DPP v El Hage Hassan

[2018] VCC 771

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00237
Indictment No.H11503890

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAM EL HAGE HASSAN

---

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2018
DATE OF SENTENCE:	28 May 2018
CASE MAY BE CITED AS:	DPP v El Hage Hassan
MEDIUM NEUTRAL CITATION:	[2018] VCC 771

REASONS FOR SENTENCE
---

Subject:                   CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Failing to obey an order requiring assistance – Possess drug of dependence – Handling stolen goods – Possess trafficable quantity of firearms – Possess material or substance or equipment for manufacture of drug of dependence – Summary charges – Handle stolen goods and Firearms charges - Tending firearms for others – Firearms loaded and insecurely stored - History of depression and self-harm – Obsessive compulsive disorder

Legislation Cited:        Drugs, Poisons and Controlled Substances Act 1981

Sentence:Convicted and sentence to a Total Effective Sentence of 6 years and 6 months’ imprisonment with a non-parole period of 4 years’ imprisonment – Pre-sentence detention of 363 days declared as having already been served – s.6 AAA Sentencing Act 1991 declaration – Ancillary orders Firearms Forfeiture Order and Disposal Order

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Solicitor for Public Prosecutions
For the Accused	Mr J. Saunders	Emma Turnbull Lawyers

HER HONOUR:  

1Sam EL HAGE HASSAN, you have pleaded guilty to the following offences:

2One charge of failing to obey an order requiring assistance which has a maximum penalty of five years' imprisonment.

3Two charges of possession of a drug of dependence which has a maximum penalty of one year imprisonment if the possession was not related to trafficking but five years' imprisonment if I were to find otherwise.

4One charge of handling stolen goods which has a maximum penalty of 15 years' imprisonment.

5One charge of possessing a trafficable quantity of firearms and one charge of possessing material, substances or equipment for the manufacture of a drug of dependence for the purposes of trafficking, each of which carry a maximum penalty of ten years' imprisonment.

6You have also pleaded guilty to the summary offences of dealing with property suspected of being proceeds of crime and being a non-prohibited person in possession of a silencer, each of which have a maximum penalty of two years' imprisonment, as well as one charge of possessing cartridge ammunition which has a maximum penalty of 40 penalty units.

7In sentencing you, I have taken into account the relevant maximum penalties, as these reflect the seriousness with which Parliament regards the various offences which you have committed.  In due course, I will tell you which maximum penalty I have applied in respect of Charge 3.  In relation to Charge 2, the Crown conceded that the steroids were for personal use, so the maximum penalty of one year applies to that particular charge.

8You were aged 33 years at the time of the offending and lived in an outer suburb of Melbourne with your wife, Sarah El Hage Hassan, and your two children, who were aged three and seven at the time of the offending.  I was told by your counsel that you and your wife had separated under the one roof and that your girlfriend was also living at the premises - this was an amicable arrangement, as I understand the situation.  

9You did not have a firearms’ licence.

Circumstances of the offending

10On 30 May 2017 at 5.30am, members of the Victoria Police Echo Taskforce attended your home to execute a search warrant.  You answered the front door and Detective Sergeant Ken RAMAGE explained the provisions of the search warrant and the order police had obtained requiring you to provide any passcode to any electronic device found in your possession.  When asked for the passcode to your Samsung mobile phone which had been seized, you refused, saying, “Go fuck yourself.”  This gives rise to Charge 1 – failing to obey an order requiring assistance.

11You were then arrested.

12Police conducted a search and found a number of items in the front lounge room on the ground floor, including the following:

(a) a Black Gold Blackberry mobile phone on the coffee table;

(b) a magnetic black box attached to a gym frame, with a master key located inside;

(c) a red balloon containing 15 blue heart-shaped tablets, later analysed to be 2 g of a substance which contained methandienone – that is steroids, giving rise to
Charge 2 – possessing a drug of dependence; and

(d) a Ziplock bag containing a white crystal substance was located on the bottom shelf of the coffee table (this was later analysed to be methylamphetamine), gives rise to Charge 3 – which is a rolled up charge of possessing drugs of dependence.

13Police conducted a search of the rear couch pockets in the front lounge room and found the following items:

(a) A wooden handled air pistol (referred to in the opening as Firearm 1);

(b) A loaded black Walther P38 firearm (referred to as Firearm 2).  This was wrapped in a black Prada bag with one magazine loaded with bullets in the firearm, and a second magazine, also loaded with bullets, attached to the firearm hand grip with elastic bands.  There was also a single round of ammunition found in the Prada bag;

(c) A silver Browning handgun (referred to as Firearm 3).  This had a loaded magazine inside it;

(d) Three magazines containing .22 calibre ammunition;

(e) Two boxes containing .22 calibre ammunition; and

(f) A Ziplock bag containing white powder – this was later analysed to be cocaine, which gives rise, in part, to Charge 3 – that is a rolled up charge of possession of drugs of dependence;

Further, police found Victorian vehicle registration plate RKH 365.  The registration plates had been reported stolen at the Broadmeadows police station on 13 January 2017.  This particular item gives rise to Charge 4 – handling stolen goods.

14A Winchester Model 490 .22 calibre long arm rifle (referred to as Firearm 4) with a silencer and scope attached was located leaning up against an internal wall in the front lounge room.

15The four firearms which were found by police give rise to Charge 5 – possessing a trafficable quantity of firearms and the ammunition which was found gives rise to summary Charge 13 – possess cartridge ammunition without a licence.  Your possession of the silencer gives rise to summary Charge 16 – being a non-prohibited person possessing a silencer.

16Police conducted a search of the garage of the property and found the following items:

(a) A silver-coloured pill press;

(b) Modified tubing and containers with a residue inside; and

(c) A yellow-coloured plastic bag containing accessories for a pill press and a single pill.  

These items were later analysed and found to have residue of MDMA on the items in the bag and the single pill was later analysed to include
3,4-methylene-dixoy-N-methylamphetamine.

17The following further items were found at your house in the kitchen cupboards:

(i) Two one-kilogram bags labelled "MSM powder";

(ii) A 300-gram container labelled "MSM powder";

(iii) A Ziplock bag containing a white-coloured powder labelled which was labelled "Sweetener";

(iv) A Ziplock bag containing a white-coloured powder; and

(v) A large Ziplock bag containing a white-coloured powder labelled "MCC102
1.8 kg".

18Further, police found $11,500 Australian currency which gives rise to summary Charge 11 – dealing with property suspected of being proceeds of crime.

19Police also found the following in a walk-in pantry in the kitchen:

(i) A glass bottle containing liquid;

(ii) A glass measuring cylinder graduated to 1000 ml;

(iii) A plastic funnel fitted with paper and attached tubing; and

(iv) Eight plastic funnels of assorted sizes.

20On the top shelf of a cupboard in the laundry, police found:

(i) A plastic bottle labelled "Diggers Isopropyl Alcohol 500 ml" containing liquid;

(ii) A plastic bottle labelled "AES acetone 5 L" which contained liquid;

(iii) A plastic bottle labelled "Acetone 1 L" containing liquid; and

(iv)  A metal tin labelled "Diggers Acetone 4 L" containing liquid;

(v) A metal tin labelled "Diggers Methylated Acetone 4 L" containing liquid with a handwritten label "For Yellow"; 

(vi)  A plastic bottle labelled "Diggers Methylated Spirits 4 L" containing liquid; and

(vii) A cardboard box labelled "Harris Filter Papers" containing papers.

21Near the gym area, police found:

(i) A glass round-bottom flask with rubber stopper, containing liquid;

(ii) A glass bottle containing liquid; and

(iii) A plastic bottle labelled "Diggers Acetone 1 L" which contained liquid.

22On 30 May 2017 and 2 June 2017, police executed a further search warrant at the Cooper Self-Storage facility at Unit 188.  The master key which was found inside the magnetic box at your address fitted the padlock to the storage facility.  A second pill press was found and seized.  Investigators also seized CCTV footage which depicted you attending the unit on 25 April 2017 in your wife’s car, and you were seen removing a pill press and putting it in the boot.

23The various items, including the two pill presses, funnels, powders, glassware, acetone, one MDMA pill and MDMA residue connected with the presses, as I understand it, forms the basis for Charge 6 – possessing substances, material and equipment for the purposes of trafficking a drug of dependence.

24Analysis of the powders and pills seized revealed 6.8 g of cocaine and 7.5 g of methylamphetamine.  This is the basis for Charge 3 – possessing drugs of dependence.  As I say, that is a rolled up charge.

25The "MSM powders" were analysed to contain no illegal substances.  The prosecution, however, allege that these substances were cutting agents for the purpose of Charge 6.  Mr Saunders, who appeared on your behalf, indicated that this was accepted by you.

DNA Analysis

26A DNA analysis was conducted in relation to some of the items found at your house- the firearms, in particular, as well as the pill presses.  The following results were found:

(a) in relation to Firearm 1, there was a mixture of DNA profile of five contributors.  However, the profile was too complex for any further interpretation.

(b) in relation to Firearm 2, it contained a mixture of DNA profile with three contributors, two of those contributors were you and someone by the name of MLADENOVIC;

(c) Firearm 3 contained a mixed DNA profile with two contributors- MLADENOVIC was a contributor;

(d) Firearm 4 contained a mixed DNA profile with three contributors- two of those contributors were you and a Nabil MAGNIE, an associate of yours;

(e) one of the pill presses contained a mixed DNA profile of three contributors on the ‘on and off’ button and you were one of the contributors; and

(f), the other pill press was tested for DNA but no results were yielded.

27You were taken to Melbourne West police station where you participated in a recorded interview.  You provided "no comment" responses to all allegations put.  Later, you voluntarily provided a forensic sample.

28Mr El Hage Hassan, your offending is most serious and calls for a punishment which is just in all of the circumstances and your conduct must be denounced.  It is an aggravating feature of the firearms offence that two of the weapons were loaded and further aggravating that these were insecurely stored in places where your young children resided.  It is also most disturbing that one of the firearms had a scope and a silencer attached to it.

29Your counsel told me that you were minding the firearms and drug equipment for an associate of some notoriety.  The prosecution indicated that the police suspected that this might be the case, in circumstances where you had no prior convictions and your associate was known to the police.  It was further explained that as your associate had previously been shot, you felt it necessary to have loaded weapons at the ready for your own protection.  In relation to the drug equipment, there were signs that some drugs had been manufactured.  In any event, in pleading guilty to Charge 6, you have admitted that you were in possession of the equipment and substances and the like with the intention of using these for the purpose of trafficking in a drug of dependence.  When I took this up with your counsel, he accepted that this was the case and that you must be sentenced on this basis.  In any event, it seems to me that when one considers the places where the equipment and substances were found at your premises and the nature of what was found, it is consistent with you having these for your own purposes, rather than solely minding the items and substances for another, even if that was another reason you were in possession of some or all of them. 

30In the end, I am prepared to accept that you may well have been minding the guns for another person, but this does not impact greatly on your moral culpability which I find is quite high.  The fact of it is that you had these weapons in your possession, available for illicit and potentially lethal purposes.  While it might well be the case that at least some of the drug manufacturing equipment and substances were not yours, you were nevertheless possessing all of the items set out in Schedule A of the indictment, with the intention of using these for trafficking in a drug of dependence.

31Strong weight must attach to general deterrence in a bid to deter others from behaving as you have.

32In sentencing you, I take into account in a general way, the report of Mr Crewdson, clinical and forensic psychologist, dated 5 September 2017.  He diagnosed you as suffering from depression and obsessive compulsive disorder.  You have a history of self-harm attempts which is documented in material tendered on the plea and you have also had substance abuse issues for a number of years now albeit that you are now drug free.  You have also abused alcohol in the past.  

33While it was submitted that there was no impairment of mental function which would attract the operation of Verdins principles, that is, which would result in a reduction in your moral culpability or reduce the weight on other relevant sentencing factors or which would make time in gaol harder for you, your mental health and history in this regard is something that I have factored in in a general way in sentencing you.  

34I also note that the medication that you were previously taking has now been changed, and that you are now being regularly treated by a psychiatric nurse, which is something that you sought out.  This is to your credit.  You are feeling a good deal better in view of these recent events. 

35I now come to the applicable maximum penalty in relation to Charge 3. Section 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 relevantly provides:

"……..where the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in that drug of dependence – to a penalty of not more than 30 penalty units or to level 8 imprisonment (1 year maximum) or to both.

If this is not established, then the Act provides that the maximum penalty is five years' imprisonment.

36Section 73(2) of the same Act relevantly provides:

Where a person has in his possession………, a drug of dependence in a quantity that is not less than the trafficable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence."

37In your case, trafficable quantities of cocaine and methylamphetamine were found at your premises.  This amounts to prima facie evidence that you were trafficking in each of these drugs.  It was submitted by your counsel that you were a user of each of these drugs; that the quantity of each of these was only just above the threshold for trafficable quantity, and that there was nothing found by police such as deal bags or scales which are commonly found in the context of drug trafficking.  He also submitted that neither of these substances were ingredients or products associated with the traces of MDMA found by police. 

38Your counsel also pointed to some hospital records which indicated that you had a history of using methylamphetamine and it was submitted on the plea that you have battled with illicit substances for some time.  Mr Saunders also pointed to the presence of ice pipes being found at your premises.  He was not prepared to call evidence in relation to this particular issue which does not count against you in itself.  It is just that I must decide on the basis of what is before me, whether I am satisfied on the balance of probabilities that you possessed the cocaine and methylamphetamine for purposes not related to trafficking.

39In all of the circumstances, I am satisfied on the balance of probabilities that you were in possession of these drugs for a purpose not related to trafficking- That is, that they were your own supply for your own personal use and therefore, the maximum penalty of one year applies in relation to Charge 3.

40I take into account your background:  You came to Australia from Lebanon with your family when you were six months old.  Your father worked as an electrician and your family also ran milk bars.  You described your upbringing as being “not too good".  After you finished school each day, you were required to go to the milk bars being run by your parents and stay there until they closed late at night.  Your father was often violent toward your mother which often took place in front of you and your two siblings.  Your parents separated when you were nine or ten and you have had no contact with your father since then.

41When you were 13 or 14, you returned to Lebanon with your family for about three years.  This was a most confronting time for you, as you were exposed to conflict and poverty in that country.  When you returned to Australia, you completed Year 11 and some of Year 12 at your local high school, but you left school and immediately obtained employment as a trainee stonemason.  You have had sustained employment in this occupation for many years and you are very skilled and senior in this field.  You have worked for others and you ran your own business for a time.  Unfortunately, you ceased working as head stonemason for a company you had been with for a number of years after your mental health started to deteriorate in 2015.

42I was told that you used cannabis and alcohol from the age of 16, and although you stopped using these for a time in your early 20s, when you were 25, you commenced using methamphetamine and cocaine to a lesser extent.  Your use of these drugs escalated significantly in 2015 amid the turmoil of problems in your marriage.  You were using these substances daily and the situation continued until up to the time of your arrest.  Following your admission to hospital in 2015, after a self-harm incident, you were prescribed medication, but you ceased taking this after a short time, resorting to your drugs of choice as a form of self-medication.

43You left your employment and, in the context of your drug usage, you developed undesirable associations, which was the precursor for your offending for which I now sentence you.

44You married your wife 11 years ago and you have two children, who are now aged eight and four years old.  Your marriage has encountered significant difficulties and in about 2014, you separated under the one roof in the interests of keeping your family together.  Your girlfriend was later introduced into the household and she and your wife have alternated in visiting you on remand, taking the children with them to see you.  Upon your release, you intend to marry your girlfriend.

45You are devoted to your children and I factor in that time without them has and will make life in gaol harder than it would otherwise be.

46You have been close to your mother over the years although you had a falling out with her about five years ago.  Since being in custody, you have reconciled and she has written a character reference in support of you which I have taken into account.

47While you have had no contact with your sister for some time, you have recently reconciled with your brother who was in court in support of you at the plea hearing, together with your mother, your estranged wife and your girlfriend, as well as other supporters of you.  I see that some of those people are here again today. 

48Your solid family and friendship support is another positive factor in respect of your rehabilitation, assuming, as I do, that they had nothing to do with your offending and support your rehabilitation in a positive way.  In this respect, I note that your girlfriend was dealt with for holding two of the weapons for photo opportunities, receiving a good behaviour bond for this.  This is the extent of anyone’s involvement in your offending, so I would expect that you will receive positive and pro-social support when you are released from custody.

49In your favour, you pleaded guilty at an early stage which entitles you to a substantial discount in the sentence than you would otherwise receive.  This is because you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings.  I accept that you regret the consequences of what you have done - that is, how your actions have affected you and yours, but I have not heard anything which convinces me that you have heartfelt remorse or insight into your offending as such.  In the end, I allow for some remorse, albeit limited in the way that I have just explained.  I also accept that you have taken responsibility for your actions.

50You have no prior convictions which is another matter which counts in your favour.  It is relevant to my assessment of your prospects of rehabilitation and the weight I need to give to specific deterrence.  I have also factored in that this has been your first time in gaol, and although you have adapted to life on remand fairly well overall, it is something that I have factored in.  Whilst in gaol, you have returned a number of negative urine screens which also bodes well for your prospects of rehabilitation.  

51I understand that you have been dealt with for a minor disciplinary matter whilst on remand but that it is not expected that you will receive any additional sanction to the lockdown sanction that you have already been subjected to. 

52You have been able to abstain from drug usage whilst on remand as the clear drug screens from November last year show.  You have a solid work history and the character references indicate that you are of otherwise good character as does your lack of criminal history.  You have solid family support and stable accommodation to look to upon your release and you wish to be a positive role model for your children.  

53In all of the circumstances, I find that your prospects of rehabilitation are good and I need only place minimal weight on specific deterrence.  On the other hand, as I have previously said, I must also give appropriate weight to other sentencing considerations such as just punishment, denunciation and general deterrence. 

54It is accepted by your counsel on your behalf that an immediate term of imprisonment with a non-parole period is warranted in your case and it is conceded that you have not served enough time in gaol as yet in order to do justice to all relevant sentencing principles.  However, your counsel submitted that you ought receive a sentence which would involve a shorter than usual non-parole period in view of the matters personal to you.

55I agree that a shorter than usual non-parole period is warranted in your case.  

56Would you please stand up, Mr El Hage Hassan?

57You are convicted of each of the offences, both on the indictment and the summary charges. 

58I make the following ancillary orders-  That is, I make the firearms forfeiture order and the disposal order, both of which was sought by the Crown and not opposed by you.  I note that the other forfeiture order is a matter of dispute insofar as the mobile phone is concerned and will be the subject of argument at a later stage. 

59You are sentenced as follows:

60Charge 1, five months' imprisonment.

61Charge 2, one month imprisonment.

62Charge 3, two months' imprisonment.

63Charge 4, seven days' imprisonment.

64Charge 5, three years' imprisonment, which will be the base sentence.

65Charge 6, three years' imprisonment.

66Summary Charge 11, six months' imprisonment.

67Summary Charge 13, you are fined $1000.

68Summary Charge 16, 12 months' imprisonment.

69There is a presumption of concurrency in respect of these matters, however, in my view, some cumulation is warranted as between some of the charges to reflect the separate offending and criminality involved.  In the interests of totality, however, I have kept that to a minimum and I direct that 12 months of the sentence from Charge 6 be served with the base sentence, producing a total effective sentence of four years' imprisonment and I direct that you serve two years' imprisonment before becoming eligible for parole. 

70If not for your pleas of guilty, in respect of all of the charges, save for summary Charge 13, I would have sentenced you to a total effective sentence of six years six months with a non-parole period of four years. 

71I declare that you have already served 363 days by way of pre-sentence detention. 

72If you would take a seat for a minute please, sir.  Anything arising out of those matters?

73MR SAUNDERS:  Not at all.

74MR ROPER:  No, Your Honour.  

75HER HONOUR:  All right.  Yes, thank you.  If you could liaise with my associate just via email once you have agreed as between yourselves as to when you are available.  You can give a few dates for the forfeiture argument. 

76MR SAUNDERS:  Yes, Your Honour.

77HER HONOUR:  Did you wish to have a word with your client before he is removed?

78MR SAUNDERS:  Thank you, Your Honour.  If I may approach the dock?

79HER HONOUR:  Yes.

80MR SAUNDERS:  Thank you, Your Honour. 

81HER HONOUR:  Yes, thank you.  Could you please remove Mr El Hage Hassan?  Thank you.  yes, thank you.  We will now adjourn. 

‑ ‑ ‑