DPP v Bchinnati

[2018] VCC 372

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-01151

DIRECTOR OF PUBLIC PROSECUTIONS

v

OMAR BCHINNATI

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 March 2018
CASE MAY BE CITED AS:	DPP v Bchinnati
MEDIUM NEUTRAL CITATION:	[2018] VCC 372

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P.A. D'Arcy	Office of Public Prosecutions
For the Accused	Mr C. Dane QC

HER HONOUR:

1Omar Bchinnati, you have now pleaded guilty on an indictment to a single charge of trafficking in a drug of dependence in not less than a commercial quantity, namely 1-4, Butanediol.  This carries a maximum penalty of
25 years' imprisonment by way of penalty.  Do not stand up unless you want to.

2OFFENDER:  (Indistinct words).

3HER HONOUR:  All right.  You have also pleaded guilty to two related summary offences namely dealing with the proceeds of crime, an amount of $10,000 and a charge of committing indictable offence whilst on bail.  These charges carry a maximum of two years' imprisonment and three months' imprisonment respectively.  These maximums reflect the seriousness with which parliament regards these offences.

4After submissions made on application for a sentence indication I did give a sentence indication that should you be prepared to plead guilty to what was then a draft plea indictment which includes the charges to which you have just pleaded guilty then I would not impose a period of imprisonment which required you to serve any further time in custody and that I would also consider the imposition of a community corrections order.  You have now entered a plea to those charges.  Now that I have given that indication and you have entered a plea of guilty I now must not impose a term of imprisonment outside that indication given.

5The circumstances of your offending have been set out in a document entitled "Summary of Prosecution Opening for Sentence Indication" dated the 18th and 23 March 2018.  There was no challenge by your counsel to this document.  The two documents will be annexed to these reasons.

6In short compass, Operation Merlin was an investigation by Victoria Police drug force which commenced in 2016.  The investigation established that a
co-accused by the name of Saer Obian imported 1,4-Butanediol on two occasions during 2015.  It is not alleged that you had anything to do with importation.  Another co-accused, Khaled Mustafa, organised for the imported drugs and others to be stored at shop in Lygon Street, Carlton and at one other location.

7On 13 June at approximately 2.50 pm a 000 call was made notifying police of what was alleged to be an assault and kidnapping at the Lygon Street address.  Police attended at the address but did not locate a kidnapping victim.  Instead they discovered many boxes containing 1,4-Butanediol.  Mustafa, together with others, agreed to collect and transport the bottles of Butanediol in an effort to avoid further detection.

8As I understand the direct allegations as they are said to relate to you, they are as follows: 

-    That you attended at a location at 296 Racecourse Road, Flemington, on two occasions on 14 June 2016.  One at approximately 3.30 am and one at approximately 4.46 am. 

-    On each of these occasions you assisted others to move and unload boxes from a van into the premises.

9It is put by the Crown that those boxes contained 1,4-Butanediol.  At a later stage some 2026 kilograms of that substance was located at that address. 
A commercial quantity is 250 grams in pure form.  When located by the police you were in possession of $10,000 in cash.  At the time of your offending on
14 June you were on bail. 

10The Crown accept that you were lower down in the pecking order overall in terms of this investigation and that you are effectively "a pair of hands" responsible for moving and concealing the drugs.  The Crown also agree that you are lower down than a Munir Omer, with whom I have already dealt. 
Mr Omer was prosecuted for the same Charge 1 as yourself, that is, trafficking in a commercial quantity of a drug of dependence, namely 1,4-Butanediol, in fairly similar circumstances.  But to be more precise it included Mr Omer allowing on 14 June the Butanediol to be stored at premises at which he was residing and then further assisting alleged co-accused to move more of the same substance from the storage facility.  He was, in fact, intercepted by police with a co-accused in possession of 1160 kilograms of Butanediol. 

11It was put by the Crown in relation to his prosecution that his role was extremely limited.  He was responsible for moving and concealing the drugs and that he was, effectively, "a pair of hands".  For the charge which you share in common Mr Omer was sentenced to 14 months' imprisonment. 

12Where his offending is objectively more serious than yours relates to the allegations that he was charged with, and plead to, trafficking in 206.6 grams of methylamphetamine in that he had the possession of that drug for the purposes of sale.  He was also found to be in possession of 260.2 grams of cannabis and $1350 in cash.  In relation to those matters Mr Omer was convicted and sentenced to - sorry, in relation to the trafficking he was convicted and sentenced to eight months imprisonment.  Four months of that charge was cumulative on Charge 1.  This gave him a total effective sentence of 18 months.  He also faced summary charges to which I have referred for which he was placed on a community corrections order for a period of two years.  Effectively he received a sentence of 18 months with a community corrections order. 
I note that 610 days were reckoned as served.

13The personal circumstances that were taken into account in relation to Mr Omer included a relatively limited criminal history of some three court appearances, his difficult upbringing having moved from Eritrea, strong family support and a range of courses he had completed in the custodial setting.  Indeed Mr Omer had his gall bladder removed whilst in custody.

14As I have already referred, the objective gravity of your offending is said by both parties to be towards the lower end of the scale in the context of what was otherwise a lengthy and complex investigation with multiple alleged offenders.  I accept this characterisation.  However I do not see any material basis in which to differentiate your offending as it relates to Charge 1, with that of Mr Omer.

15Your personal circumstances have been set out by your counsel in detailed and helpful written submissions as well as oral submissions.  In short compass you are now 31 years of age and are the oldest, or the second oldest according to one document, of five children born to Lebanese parents.  Your parents divorced in 2006.  You have a poor relationship with your father, who was violent, abused alcohol and suffered from a gambling addiction.  You have a good relationship with your four siblings and with your mother.

16You have a long term relationship with a partner, Raquel, with whom you have had a relationship for some eight years.  You have no children.  You left your education at Year 11 and attempted some tertiary qualification, unsuccessfully.  You have, however, been gainfully employed most of your life.  More recently you worked in a building trade.

17Both this offending and your criminal history are largely unexplained.  You are not said to be a drug or alcohol user.  You do suffer from a number of diagnosed mental illnesses to which I will later return.  You have some nine previous court appearances which largely seem to reflect offences of violence, failure to answer bail and to comply with a corrections order, cultivate cannabis and driving offences.  You have not previously been required to serve an immediate sentence of imprisonment.

18Whilst you are not be punished again for this prior criminal history it does assist in the process that I am required to undertake in relation to assessing the need to protect the community and to consider aspects of specific deterrence.  I note your offending is such that general deterrence, punishment and denunciation also need be reflected.

19You have been diagnosed with severe attention deficit hyperactivity disorder and mood swing disorder.  You have a long term therapeutic relationship with Dr Paul Grech, from whom I have received some four reports.  I take into account the contents of each of those reports.  His more recent report dated
21 March 2018, indicates that he has been seeing you on a weekly to fortnightly basis since your release from custody in September of last year.

20In his view you have benefited significantly from your recent treatment with dexamphetamine for adult ADHD and have become more fully functional since receiving this medication.  This is encouraging in terms of your prospects for rehabilitation.  I note that you are otherwise unmedicated since you went off prescribed medications in 2015.  I note that you would have been unmedicated at the time of this offending.

21I take into account your plea of guilty and note that it was to a negotiated set of charges.  It therefore represents a plea at an early stage.  I accept that it is a plea also of utilitarian value, have saved the court time and expense and is one of remorse.  These are all matters which are in your favour.

22The basic purpose for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and the impact of the offending on any victim.

23I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and re-integrated into society.  Whilst I express my denunciation for your behaviour I find that given your family support, employment, the sanction of the time that you have served to date and that effective treatment is now in place that your prospects for rehabilitation remain live.  I have had you assessed as to your suitability for a community corrections order and you have been found suitable. 

24I make the ancillary orders as sought for forfeiture of the cash located on you and for you to submit for a forensic sample.  In relation to that application the police will take a sample of your cheek cells using a cotton bud like device.  You will be provided with the relevant information.  I am obliged to warn you that if you do not participate in that process reasonable force can be used to take the sample.  I am granting the application bearing in mind your criminal history, the circumstances of this offending and, in my view it's in the public interest.

25In terms of sentence, in relation to Charge 1, you are convicted and sentenced to 14 months' imprisonment which I reckon as already served.  That means a little slice of the pie is left, Mr Dane.

26MR DANE:  Thank you, Your Honour.

27HER HONOUR:  On the two summary charges I am satisfied that I have the power to impose an aggregate sentence.  Accordingly you convicted and placed on a community corrections order for a period of 12 months.  The conditions include a requirement that you attend upon the Office of Corrections at Broadmeadows within two working days.  It will be supervised by the Office of Corrections.  You are to submit for treatment and rehabilitation in relation to your mental health, which I understand can take place through Dr Grech.  During that time you are also to perform 100 hours of community work, of which I will offset 25 hours.  So 25 hours of treatment will come off the requirement to do the 100 hours of community work.

28There are also a number of stock standard conditions which I am sure
Mr Magazis can assist you with but they prohibit you leaving the State of Victoria without first getting permission to do so.  You need to obey all lawful instructions and directions of and from of the Secretary and a variety of other standard conditions.  I cannot place you on that order unless you are prepared to sign a document to that effect.  Are you prepared to do so?

29OFFENDER:  Yes, Your Honour.

30HER HONOUR:  All right thank you.  Is there anything I have missed out?

31MR DANE:  No, Your Honour.

32MR D'ARCY: Section 6AAA.

33HER HONOUR: Section 6AAA thanks very much. Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges.  If not for your plea of guilty I would have sentenced you to a total effective sentence of two years with a minimum of 12 months before being eligible for parole.  Is there anything further?

34MR DANE:  I don't think so, Your Honour.  The order's signed, doesn’t he ‑ ‑ ‑ 

35HER HONOUR:  Yes but I don't need to be here for that necessarily.

36MR DANE:  No.

37MR D'ARCY:  There's some orders that are just being prepared for Your Honour.

38HER HONOUR:  All right well I will wait then.  Wherever you are more comfortable, Mr Bchinnati, in fact you do not even need to be in the dock any more in my view.  You might want to prioritise a hospital or a general practitioner.

39OFFENDER:  (Indistinct).

40HER HONOUR:  You can step out of the dock if you're ‑ ‑ ‑ 

41MR DANE:  Able.

42HER HONOUR:  Able, yes.  Yes thank you, Mr Cullen, if we could adjourn sine die.

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