R v Bayeh - [2008] VSC 636

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. of

THE QUEEN

TOREQ BAYEH

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JUDGE:	CURTAIN J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2008
DATE OF SENTENCE:	19 December 2008
CASE MAY BE CITED AS:	R v Bayeh
MEDIUM NEUTRAL CITATION:	[2008] VSC 636

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Tinney	Office of Public Prosecutions
For the Accused	Ms C. Hollingworth

HER HONOUR:

Toreq Bayeh, you have been found guilty by jury verdict of trafficking in a drug of dependence and possession of equipment relating to trafficking. You have admitted prior convictions.

At your trial you were presented on a count of trafficking in not less than a commercial quantity of a drug of dependence. The jury acquitted you of this count and returned a verdict of guilty to the alternative count of trafficking simpliciter.

The Crown alleged that between 10 and 11 April 2006 you were engaged in the movement of not less than a commercial quantity of phenyl‑2‑propanone, which is a precursor chemical to the manufacture of methylamphetamine and is itself a drug of dependence, and that on 11 April 2006, you were in possession of various items and chemicals, being the phenyl‑2‑propanone known as P2P, methylamine, two Buchner funnels and filter papers with the intention that they be used for the purposes of trafficking in a drug of dependence, in particular the manufacture of methylamphetamine.

At trial, the Crown alleged that your offending arose in the context of Horty and Milad Mokbel’s trafficking activities. Horty Mokbel was your co‑offender and was presented on a count of trafficking in not less than a commercial quantity of methylamphetamine between 1 November 2004 and 30 April 2006. He was acquitted.

On 10 and 11 April 2006, you were under police surveillance and the car hired by you, which the Crown allege you were driving, was observed to drive to the JB Hi‑Fi store in Keilor. The driver entered the shop and then very shortly after returned to the car and drove off. The next day, you were observed at the BP Service Station at Brunswick. You had rung Akl Hammoud and asked him to meet you and the two of you were subsequently observed at the petrol station and then you and he drove off, with you in the lead car, to a laneway nearby. You and Hammoud were observed by a surveillance officer at the rear of Hammoud’s car and then both cars were later seen to exit the laneway.

The police followed Hammoud’s car and he was intercepted some 12 minutes later at the Caltex Service Station in Coburg. A search of the boot of the car located two red jerry cans of liquid, a white container of liquid and a box containing the Buchner funnels and filter papers. The contents of the two red jerry cans were analysed and found to contain a total of 12.3 litres of liquid which contained 11.2 kilograms of phenyl‑2‑propanone.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bayeh

Details

AGLC: R v Bayeh [2008] VSC 636
Case: [2008] VSC 636
Decision Date: 19 December 2008

CaseChat Overview and Summary

The case of R v Bayeh was heard in the Supreme Court of Victoria, Criminal Division. Toreq Bayeh was found guilty by jury verdict of trafficking in a drug of dependence and possession of equipment relating to trafficking. The Crown alleged that Bayeh was engaged in the movement of a commercial quantity of phenyl-2-propanone, a precursor chemical to the manufacture of methylamphetamine, on 10 and 11 April 2006. Bayeh was also alleged to have been in possession of various items and chemicals, including phenyl-2-propanone, methylamine, two Buchner funnels and filter papers, with the intention that they be used for the purposes of trafficking in a drug of dependence. The jury acquitted Bayeh of trafficking in not less than a commercial quantity of a drug of dependence, but found him guilty of trafficking simpliciter.

The legal issues the court was required to decide were whether Bayeh had the requisite intention to sustain a verdict of guilty to trafficking in not less than a commercial quantity and whether Bayeh had the requisite intention that the items and substances be used for the purposes of trafficking. The court found that the jury must not have been satisfied beyond reasonable doubt that Bayeh had the requisite intention to sustain a verdict of guilty to trafficking in not less than a commercial quantity but intention was not a live issue at the trial.

The court's reasoning and outcome was that the Crown had to prove, and clearly it did, that Bayeh had the requisite intention that these items and substances be used for the purposes of trafficking. The court found that Bayeh was engaged in the movement of a drug of dependence, being the phenyl-2-propanone, which is a precursor to the manufacture of methylamphetamine. This makes it a valuable commodity. Bayeh was moving it on behalf of Milad Mokbel. Thus, he was not engaged in his own enterprise and although he arranged with Akl Hammoud for him to take the phenyl-2-propanone and the other items for safekeeping, no matter the quantity of phenyl-2-propanone involved in respect of the possession count, he must have known that he was involved in handling substances and items that were going to be used in the manufacture of methylamphetamine. In these circumstances it can only be that he was fully aware of the nature and gravity of what he was doing, that is that he was handling a very valuable product, being the phenyl-2-propanone, that it and the methylamine and the other items would be used to manufacture a drug of dependence and at least in the short term that those items had to be kept safe so as to avoid detection and possible confiscation. In these circumstances, the manner in which each of these offences were committed and Bayeh's role in them is such that his culpability is high.

The final orders were that Bayeh was convicted and sentenced as follows: For the offence of trafficking in a drug of dependence, he was convicted and sentenced to three and a half years’ imprisonment; for the offence of possession of equipment relating to trafficking, he was convicted and sentenced to two years’ imprisonment. Although the counts are discrete offences and the count of possession of equipment relating to trafficking involved more than the phenyl-2-propanone, the sentences imposed will be served concurrently. In order to address Bayeh's prospects for rehabilitation which, having regard to the fact that he was on a suspended sentence when he committed these offences, may be said to be guarded, the court ordered that he serve a non-parole period of two and a half years before becoming eligible for parole and declared that he had already served by way of pre-sentence detention a period of 212 days.

Orders