DPP v Khalil

[2016] VCC 764

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00096

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW KHALIL

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 June 2016
CASE MAY BE CITED AS:	DPP v KHALIL
MEDIUM NEUTRAL CITATION:	[2016] VCC 764

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 M. Roper
For the Accused	Mr A.J. Patton

HER HONOUR: 

1Matthew Khalil, you have pleaded guilty to trafficking in a drug of dependence, namely 1,4-Butanediol, in not less than a commercial quantity.  The maximum penalty for this offence is 25 years' imprisonment.

2On 27 August 2015, at approximately 2.50 am, police intercepted a car driven by you.  Also in the car was your co-offender, Despina Andonopoulos, who at that time you were sharing a house with, along with her partner in Coburg.  Police searched the car and found three Rheem hot water units in the boot. 

3Andonopoulos was arrested for an outstanding police matter whilst you were interviewed in relation to driving whilst disqualified.  Soon after police executed a warrant at the house in Coburg.  When police arrived you were observed leaving the house in a black jeep. 

4Police then conducted a search of the premises and found a number of items, the details of which are listed in the prosecution summary, Exhibit A.  Many related to, and provided storage for, amounts of 1,4-Butanediol, including a four litre bucket containing the drug in its frozen form.  Other items related to the sale of amounts of that drug, including small containers or bottles, and other material relating to the business of selling the drug. 

5Analysis by forensic scientists had the total quality of the drug at 6.8 kilograms.  A commercial quantity is defined as two kilograms.

6On 14 September 2015 you were arrested at a motel in Coburg and taken to the Fawkner Police Station.  You admitted being familiar with GHB, or G.  You also confirmed that the co-offender was nicknamed Dee and that there were references to her in text messages on your phone.

7Your mobile phone was seized and contained various text messages between you and Andonopoulos, with references to the trafficking of drugs.  After your co-offender, Andonopoulos, was arrested, you continued to send text messages related to trafficking to unknown people, referring to her situation and still selling and organising the drug business.  The details of both of these kinds of texts are included in paragraph 11 of the Crown opening, Exhibit A.

8In your interview you admitted familiarity with GHB and its price and to staying in the upstairs bedroom at the Coburg house for a couple of months.  You gave "no comment" answers in relation to the text messages and made no admissions relating to the drugs or containers found during the search.

9A summons was served on you on 4 November 2015.  On that day you attended Brunswick Police Station and signed a statement admitting that the drugs located at the Coburg house on 27 August 2015 were yours.

10The timeframe of the trafficking charge between 25 and 27 August 2015, reflects the messages on your phone and the drugs and various bottles and/or containers found during the search at the Coburg house. 

11I was informed that this drug is sold in liquid form and is often sold as a substitute for GBH. 

12I was also informed that Andonopoulos' trial is scheduled for later this year.

13As to your personal circumstances; you are currently aged 27 and are the youngest of four siblings with three sisters.  You live with your mother.  Your father died in 2013.  You have the support of your immediate and extended family members, many of whom were in court during the proceedings.  I received a number of character references from friends and family and I take that material into account.  You were raised in a strict environment with the Egyptian Coptic Orthodox community and were schooled and parented according to those traditions.

14Mr Patrick Newton, clinical and forensic psychologist, prepared a report dated 19 April.  In the course of the plea it became apparent that some of the information you had provided to Mr Newton regarding your upbringing had not been revealed.  As a consequence, a further report was provided to me on 31 May 2016.  Mr Newton also had available to him another psychological report dated 14 August 2014 prepared by Dr Matthew Bath, a copy of which was tendered, Exhibit 3.  I take all of that material into account.

15As to your childhood, you suffered intense and ongoing abuse from your father in the form of physical violence as discipline, verbal aggression and humiliation, evidenced by withdrawal of parental affection and contact.  Mr Newton is of the opinion these experiences left you vulnerable to severe substance addiction, as subsequently developed.

16I was informed you became involved in drugs when you went to university.  This also coincided with you coming out regarding your sexuality.  This process was very difficult given the clustered environment in which you grew up.  Neither of your parents are, or were aware, of your sexuality.

17Between 2006 and 2010 you were consistently employed in various retail positions.  As your drug use increased you found securing employment more difficult and were ultimately unemployed, which in turn led to more regular drug use.

18The death of your father has had a significant impact on you.  Your father passed away in January 2013 and at that time your mother was overseas with your sister and his death was unexpected.  You, with the assistance of another sister, found your father deceased at home.  You were required to deal with his death and the emotions relating to your abusive childhood.  You have significant unresolved grief.  Following his death your mental health deteriorated significantly and I was informed that you commenced using ice as well as GHB, or Butanol, on a daily basis.  

19You have attempted to overcome your drug issues.  In the period between 2010 and 2011 you spent two months volunteering at a Coptic Orthodox orphanage in Zambia, which offered you a complete break from drugs.  However, you resorted back to drug use on your return.  During 2013 to 2014 you spent eight to nine months with Exodus Youth Worx in Sydney.  I received a letter from this organisation indicating your positive involvement in their rehabilitation program, dated 1 July 2014.

20Notwithstanding your apparent success with this program, you again reverted to drug use when you returned to Melbourne.  I note that in August 2014 you were before the court in Melbourne and placed on a Community Correction Order.

21Your counsel submitted that your previous rehabilitation attempts focused too heavily on your substance abuse issues, without treating or dealing with your allied mental health concerns.  He submitted that you were effectively self-medicating, predominantly through the use of GBH and methylamphetamine.

22I received a letter from Dr Girgis dated 7 May 2015, which indicates a history of anxiety and depression associated with depressed mood and lack of motivation.  The letter also refers to a mental care plan arranged through a psychologist.  Although you had been prescribed medication you were non-compliant.  Additionally, all professionals you had seen were within the Coptic community and you did not feel you could be fully frank or able to open up fully to them.  Your counsel submitted you were not in the right head space to deal with these issues and you continued your drug use to cope.  Additionally, all of your social connections, apart from family, were part of the drug environment.

23In Dr Bath's 2014 report in respect of previous offending and your situation then, he notes:  "It arose out of a long-standing drug addiction, being unemployed, feeling disconnected from his family and hanging out with the wrong people.  He was regretful of his conduct and said 'dealing drugs helped spread it more and gets more people hooked, it leads to crime and violence.'"  You expressed motivation to enter a detoxification program and remain abstinent from further drug use.  Unfortunately, with the position in respect of this offending, those issues remain.

24Mr Newton describes your drug issues as profoundly problematic drug use, dominating the last three years of your life.  He is of the view you lack insight into relapse prevention and harm minimisation and that there is a strong need for you to receive structured drug education.  Newton is of the opinion that your drug issues are sufficiently severe to meet the DSM5 criteria for diagnosis of severe substance abuse disorder.

25Additionally, it is reported you have difficulties discussing emotions and you suffer psychological distress.  You are emotionally unstable and changeable and moody.  Your mental dysfunction is related to your drug use rather than an anxiety disorder per se.  Newton's diagnosis is of a methylamphetamine-induced anxiety disorder. 

26Newton, in his most recent report, remarks that your current presentation confirms that diagnosis.  Further, Newton is of the opinion that your dysfunctional personality traits are entrenched and pathological to a degree that is highly suggestive of a diagnosis of personality disorder with prominent Cluster B features.

27Your counsel submitted that your anxiety and depression and possible diagnosis of personality disorder, were such that the principles two, five and six enunciated in Verdins were enlivened.  Specifically it was submitted that these conditions would serve to moderate the period of imprisonment to be imposed and that prison will weigh more heavily on you than a person of normal mental health and have an adverse effect on your mental health.  The prosecution did not dispute that submission.  Your diminished moral culpability, however, needs to be viewed in the context of your involvement in the trafficking of a significant amount of the drug and the seriousness of your offending.

28I accept the application of those Verdins principles and I take them into account.

29You have a number of prior convictions relating to both drug and driving offences.  You were placed on a Community Correction Order on 16 April 2013 for offences including possession of seven different drugs.  Most relevantly, on 19 August 2014 you were placed on a Community Correction Order for trafficking and four charges of possession of drug of dependence.  Both of those Community Correction Orders were breached due to further offending.

30You were before the court on breaches of those orders on 1 June 2015.  Those orders were cancelled and the matters adjourned for 12 months, with you to engage in drug and mental health treatment as recommended.  This offending occurred only a few months later.

31You have had opportunities before when you were placed on community-based dispositions to address your mental health and drug issues.  It is of concern to me that you were offending at this level only months after you were placed on an undertaking, having breached two Community Correction Orders.

32I take into account your plea of guilty which was made at a further committal mention.  You have saved time and expense to the community in not running a trial and there is a utilitarian benefit in the plea.  I accept that in respect of all the drugs located at the house, the case against you was not particularly strong and your admissions were of value to the prosecution.  As indicated by your plea, your statement to police and in the material tendered on your behalf, you are remorseful for your conduct.

33There are some aggravating features of this offending.  It occurred whilst you were on an undertaking, having breached two Community Correction Orders for trafficking and other drug-related offences.  You had three times the amount that qualifies as a commercial quantity.  The phone or text messages illustrate a significant level of business.  The prosecution, however, conceded there was no evidence of betterment in relation to your trafficking activities and accepted that you were living in sparse conditions in the Coburg house.

34Your counsel conceded your rehabilitation prospects were guarded.  It was submitted that it should be recognised that you have been motivated in the past to engage and enter rehabilitation programs, and though unsuccessful, it should be accepted that you have possessed sufficient insight that drugs were becoming a significant issue for you.  Newton indicates in his most recent report that you are again expressing similar motivation.

35It is the first time you have been in custody.  Prior to this, when placed on community-based dispositions, there had been no break in the cycle, that is, no enforced period of detoxification that might have sparked what is required in order to engage and then build upon an abstinent lifestyle.

36You are a relatively young man and at 27 years still capable of rehabilitation, despite previous attempts, either at your own initiative or court ordered.  Newton remarks that in the current circumstances you can, at best, be guarded in optimism about your prognosis.  Much will clearly depend on how you utilise your time in custody and the treatment you are able to access there and the attitude you espouse on your release.  In his most recent report he is of the opinion you remain a high risk of relapse, particularly following your release without lengthy supervision.  I accept that you have particularly strong family support in the community which is a good sign for your rehabilitation.

37In further plea submissions filed with the court, your counsel submitted that a Community Correction Order of significant length alone, or combined with a term of imprisonment, would be an appropriate disposition having regard to your need for treatment and supervision, which would serve to rehabilitate you. 

38The prosecution submitted a term of imprisonment was the appropriate disposition and that a combined term of imprisonment with a Community Correction Order was outside the range of appropriate sentencing options.  In the Crown response to further plea submissions the position did not change.

39The trafficking of drugs in an amount not less than a commercial quantity is a serious offence, as reflected by the lengthy maximum penalty.  The availability of these harmful drugs has a significant effect on individuals and impacts on the community as a whole.  General deterrence is an important sentencing consideration.  Given your prior history and breaches in respect of community-based dispositions previously imposed, specific deterrence remains a relevant sentencing matter.

40I take into account your level of mental functioning at the time of your offending, plea and other personal circumstances, along with your rehabilitation prospects.

41Could you please stand up Mr Khalil.

42Taking all relevant considerations into account you are to be convicted and sentenced to a period of imprisonment of four years with a non-parole period of two and a half years.

43Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter I would have imposed a sentence of six years with a minimum of four years. 

44I make the forensic sample order, as requested. 

45Did I sign that last time, Mr Roper?

46MR ROPER:  I don't believe so.

47HER HONOUR:  Do you have that there?  Do you have the order?

48MR ROPER:  There was a draft provided to the court, Your Honour.

49HER HONOUR:  If your instructing solicitor could provide one to my associate - of today's date please.

50MR ROPER:  Yes, Your Honour.

51HER HONOUR:  I will sign those later today.  Are there any other matters?

52MR ROPER:  Just the pre-sentence detention.

53HER HONOUR:  Yes, what is the PSD please?

54MR PATTON:  Forty-one days, Your Honour.

55HER HONOUR:  Pre-sentence detention of 41 days is declared.  Thank you, you can remove the prisoner.

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