you showed insight into your two main risk factors, which were drug use and negative peers. When he reassessed you last November, you told him you were refraining from drug use but did not like the manner of urine screens being observed. You told him you do not want to cause your family any extra harm after what they suffered in Iraq and their escape to Australia. It seems that you and your two brothers have caused a great deal of concern to your parents. On the second assessment Dr Cunningham found symptoms of depression connected to your court matters, but not that would qualify as a diagnosis for a depressive disorder. He noted that you had maintained stability in the community while on bail, and were abstaining from drug use and completing community work.
60While on remand you completed some programs to address drug and alcohol abuse, and also some occupational certificates. While on bail you have been living at your parents' home, and trying to rebuild the gardening business, which you had borrowed money to buy in the six to seven months before your arrest for this offending, most of which I understand was lost while you were in prison. You have apparently been working to re-establish that business, and by telling me that is what caused you to be late to court today I assume that business is continuing. You have formed a new relationship with a partner who seems likely to be a supportive and stabilising influence on you and who will not put you back into a drug taking peer group.
61These are positive signs towards your rehabilitation, and I accept that your time in custody on remand was a salutary lesson, but ultimately it will be up to you to stay clear of old peer groups, and to stay clear of drugs of all types – using them or trafficking in them. At your age there is every opportunity for you to establish a stable and responsible life for yourself and I assess your rehabilitation prospects as reasonable although by no means assured.
62I was shown sentencing statistics from Magistrates' Court sentences for the charge you face, and the prosecution agreed that they are an appropriate range compared with statistics for higher courts for this charge. Whilst a considerable proportion attract imprisonment, the majority did not attract more than six to eight months' imprisonment. I take into account that they are matters of a seriousness suitable for the Magistrates' Court. I have already commented on my considering your involvement to be well above that of street dealing in one or two amounts for one or two people.
63It is accepted by both sides that general deterrence, which I have already explained, to deter other people from this type of offending, and community denunciation, as well as an element of protection of the public from drug trafficking, are the most important sentencing purposes in your case, with some role for specific deterrence and, as your counsel submits, also some role for rehabilitation.
64The co-offenders I have previously sentenced were mainly sentenced for trafficking offences involving a commercial quantity, including your youngest brother, and Mansour, who although involved in earlier discussions were charged only in respect of their participation on 28 April when you and they were loading the barrels on to the trailer. However, each of them had been involved in relevant conversations earlier that day, and by their pleas of guilty each acknowledged that they knew that there was more than 2 kilos of this substance being loaded, that being the threshold for a commercial quantity.
65Given the limited role and lesser charge which the prosecution accepts applies to your involvement, I do not consider that parity has a role to play except for the differences. In other words, I do not consider that the difference between their sentences and yours would cause a justified sense of unfairness in all the circumstances.
66I shall leave the actual sentence I intend to impose on you until I have dealt with Mr Zakariya's circumstances, and then I will impose sentence on each of you.
67I turn now to you, Mr Zakariya. I have described your role in these offences and I must assess the seriousness of it, in relation to both the trafficking of drugs charge, and the possession of firearms charges.
68Your role in the trafficking charge is limited, but in a different way from how the role of Mr Aymon Fatho is limited. Yours relates to a period of a month,
18 March to 18 April 2018, so considerably longer involvement than his, but also some 10 days prior to the culmination of the dealings and the intended exchange of a large amount of the substance - indeed, prior to the barrels of substance being stolen by Aysar Fatho.
69There is nothing to indicate that you ever had hands-on involvement in the way of carrying or conveying any drugs.
70SECURITY OFFICER: They cannot hear.
71HER HONOUR: Something has dropped out, the time is not up. So - yes - I understand, I am just trying to get it fixed. All right, have we lost - we have not lost Mr Zakariya, so we do not interfere with the link to him. Can you hear now?
72MS KADDECHE: It is on mute.
73HER HONOUR: It is on mute.
74OFFENDER ZAKARIYA: Now we hear.
75MS KADDECHE: Now we can hear.
76HER HONOUR: Now you can hear, good. Thank you. We did not lose
Mr Zakariya. Ms Oraha, can you hear?
77MS ORAHA: Now I can hear.
78HER HONOUR: All right, what point was I up to when it dropped out?
79MS KADDECHE: Ten days before the exchange, telephone intercepts.
80HER HONOUR: All right, thank you. I have also just had a note from my associate, that she has obtained an extension of time for the link, which is good.
81MS KADDECHE: As Your Honour pleases.
82HER HONOUR: All right. I distinguished that Mr Zakariya's involvement was for a longer period than Aymon Fatho's. It was a month, but as charged, it ended some 10 days before the matters culminating in the exchange on 28 April. Mr Zakariya, there is nothing to indicate that you ever had hands on involvement in the way of carrying or conveying any drugs, but input such as advice or directions makes you guilty of this charge, as you have acknowledged by pleading guilty to this charge.
83Your involvement was a series of conversations with Aysar Fatho, the principal organiser of the operation, to assist him with his trafficking arrangements. From the summary, there are six conversations set out, and another mentioned, mostly discussing price, which you talk of as $25,000, and you also encourage and specify the need to obtain money before the supply as later there will be none. You urged that the price be higher. There is an implication from that, in my view, that you had some say in setting the price beyond mere advice. Aysar Fatho was wanting your approval of price, and of options if it was not agreed with the other side, with the Vietnamese syndicate, and he seems to accept your input.
84Although I limit consideration of the seriousness of your offending to the period charged, I note that you did have ongoing involvement or knowledge of the further offending of Aysar Fatho, in that you discussed with him what vehicle was to be used, and whether the driver was to be given a weapon, and you also are told by him, that is Aysar Fatho, of a burglary at his 52 Potter Street storage yard. He asked you to keep your ears on the street. You were also observed at the 52 Potter Street premises on 21 April 2018.
85As I have said, these aspects of involvement are not the subject of Charge 1, but they do indicate that your knowledge of what was to proceed had not ended on 18 April. You were not, however, present or involved on 28 April on the day when the recently stolen True 1,4-BD was being loaded onto a trailer to be transferred for exchange.
86There is no evidence that you were involved to the extent of planning or being likely to profit substantially from the proceeds of these arrangements. Your role I take to have been knowingly assisting Aysar Fatho's arrangements, as I have said, advising on price, and when to insist money be paid, and this was input to the organiser of the arrangements. Your role was described in original written submissions on your behalf, as being that of a trusted lieutenant. That description was described by your present counsel as putting your role too high. Is there a problem Mr Fatho?
87OFFENDER FATHO: No.
88HER HONOUR: No, all right. I am talking to Mr Zakariya at the moment. Mr Zakariya, as you are not charged with involvement after 18 April, and not on 28 April when the matter was coming to fruition in an exchange, I think the description of your role as a lieutenant is putting it too high. However, as I said earlier, this was not the lowest possible example of trafficking in a drug of dependence, and in my view, is well above the most basic trafficking at street level that I have described.
89As for the three charges of being a prohibited person in possession of a firearm, you were not found to be physically in possession of any of them, and your plea is an acceptance that you had previously handled them, that is, three firearms that were found by police on 28 April 2018. You had apparently handled them in a manner conveying your DNA onto them. Two of those firearms were found in a box on a couch at the garage at Aysar Fatho's home. I do not accept that you had merely touched them to move them, because of where your DNA was found, especially on one including on the trigger and in several other parts of it, but I accept there is nothing to indicate that you had ever used either of those firearms for any purpose.
90The third charge relates to a sawn-off shotgun with two spent cartridges in the chamber, found by police in the door trim of the white van at the 52 Potter Street storage yard. That had both yours and Aysar Fatho's DNA on it. I am not in a position to know at what stage or in what circumstances your DNA came onto it. I note from the content of an intercepted phone call between you and Aysar Fatho on 21 April, that is referred to in paragraph 28 of the prosecution opening, that you asked Aysar Fatho, 'Do we give him weapon and take the car?' That is possibly consistent with you having had some contact with a weapon that was found in the vehicle, but I am not in a position to decide that that is precisely what was being referred to in that conversation.
91You were not found in that vehicle, and there is nothing to indicate that you did anything on that day in relation to the vehicle or the weapon in it. There is also nothing to indicate that at any stage you loaded that weapon or fired it, although, there were spent cartridges found in it.
92I regard each of these instances of the offence of being a prohibited person in possession of a firearm as being at a relatively low level of seriousness for offences of this nature, because you were not found in actual physical possession of any of these weapons, nor were they under your control at the time they were found, and it is impossible to establish how much earlier you had touched them or come in contact with them in a way that conveyed your DNA onto them. It is argued on your behalf that your pleas of guilty are of more value in this regard. It is clear that the DNA found on each of them was the only evidence connecting you with these firearms, although, as I have said, an intercepted telephone call is possible support for you having knowledge that a firearm was to be provided with the vehicle.
93However, each charge itself, that is of a prohibited person being in possession of a firearm, is a serious offence, as reflected in the maximum penalty of
10 years' imprisonment. The offence itself incorporates that the person involved has a relevant prior criminal history which makes them a prohibited person, and that aspect is not to be punished twice. Further, however, you had at least one previous charge for this very offence in 2019, as well as a prior instance first dealt with in 2015 for discharging a firearm in a public place and a charge of altering one. You were ultimately re-sentenced to imprisonment for those 2015 offences, for contravening the CCO that was initially imposed for them.
94I shall deal with your other prior criminal history further, but you obviously had previous association with firearms, which is consistent with you having handled those found at Aysar Fatho's garage. Your counsel correctly submits that mention of you having a different firearm in your possession when arrested on 4 July 2018 is not relevant to the current offending.
95The prior offences relating to firearms do, in my view, require that specific deterrence be a significant sentencing purpose on these charges, that is to discourage you from further firearms offences. General deterrence and protection of the public are also relevant on these charges.

96I do not find that your possession of these weapons was in relation to the likely commission of further offending, which would make it more serious: R v Berichon.[1] The fact I cannot find that you had possession in relation to likely commission of further offending is because whatever the purpose of one of those firearms being in the vehicle at the storage yard on the relevant date, you were not present and, indeed, the charge against you for trafficking a drug of dependence does not extend up to that date that the firearm was found in that vehicle, and I have no idea when it was that you came into contact with that firearm. The other two weapons were also only found on 28 April, a time beyond the period for which you were charged with trafficking. Therefore I regard these offences as at a relevantly low level of seriousness and personal culpability, and not connected with the commission of other offending.
[1]R v Berichon [2013] VSCA 319, at [26]
97Nevertheless protection of the public is most important when it comes to possession by prohibited persons of firearms. General deterrence and specific deterrence are also important sentencing purposes in your circumstances on these firearms charges.
98I have already mentioned that you have pleaded guilty to these charges. That was about three weeks before a trial was to begin. I take that timing to relate to there having been more serious charges against you that were not pursued. Your plea of guilty entitles you to some leniency for saving the community the time and cost of a disputed trial, and also stands as an acknowledgment of your offending. In your case I am prepared to infer some degree of remorse from it also, although I suspect that is it much more in the nature of regret for the situation in which you find yourself, and for the concern that you know it has given to your family.
99I turn now to your personal circumstances. You are now age 31. You were born in Bagdad, the youngest of six children. As your family was of both ethnic and religious minority, that is they were Assyrians living in Iraq, and Chaldean Christians, and that country was subject to widespread conflict generally, your family's life was badly impacted by deprivation and exposure to violence. You have recounted memories of witnessing bombings and shootings in the neighbourhood where you grew up, exposure no one, let alone any child, should experience.
100Eventually your parents moved the family to Turkey in 2004, where you stayed in a refugee camp, and then were accepted as refugees into Australia. You arrived in Australia aged about 17, speaking no English, and apparently you found great difficulty learning English, so that you are still only partly literate in it. I am told that you speak fluent Arabic but are not literate in that language.
101I accept that through exposure to violent and threatening conditions in Iraq, removal in your mid-teens to Turkey, living in a refugee camp there and then arriving in Australia - - -
102MS LACY: Your Honour - - -
103HER HONOUR: It has dropped out again.
104MS LACY: Yes.
105HER HONOUR: Let us see - yes. Well, all right. I have got Mr Zakariya back. Can you hear me? No, he is shaking his head too. I have to leave it to those driving the equipment.
106OFFENDER ZAKARIYA: Yes, now.
107MS KADDECHE: We are back.
108HER HONOUR: We are back? You can hear, Mr Zakariya?
109OFFENDER ZAKARIYA: Yes, I can hear, Your Honour.
110HER HONOUR: Yes. Ms Oraha?
111MS ORAHA: Yes, Your Honour.
112HER HONOUR: All right, and Ms Kaddeche.

113MS KADDECHE: Yes, Your Honour.
114HER HONOUR: All right. I had been speaking of Mr Zakariya's background coming from Iraq and arriving in Australia. Had you heard that part?
115MS KADDECHE: Yes, we were up to Your Honour accepts that exposure and removal from - - -
116HER HONOUR: All right, I will start again at that portion, that sentence.
117I accept that through exposure to violent and threatening conditions in Iraq, removal in your mid-teens to Turkey, living in a refugee camp there, and then arriving in Australia, your youth and education were significantly disrupted. I am told that you did not gain much from initial English lessons, and that you dropped out of a further course in English at Broadmeadows TAFE, which you had attempted. I am told you then worked with two of your brothers in their cleaning businesses, usually from late afternoon until the early morning.
118However, you became involved using illegal drugs. it is submitted that you were naïve about drugs before you came to Australia and in your early years here. You told Mr McKinnon that cannabis was not known in Iraq. It might not have been known by that name, but I find it hard to believe that either in Iraq or Turkey or on arrival here, you had not heard of this substance and known of it and its use in other forms, such as called “hash” or “hasheesh”.
119In any event, I am told that when you were aged about 23 or 24 you were introduced to methylamphetamine, or “ice”. I am told that was introduced to you by a friend, and that that was at a vulnerable time in your life when you had broken up with a girlfriend, and that you soon became addicted to that drug. I am told that by the time of your arrest for the current charges, that is when you were aged 29, you were using that drug heavily, daily, along with GHB, which I note relates to the 1,4-BD. It is said that you experienced bouts of psychosis, which appear to have been at least contributed to by your drug abuse. You also dabbled in using Xanax, ecstasy, cocaine and cannabis. None of those - well, the Xanax, of course, not being in prescribed amounts - but none of those, and particularly not a cocktail or mixture of them, could have helped your ability to make sound judgments. The use of drugs, however, is no excuse for offending. It does put into some context that you were probably involved in the offending for which I sentence you to earn drugs or some money or favours to acquire them for your own use. I note that that was said to be the purpose of most of the co-offenders involved, except Mr Verrina, who wanted money but not specifically for drugs.
120I do note that Mr Fatho seems to have nodded off again. I am not dealing with him at the moment so I will leave him be.
121Coming back to you, Mr Zakariya, you have admitted a prior criminal history which appears to have commenced six years earlier when you would have been aged 22 or 23. Initially it involved driving offences. Whilst those offences do you no credit, and it would appear that in September 2014 you were dealt with for contravening a suspended sentence for driving whilst suspended, the result of which was that you served a term of one month in prison, it was at that stage that you were also convicted of using a loaded firearm in a populous place, and altering a firearm to a different category. At the time a further CCO was imposed with conditions for rehabilitation and treatment, including drug and alcohol treatment. At the same time you were dealt with for some offences of dishonesty and possessing ecstasy and amphetamine. There was a point at which you were sentenced to an aggregate seven months' imprisonment for handling stolen goods, prohibited person possessing a firearm, I think it was 2017, and possessing cartridge ammunition without a licence or permit. On the same date you were sentenced for contravening an earlier CCO with the CCO varied by extension of its duration.
122In April 2017, you were sentenced to four months' imprisonment for contravening that CCO again, and unlicensed driving. Two months later you were sentenced for possessing MDMA and methylamphetamine as well as dealing with suspected proceeds of crime and contravening a condition of bail. Then in September 2017 you were sentenced to a total of six months' imprisonment for dishonesty offences and being a prohibited person possessing firearms and possessing cartridge ammunition. I am not quite clear whether that was a second prior offence for being a prohibited person possessing firearms or whether it was a repeat of the earlier one.
123Your criminal record does you no credit and reflects what I have been told of you becoming involved with drug abuse and general offending. I accept that that may well have been contributed to by a poor choice of peer group, but you were clearly not taking control of your life. I am told that during periods when you were not in prison, you returned to work in your brothers’ cleaning businesses, and that your family throughout all this period has continued to support you. Indeed, I am told that you are the only member of your family who has had involvement with criminal offending. That includes four older siblings living in Melbourne, your parents, who live here, and one brother who lives in Canada. Although your siblings, your brothers and sisters, were all older than you on leaving Iraq or arriving in Australia, it would seem that they all managed to adjust and build stable and productive lives for themselves.
124I am told that your family here all remain close and, indeed, your siblings live in the same suburb as your parents. Your mother and one sister have been in court on each occasion your matter has been before me. Your father, who I noticed and have read, is now wheelchair bound due to a stroke, and also a brother, were here with your mother and sister on the plea hearing earlier this week. I accept that having such strong family support is a positive factor for your chances to rehabilitate in the community on your release from prison. I cannot help but note, however, that they have been strong support on each release of you from prison in the past.
125
I have read a psychological report on you by Mr Ian McKinnon, dated

19 November 2019. In it he sets out the personal and family history that you related to him, although I note that he understood you were pleading to different charges, three of them more serious. There are also some other factual errors including misunderstanding of your family's ethnic background. He mentions an intimate relationship which was said to have started in the period you were in prison on remand. At the hearing on Monday I was told by your counsel that she did not understand that to be a continuing relationship. Indeed, since then I have been told that that was the person who was, and is, a former partner who is the subject protected by an intervention order against you. I take it that that will not be an ongoing relationship on your release from prison, but that you will return to live, at least initially, with your parents.
126Mr McKinnon outlines your history. As I have said, he notes you being very naïve about drugs when you first came to Australia. I repeat I have some doubt about your not having known of cannabis. It may well be that you had not known much about “ice” or crystal methamphetamine. You say you became involved with ice introduced by a friend when aged 23 or 24, having broken up with a girlfriend, and also that you started using drugs, and gambling heavily at Crown Casino. You apparently kept working but would lose all of your money gambling. Later you tried other drugs and sometimes alcohol.
127Mr McKinnon records that you ended up in a psychosis, staying up for 10 days, hearing voices and getting paranoid, and that you then tried to get a bed in a Shepparton rehabilitation program but a court knocked you back. I am not sure of the timing of that, and whether that was in an attempt to get you bail on the current matters, as occurred with some of your co-offenders, or whether it relates to some other earlier offending or other appearance before a court.
128Mr McKinnon's opinion was that you did not appear to be suffering with symptoms that met the clinical criteria for any major diagnosable psychological disorder. Being in prison he noted that you appeared to have largely overcome the polysubstance abuse disorder that you had previously suffered. However, he noted that on your eventual release from prison you will be at risk of relapsing into illicit substance abuse. He did not think that you have an inherently antisocial or criminal disposition, and took into account your long history of legitimate employment and the ongoing support of stable family, whilst noting that you have a significant prior criminal history. His opinion was that you are a person easily led, who goes along with others to gain acceptance and status. He noted that your offending has deprived your parents of support at a time when they are both unwell and aging, and that that has been of regret and concern to you. You have told him that you regret the concern you have put them through and do not intend to hang out with people of that type any more.
129Your counsel does not rely on Mr McKinnon's opinion that involves purported retrospective diagnosis of a depressed mood disorder at the time of the offences. A polysubstance dependence disorder cannot be mitigatory in such a case. I accept that you were affected generally by drugs at the time but, they were taken voluntarily, even if in the context of peer group acceptance, and apparently often mixed, making them likely to cause more disturbance of thoughts.
130I note that since being in prison and despite poor literacy in English, you have managed to complete a considerable number of programs and courses. I was provided with a list that includes some courses you have done during previous periods of imprisonment, but I accept that since you were remanded on these matters in mid-2018, you have completed a number of vocational certificates, several relating to cleaning, in which industry you have previously worked, as do other members of your family, and it would appear that you may well have employment available on your release and intend to return to that field of work. You have also completed a 12 hour substance use program, as well as a 12 hour healthy lifestyle plan program.
131You have apparently not been prescribed any medication whilst on remand, nor are you receiving any medical or psychological treatment there, although it has been mentioned that support on your release might be of assistance to help you remain abstinent from drugs. You were arrested on 4th of - we have dropped out again I think, or not? No?
132MS KADDECHE: No, Your Honour.
133HER HONOUR: Is - can the interpreter, Ms Oraha, still hear? All right, sorry your square became highlighted on my screen. I thought maybe you had dropped out. All right.
134Mr Zakariya, you were arrested on 4 July 2018 for other matters, and subsequently charged for your involvement with the present matters. You have remained in custody ever since, that being approximately 22 months. Of that period 180 days, or almost six months, was spent serving a sentence subsequently imposed for offending that you had committed before the current matters. I am told that was theft of a car and resisting an emergency worker. That leaves 494 days, up to but not including today, which are available as pre-sentence detention for the charges with which I am dealing. As I understand the situation, you have also been remanded throughout this same period in respect of offences for which you were arrested on 4 July 2018. I am told that those, or at least some of them, are currently listed for a sentence indication on 15 May, which is the end of next week and, if accepted, are likely to resolve as one charge each of theft of a motor vehicle, possession of a drug of dependence and two charges of possessing firearms. I assume the latter relate to a small silver revolver allegedly found in your possession at the time of your arrest.
135Although the 180 day period cannot count as pre-sentence detention, it is relevant for me to take into account the totality of the time you have spent in custody overall, while also considering the totality of offending. Your counsel submits that as this will have been by far your longest period in prison, and also because you seem to have used it constructively, to impose a sentence longer than the time you have already served in total is likely to be crushing.
136When an adjournment was sought of your plea hearing in March, I was told that your visa status might be at risk, depending on your sentence. I am not permitted to speculate as to possible administrative decision under the federal Migration Act, in relation to your situation. As I understand it, you have permanent residency, so you are not subject to automatic action, but you are subject to a general discretion as to whether to review your immigration status. As I have said, I cannot speculate on what might occur in that regard so cannot take it specifically into account.
137I am also now to sentence you at a time when the whole Victorian community, indeed the whole world, is experiencing great uncertainty and change of conditions as a result of the COVID-19 pandemic and the restrictions imposed to protect the community. I accept that as a prisoner, the last six to eight weeks in custody are likely to have been more onerous for you to experience, due both to concern as to whether the virus would enter and likely spread quickly through the prison system or the prison in which you are kept, which thankfully it does not so far seem to have done, and also due to restrictions on prisoners including not being able to receive visits from your family, whom I accept have otherwise visited you regularly. Your movements will also have been more restricted, and there will have been few, if any, programs in which you can engage in this latest period.
138When your case first came before me no one could have foreseen these unusual events unfolding, but I take them into account as they have arisen in the meantime, they have been experienced by you, and to the extent I have said they will have made your experience of imprisonment over the last six to eight weeks more onerous. I make some allowance for that.
139
I next turn to the issue of parity. That is comparison of sentences with co-offenders. As there were seven other men charged for various aspects of the circumstances giving rise to the charges against you, I must consider whether a sentence imposed on you might appear unfair in comparison with those imposed on others. In this case I do not regard any one of the others as in exactly comparable circumstances to yours, because of the differences in the charges for which you are to be sentenced as a whole, as well as your individual involvement and your particular personal and criminal history. It was submitted by your counsel that I should regard the circumstances of

Mr Verrina as the most comparable to yours. I disagree that there is much comparison between you and Mr Verrina in relation to the drug trafficking charge, as although his also was not for trafficking in a commercial quantity, nor conspiracy to traffic a commercial quantity, his role was distinctly different. His role lasted for longer than yours, was more directly engaging in the supply chain for the drug, while he endeavoured to deceive Aysar Fatho and his associates, including you, into believing that he was supplying the true drug 1,4-butanediol, whereas in fact he was supplying a lawful chemical but trying to make money from the deception.
140Mr Verrina did face a charge for possession of a firearm that was found to be hidden in his garage in a washer, and he claimed he had never used it himself and was minding it for someone else. For that charge I imposed a term of two months' imprisonment. Otherwise his personal circumstances were also very different from yours, he being older, also of a background of serious trauma in his home country before coming to Australia, but also he had a very vulnerable dependent wife and young child.
141In relation to firearms charges, the same three firearms as are the subject of charges against you, were the subject of the same charges against Aysar Fatho. Two were found on a couch in the garage of his home in a box, so more obviously in his direct control or possession, and the other in a vehicle that he was seen to drive to his storage yard that day, so more closely associated with his possession, although he did not acknowledge that they were his. The sentence imposed on him on those three charges was an aggregate of two years' imprisonment, which the Court of Appeal, I note, did not overturn nor comment upon when Aysar Fatho's overall sentence was before it on appeal.
142In relation to the charge of trafficking in the drug, the allegation against you is that you were involved for a period of a month but not on the day when matters were coming to a head to exchange the product with another syndicate.
143Mr Aymon Fatho being sentenced with you today, is the only other person against whom the charge was trafficking simpliciter, that is not in a commercial quantity, and his involvement on that charge was limited, but in a different way, that is to the single date, in loading the trailer, and he is regarded by the prosecution as a mere pair of hands.
144Taking all of these matters into account, as I have said, I regard general and specific deterrence as significant sentencing purposes, as well as community denunciation of involvement with drug trafficking, and with the firearm possession and for those charges protection of the public is also important.
145I find, and it was conceded on your behalf, that sentences involving some imprisonment are warranted. I was most recently urged to impose no further imprisonment than a straight sentence or a total effective sentence involving time served.
146As I have said, there is a total of pre-sentence detention in addition to the 180 days that you served on other charges, which amounts to a further period of more than 16 months - 494 days. I have considered the appropriate structure of a sentence for you. I consider it in the community's interests and, indeed, in your own interests, that there be some supervision and support for you to help you keep to your stated resolution not to resume drug taking nor mixing with the old peer group on your release from prison. I had you assessed for a Community Correction Order, and although you were assessed on the assessment tool as being at high risk of reoffending, you were assessed as suitable for a further opportunity on a community correction order. I do intend to impose a CCO to follow imprisonment, to provide that supervision and hopefully assistance for you to rebuild your life on a stable basis, and not revert to drug abuse on your release.
147I now come to sentence each of you. I will start with Mr Aymon Fatho. Would you stand, please, Mr Fatho?
148Aymon Fatho, on the charge of trafficking in a drug of dependence, you are convicted and sentenced to six months' imprisonment. I declare 185 days of pre-sentence detention reckoned served. That means that you will not need to serve any more time in prison.
149I state, this is for the purposes of s.6AAA of the Sentencing Act, that if you had not pleaded guilty, but had been found guilty of this charge after a trial, and all other circumstances had been the same, I would have imposed a sentence of eight months' imprisonment.

150I understand there are no ancillary orders?
151MS SINGH: No, Your Honour.
152HER HONOUR: All right, you can take a seat for a moment, Mr Fatho. I will have you remain there just while I sentence Mr Zakariya.
153Mr Zakariya, I am not asking you to stand because you are sitting in front of a video screen.
154OFFENDER ZAKARIYA: Yes.
155HER HONOUR: Evan Zakariya, on each of the charges you are convicted and sentenced as follows. Now, do you want this through an interpreter?
156OFFENDER ZAKARIYA: I can understand now.
157HER HONOUR: You can understand?
158OFFENDER ZAKARIYA: Yeah. Until I ask (indistinct) if I can't - - -
159HER HONOUR: All right. I will carry on and I want you to interrupt if you do not understand what I am saying.
160OFFENDER ZAKARIYA: Okay.
161HER HONOUR: On Charge 1 of trafficking a drug of dependence, you are sentenced to six months' imprisonment to be followed by a community correction order to last for 10 months. I will explain its conditions and terms shortly.
162On charges 2, 3 and 4, each of those being a prohibited person in possession of a firearm, I impose an aggregate term of imprisonment of eight months. That aggregate term will be the base sentence. I direct that three months of the sentence on Charge 1 be served cumulatively on the sentence on charges 2, 3 and 4, making a total effective sentence of 11 months' imprisonment, and that will be followed by a CCO that will last for 10 months.
163I declare 335 days pre-sentence detention as reckoned served. On my calculation that comfortably accounts for the 11 months total sentence of imprisonment I have imposed. I intend that to mean that as of today you have completed the imprisonment portion of this sentence. The Community Correction Order starts on the day that you are in fact released from prison, which if you are, as I believe you are, currently remanded on other matters, will not be today.
164I am aware that I am not declaring the total of the pre-sentence detention which is available. There is no need for me to do so. I have overall taken into account the total of some 22 months that Mr Zakariya has been in custody as a question of totality going to what is an appropriate sentence I should impose on the various charges that I am dealing with.
165
I come to the Community Correction Order. You are looking a little puzzled,

Mr Zakariya. Do you want any of that explained through the interpreter?
166OFFENDER ZAKARIYA: Um I know about the correction order, what you said but you can - - -
167HER HONOUR: All right. What I will do is explain the correction order.
168OFFENDER ZAKARIYA: Okay.
169HER HONOUR: And then come back to the total situation, all right?
170OFFENDER ZAKARIYA: Okay. Um can I ask what you tell her, please?
171HER HONOUR: You would like the interpreter for this?
172OFFENDER ZAKARIYA: (Indistinct words).
173INTERPRETER: No.
174OFFENDER ZAKARIYA: (Foreign words spoken).
175INTERPRETER: No, no, what is the sentence? What is the sentence as a - as a sentence (indistinct)?
176HER HONOUR: All right, yes. That it is partly imprisonment and partly a CCO.
177OFFENDER ZAKARIYA: Okay.
178INTERPRETER: (Foreign words spoken).
179HER HONOUR: Now, the - let me - yes, I will go step by step. The total imprisonment - - -
180OFFENDER ZAKARIYA: Okay.
181HER HONOUR: - - - is 11 months and because of the length of time you have been on remand - - -
182OFFENDER ZAKARIYA: Okay.
183HER HONOUR: - - - that is all satisfied. So if - - -
184INTERPRETER: (Foreign language spoken) sorry.
185HER HONOUR: Yes, I will pause and let that be translated.
186INTERPRETER: Sorry, Your Honour. (Foreign language spoken).
187OFFENDER ZAKARIYA: Okay, okay, okay.
188HER HONOUR: I think - I believe, and I will ask Ms Kaddeche later - or if you want to speak now, Ms Kaddeche, you can. It is my understanding your client has been remanded since July on other charges as well.
189MS KADDECHE: Correct. The matter that he is - the sentencing indication that is listed, he is remanded on those matters.
190HER HONOUR: Yes. So in reality, on my sentence alone he would be released today.
191INTERPRETER: (Foreign language spoken).
192OFFENDER ZAKARIYA: Okay, okay.
193INTERPRETER: (Foreign language spoken).
194OFFENDER ZAKARIYA: Okay, okay, (foreign language spoken), yeah, yeah.
195HER HONOUR: However, because of the other charges that are not coming to the Magistrates' Court until 15 May, I do not think they will actually release you today because you are still remanded on those.
196OFFENDER ZAKARIYA: Other, yeah, okay.
197INTERPRETER: (Foreign language spoken).
198OFFENDER ZAKARIYA: Okay. (Foreign language spoken).
199INTERPRETER: Now, regarding this case, so this case which you are looking into today, Your Honour, so I have all covered the period which I'm supposed to serve?
200HER HONOUR: The period of imprisonment that is supposed to - - -
201INTERPRETER: I will get - I will get additional - - -
202HER HONOUR: Yes.
203INTERPRETER: There has been some additional days over the sentence period that - which I have served in this case?
204HER HONOUR: Yes, you have been in prison longer than the term of imprisonment I am imposing.
205OFFENDER ZAKARIYA: Okay, okay.
206INTERPRETER: (Foreign language spoken).
207OFFENDER ZAKARIYA: Okay, okay, (foreign language spoken).
208INTERPRETER: So I have some few days which are over than the sentence period which you have sentenced.
209OFFENDER ZAKARIYA: Okay.
210HER HONOUR: Yes, you actually have something like seven months over it.
211OFFENDER ZAKARIYA: (Indistinct words).
212HER HONOUR: I have taken that into account under what we call totality.
213OFFENDER ZAKARIYA: Okay.
214HER HONOUR: That also may have some consequences for you on the other charges that Ms Kaddeche can discuss with you.
215OFFENDER ZAKARIYA: Okay.
216INTERPRETER: (Foreign language spoken).
217OFFENDER ZAKARIYA: (Foreign language spoken).
218HER HONOUR: All right. Now, I want to go ahead and complete what I need to say about the CCO and how we are going to get that signed, and then we can come to if there are further questions about how this operates.
219INTERPRETER: (Foreign language spoken).
220OFFENDER ZAKARIYA: Okay, okay.
221HER HONOUR: All right. In relation to the CCO the conditions I impose are that you be subject to supervision. Also that you submit to assessment and treatment as directed for drug abuse, including testing if directed, and that you submit to assessment and treatment, if directed, for mental health problems.
222INTERPRETER: (Foreign language spoken).
223OFFENDER ZAKARIYA: Okay (foreign language spoken) okay.
224HER HONOUR: So supervision, which means visits or sometimes - and at the moment they may be phone consultations with a supervising Corrections officer. If you are directed to it, to be assessed and treated for programs for drug abuse, if you are directed for testing for drug use, and also if you are assessed for mental health treatment.
225OFFENDER ZAKARIYA: Okay.
226HER HONOUR: In addition to those three conditions all usual terms of a Community Correction Order apply. They will have been explained to you during the assessment but I need to explain them again now. The first is that within two business days of being released from prison, that is within two business days of the CCO starting, you must report to the Community Correction office, which is the Broadmeadows one, and its contact details will be on the order.
227I understand that at present, because of restrictions on physical contact due to the COVID-19 virus, it may be that you are told that that first contact should be by telephone to that office.
228OFFENDER ZAKARIYA: Yes.
229HER HONOUR: Were you told that in your interview yesterday?
230OFFENDER ZAKARIYA: Yep, I did, yeah.
231HER HONOUR: Yes, all right. Well, you probably know better than me what you are to do, but my understanding is under present conditions you telephone the office within - or they may have given you an appointment time already, but at least within those two days after your release from prison. You cannot have an appointment yet because you are still in prison for the other matters.
232OFFENDER ZAKARIYA: (Indistinct words) yeah.
233HER HONOUR: But you are to ring that office and they will give you instructions on what more is required of you in the way of reporting to them.
234OFFENDER ZAKARIYA: Okay.
235HER HONOUR: And they will also discuss the other conditions and what arrangements they are going to make or whether they are going to defer them until the COVID-19 situation has eased a bit, because I am aware that the drug rehabilitation programs and other programs are simply not active at the moment.
236OFFENDER ZAKARIYA: Okay.
237HER HONOUR: In addition, the other terms of a CCO apply and those are that throughout the 10 months of the order, that 10 months starts, as I say, on the day you are released from prison.
238OFFENDER ZAKARIYA: Yeah.
239HER HONOUR: Throughout the 10 months of the order you must notify your Community Corrections office of any change of address in where you are living or where you may be working, including when you start work.
240OFFENDER ZAKARIYA: Yeah.
241HER HONOUR: Also you must obey all lawful directions and instructions of Community Corrections officers. Also you must not leave the State of Victoria without prior permission of Community Corrections officers.
242OFFENDER ZAKARIYA: Yes.
243HER HONOUR: And above all through the whole 10 months you must not commit any further offence which could be punished by imprisonment, and you well know that that includes trafficking in any drugs, possessing any firearms, and all types of offences of dishonesty. You did not have a lot of them but some of them in the past. If you breach the CCO, whether it is because you do not obey some of the directions or the reporting or attending or whether it is through further offending, you will have committed a separate crime, the offence of contravening a CCO, and that can be punished by up to three months' imprisonment.
244Also you can be brought back before this court, and depending on the circumstances of the contravention, your personal circumstances and how much of the CCO you had completed, you could have its conditions varied, including extending how long it lasts, or have it confirmed, or you could be resentenced for the offence for which it was imposed. In this case it is imposed only for the trafficking charge, not for the firearms charges. On the firearms charges I have given a straight aggregate term of eight months' imprisonment. Now, do you understand the conditions and terms of the CCO?
245OFFENDER ZAKARIYA: Yeah, I understand, yeah.
246INTERPRETER: (Foreign language spoken).
247OFFENDER ZAKARIYA: (Foreign language spoken).
248INTERPRETER: I do understand.
249HER HONOUR: Good. Do you agree to comply with that CCO?
250OFFENDER ZAKARIYA: Yeah.
251HER HONOUR: Good. That I understood.
252Now, I go on to state, under s.6AAA of the Sentencing Act, that if you had not pleaded guilty but been found guilty of these exact charges after a trial, and all other circumstances had been the same, I would have imposed a term of 18 months' imprisonment for the trafficking charge; a term of 15 months' imprisonment as an aggregate for the firearms charges, with a total effective sentence of two years and six months and a non-parole period of 21 months. Do you want me to repeat that?
253OFFENDER ZAKARIYA: No, I understand.
254HER HONOUR: No. It would have been a total of two and a half years' imprisonment and a non-parole period of 21 months.
255OFFENDER ZAKARIYA: Okay.
256HER HONOUR: So the 16 and a half months' pre-sentence detention would have come off that but you would have still had a number of more months to serve.
257OFFENDER ZAKARIYA: I could, yeah.
258HER HONOUR: All right, now, we have had emailed to the prison a copy of the CCO. I am simply not able to have you check it, Ms Kaddeche.
259MS KADDECHE: It is okay.
260HER HONOUR: Ms Singh, do you want to see the draft of that order. I had it printed off in advance so it could be - and I have signed it, so it could be sent ahead because hopefully those at the other end are in a position to put it in front of Mr Zakariya at present. Is the document there?
261OFFENDER ZAKARIYA: No, not yet.
262HER HONOUR: No.
263OFFENDER ZAKARIYA: It's just got tested, Your Honour.
264HER HONOUR: Sorry, yes.
265OFFENDER ZAKARIYA: Yes.
266HER HONOUR: I know you just got tested yesterday but we got the report.
267OFFENDER ZAKARIYA: Okay.
268HER HONOUR: You will have to sign a community corrections order. Can I ask you if there is someone in the room there with you?
269OFFENDER ZAKARIYA: No, they are going to call someone or - - -
270HER HONOUR: They are not there with you, I see. Well, I will just pause for a moment.
271OFFENDER ZAKARIYA: (Indistinct words).
272HER HONOUR: I am going to come back to how we arrange this but I do not think - I will first ask if there are any queries in what the sentence has been or in the formal orders, and if not I can release Mr Fatho, who has continued to doze off. Ms Singh, is there anything technically needs to be raised?
273MS SINGH: No, Your Honour.
274HER HONOUR: All right.
275MS SINGH: No, Your Honour.
276HER HONOUR: Ms Lacy, I will release you and your client now.
277MS LACY: Thank you, Your Honour.
278HER HONOUR: Because I will make those orders. They will be entered and he is free to leave.
279MS LACY: As Your Honour pleases.
280HER HONOUR: He has served his sentence. You can leave the courtroom, Mr Fatho. It might be advisable to just wait outside so your barrister can talk to you.
281MS LACY: I am excused, Your Honour?
282HER HONOUR: Yes, you are excused, thank you.
283I will just come back to the situation with Mr Zakariya. As he is - sorry, I might just pause and see. Do we have any response as to whether they have received it? Yes, all right. I am being reminded that the link is going to drop out at one, and we need to let go of it then and we have not had a break since 10.30. Ms Kaddeche - a form of the CCO is signed by me, has been sent to the prison.
284MS KADDECHE: Yes, Your Honour.
285
HER HONOUR: I will have the interpreter explain that it will be produced to

Mr Zakariya and he needs to sign it and then the authorities need to send it back to my associate.
286MS KADDECHE: Yes, Your Honour.
287
HER HONOUR: As it happens, as he is not going to be released today, there is a little more leeway for that to occur. I know the prison authorities can get this done on the day but I am not sure where - we tried to set it up in advance but we are going to lose the link. I think it is better I spend the time telling

Mr Zakariya that he is going to have to sign it when he gets it.
288OFFENDER ZAKARIYA: Yeah, okay.
289HER HONOUR: But there is an issue about whether he will be able to read it without assistance.
290MS KADDECHE: What I will attempt to do is also - my instructor seems to have a quicker access to Mr Zakariya in any event, and I will make sure that he is on top of when he is to receive it, how, so he is aware.
291HER HONOUR: Well, he should be receiving it any time now and certainly today. The question I have is whether your client can read it adequately in English to sign it. I know he has signed community corrections orders in the past.
292MS KADDECHE: Perhaps if somebody can read it - does somebody read it to him slowly perhaps and that might assist.
293HER HONOUR: Who is the somebody? Someone at the prison?
294MS KADDECHE: Someone at the prison who provides him with the - or another option is, Your Honour, that we have a copy of the order, have it emailed to either myself or Mr Lewin who is my instructor - - -
295HER HONOUR: Yes, it can be emailed immediately to both of you, the copy that I have signed.
296MS KADDECHE: It will be quicker for Mr Lewin to get onto Mr Zakariya than myself, that is the only problem, so - - -
297HER HONOUR: Mr Zakariya, you would have been told this, you have had CCOs imposed in the past, you have to sign the document and I think it will be given to you today. If you can understand it, sign it then and it has to be sent back to the court. If you cannot understand it, wait until arrangements can be made by your solicitor to make sure you understand it when you sign it, all right?
298OFFENDER ZAKARIYA: Okay.
299HER HONOUR: All right? Now, just repeating, overall I have imposed 11 months' imprisonment which the time you have been in prison already counts as. As soon as you are released from imprisonment there will be a CCO to last for 10 months and the first thing you are to do on that is to telephone the Broadmeadows Community Corrections office to report in to them and they will give instructions on further steps.
300OFFENDER ZAKARIYA: Okay.
301HER HONOUR: Okay?
302OFFENDER ZAKARIYA: Okay.
303HER HONOUR: What I might do then is - I will leave the Bench to allow you a last five minutes, Ms Kaddeche - - -
304MS KADDECHE: Yes, Your Honour.
305HER HONOUR: - - - and I can ask the interpreter to stay as part of the arrangement if that suits just so that you can have a final explanation to your client.
306MS KADDECHE: Thank you, Your Honour. I would just ask that somebody on your end does not click it off, the link off, because then we all get off - - -
307HER HONOUR: I won't click off and I think one of - my tipstaff or associate need to stay here to be in control so you're not - - -
308OFFENDER ZAKARIYA: I'll call - - -
309HER HONOUR: - - - so it's not that private but in the normal sense, as court officers, they will be driving the equipment.
310MS KADDECHE: I have no problem, just as long as they don't press any now because - - -
311HER HONOUR: Let's hurry up because they have no control of the link dropping out. It was extended until one o'clock and we cannot have it extended again. I am going to leave the Bench. I'm sure Ms Singh will - too, but there's nothing to raise that technically that doesn't work. The paperwork will all be provided to both sides in due course and I'll leave the Bench now.
312MS KADDECHE: As Your Honour pleases.
313HER HONOUR: I'll leave my computer there just so I don't press the wrong button and disconnect you.
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[2020] VCC 603

8 May 2020