R v Dinah
[2013] VCC 1092
•26 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WISAM DINAH |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 25 July 2013 | |
DATE OF SENTENCE: | 26 July 2013 | |
CASE MAY BE CITED AS: | R v. Dinah | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1092 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Heng | |
| For the Accused | Mr J. Podmore |
HER HONOUR:
1 Wisam Dinah, yesterday I sentenced your co-accused, Aiden Khodher. He was the principal offender in a venture in trafficking in MDA. You assisted and facilitated his activities in manufacturing and trafficking in the MDA by buying precursor chemicals and other items connected with the manufacture of MDA and storing precursor chemicals in your family home.
2 You were present in court yesterday when I sentenced Mr Khodher, and I then set out the activity that gave rise to the charge of trafficking and the other charges to which he pleaded guilty. I do not propose to repeat that account here but these reasons should be understood by what I said in respect of Mr Khodher.
3 On the agreed summary, between January 2010 and July 2011 you made 21 payments, totalling $15,503 via Western Union to various manufacturers of precursor chemicals and laboratory equipment and booksellers. All equipment or chemicals or items are designed for, or able to be used for the manufacture of MDA. All payments by you were made with money provided by Mr Khodher and were in respect of items that he had requested you to order on line for him.
4 By December 2010, that is 11 months after you had started doing this, you saw a pill press in Mr Khodher's position. Whatever your actual state of knowledge as to the true purpose of the items you had purchased and ordered up until that date, it is clear that from then, the time that you saw the pill press, you knew that the chemicals and other items that you were ordering and paying for with money provided by Mr Khodher were for the manufacture and trafficking of MDA by him.
5 Between January and December 2010, that is up until the time you saw the pill press, you had ordered items on 13 occasions and made 13 transfers, totalling just under $6000 as payment for those items. From 1 December, the date by which you are fixed with actual knowledge and when, by your guilty plea, you acknowledged that you were aware that the items you were ordering and paying for were to be used in connection with the manufacture of MDA, you placed a further eight orders and made transfers of money, totalling just over nine and a half thousand dollars, that is from 1 December up until 30 August, the date of the police search warrants and arrests.
6 On 30 August a search warrant was executed at your home, amongst other places. A Western Union receipt for the most recent purchase, that of a punch and die set from China, was found. A punch and die for a tablet press was found concealed in your computer tower.
7 Substantial quantities of precursor chemicals were found in the shed in the back of your family home. These were chemicals that had not been ordered by you. They had been ordered by and large from a local manufacturer. In the shed was 25 kilograms of ammonium acetate, 25 kilograms of ammonium chloride and a total of 20 litres of sulphuric acid.
8 When interviewed by the police after the execution of the search warrants you told them you knew Mr Khodher was manufacturing ecstasy because he told you so. You said that Mr Khodher would give you a piece of paper with the details of the items that he wanted ordered, the names that he wanted the ordered items to be addressed or directed to, and a delivery address for them. On many occasions the name was a false name and the address was not Mr Khodher's home address and often not yours either.
9 You told the police that you had an idea of what the transactions were about but you did not ask questions. You said that when you purchased a book on Amazon called, "Totally Synthesis II", you knew it was about making drugs and you arranged for it to be delivered to the post office rather than to your home, in order to conceal your involvement in ordering it. You said that you were aware that you had purchased palladium chloride and you were aware that it was used in the manufacture of ecstasy. You said you thought you had made a payment for safrole and you knew that was used for the manufacture of ecstasy. You said you had paid for about four die sets for the tablets. Your explanation for the chemicals stored in the shed was that Mr Khodher had given them to you and asked you to hide them and you had done so.
10 Also found at your home during the execution of the search warrant was an air rifle with ammunition which was kept under your bed, and four sets of knuckle dusters, which were in a safe in your brother's bedroom and which you said were yours.
11 It is these circumstances that give rise to your guilty pleas to one charge of possession of substance, material of documents containing instructions relating to the preparation or manufacture of a drug of dependence or equipment with the intention of using the substance, material, document or equipment for the purpose of trafficking in a drug of dependence, between 1 December 2010 and 13 August 2011. As I have already indicated, this between dates charge has the dates fixed by reference to the date on which you acknowledged that, at least by then, you were aware that the items that you were purchasing and bringing into the country were for the purpose of manufacturing ecstasy, and running through until the date of the execution of the warrant.
12 In September 2010, that is about three months before you saw the die press, the pill press, you were convicted and placed on a Community Corrections Order for a period of 12 months on a charge of importing prohibited imports. As a result you were prohibited from possessing any firearms. It is that, that leads to the charge of being a prohibited person in possession of an unregistered firearm in respect to the air rifle that was found under your bed on the day of the execution of the warrant.
13 As a result of the finding of the four pairs of knuckle dusters and your acknowledgement that they were yours, you have also pleaded guilty to one uplifted summary charge of possession of a prohibited weapon.
14 The major charge to which you pleaded guilty, the possession of items connected to trafficking in a drug of dependence, was originally framed to cover the whole period of the Western Union transfers, namely from 26 January 2010 all the way through to the time of the police raid.
15 At the commencement of your plea submissions and consistently with the outline of submissions that were filed on your behalf, I was told that your position was that you did not know from the outset that the items that you were ordering at Mr Khodher's request were connected with the manufacture of ecstasy. It was put that you became suspicious over time and eventually participated in the ordering and payment for the items with full knowledge of their intended use. It was only when I asked how that position sat with your guilty plea to the charge framed over the whole period of the Western Union transfers that consideration was given to the time span in the charge, and as a result, the charge was amended to reduce the timeframe so that it now covers only that period from 1 December, that is from the time that you admit you were fixed with knowledge after you had seen the pill press.
16 The case is put, therefore, and I sentence you, on the basis that the charge covers your possession of the precursor chemicals stored in the shed and found on the day of the execution of the warrant, and also your possession of all items imported by you from 1 December 2010 and paid for by the Western Union transfers. As I understand the way the case against you is put and the basis on which you have pleaded guilty to that more narrowly framed time span of the charge, possession of the precursor chemicals is straightforward. You were in possession of them by storing them in the shed. So far as the items ordered on line were concerned possession is put on the basis of you exercising dominion or control over them by your conduct in ordering them, using a name and address given to you for that purpose, thereby controlling the destiny of the items, sending the money to pay for them and collecting them or directing them to be sent to a particular address provided by you, and in circumstances from 1 December where you knew their true purpose was for the manufacture of MDA. Thereby, by that, demonstrating the requisite knowledge or intent that the items were to be used for trafficking in MDA.
17 You were 19 at the start of the period covered by the charge, 20 by the time of your arrest, and you are now 22. It is clear that this was not a scheme or an operation of your devising. You became involved because of your association with Mr Khodher. You had known him all your life. He is two years older than you and your fathers are lifelong best friends. Their friendship pre-dated your birth in Iraq. The two men, your father and Mr Khodher's father, together with their spouses and those children in their family who had, by then, been born, left Iraq together and came to Australia as two families together to start a new life. Mr Khodher was two when the families arrived and you were only three months.
18 Even at the age that you are now, a two year age gap can be a significant difference. I was told that you had always looked up to Mr Khodher, and this, whilst not excusing your conduct, does put it into context. I was told, and I accept, that you did this because Mr Khodher asked you to. I accept that you were not paid, and that you did not ask for or expect any payment for what you did. The only material benefit I have been told of that you gained was the provision of one or two ecstasy tablets from Mr Khodher during the period.
19 As I said when I was sentencing Mr Khodher, I consider that he did exploit and manipulate his relationships with those he got to assist him and I consider that he exploited and manipulated the relationship with you and that explains how you came to be involved.
20 However, that does not excuse your behaviour. You are old enough and you are intelligent enough to know that what he was doing was wrong. You may have looked up to him and you may have been conscious of the closeness of the family bonds, but you were not, on the material before me, particularly susceptible or vulnerable, in practical terms, or in practical terms, unable to say no. You were not coerced, bullied, threatened, blackmailed or overborne, and you were not an employee in a position of power imbalance that that can create, as your other co-accused, Mr Panwar, was.
21 Like Mr Khodher's parents, your parents too have worked hard to make a new life in Australia and to give you and your younger siblings born here, better opportunities here than they thought you would have had, had they remained in Iraq once their country of origin was afflicted as it has been by external and internal war and conflict. You too, like Mr Khodher, have had the benefits of a stable family life here, material security and a good education. You too completed Year 12 without difficulty and went on to tertiary study and meaningful employment. You studied at a College of TAFE and were employed in the construction industry.
22 Your studies were interrupted by the consequences of a police raid and the realisation that you faced serious charges. Your computer was seized. It contained your course work. That was obviously a setback but it should not have been a major one, and your college made special provision for you to assist you, in reinstating material and granting extensions of time so that you could continue your course, but you ended up not completing that year. You have since regrouped and you are now engaged in studying a new course, no longer in construction but a Batchelor of Psychological Science. You are doing that part time and you are engaged in full time employment.
23 You still live at home and your parents, although clearly disappointed in you and the choices that you have made are, and continue to be, supportive of you. I am told that you have not committed any further offences since being charged.
24 These matters bode well for your prospects for rehabilitation, but it is also clear that you had all of them, the family support, the stability in your family background and family life, your engagement in study and work and the benefits and hopes for the future that that provides throughout the whole period of your offending. Those advantages, unfortunately, were not enough to make you think that what you were doing was wrong, criminally or morally, certain not enough to make you take the step of declining to involve yourself once you clearly were fixed with the knowledge of what was happening. Whilst youth and immaturity and your admiration of Mr Khodher may explain your failure to disassociate yourself once you could no longer ignore the true purpose of the purchase of the goods and the storage of the chemicals, again, it is clear that does not excuse it.
25 This is no single act, or impulsive offence. It is a course of conduct over an extended period. You had ample time to reflect and to distance yourself. Each time you were asked to do a transaction or to store the goods you could have said, no, but you did not, and they were active steps you took to assist and facilitate Mr Khodher. Therefore the conclusion that has to be drawn is that you chose not to distance yourself from this.
26 Had this been your first offence the weight to be given to your youth and immaturity would have been greater, but it was not. You were on a Community Corrections Order for the whole of the period of the offending. You must have been aware that you were breaching your Community Corrections Order by your involvement each time you took a step. It should have given you pause to think and it could have given you a very good excuse for distancing yourself. Your guilty plea for the possession of the firearm charge makes it clear that you were aware that you were unable to possess a firearm as a result of your conviction and the imposition of a Community Corrections Order.
27 Although I say "imposition" of the Community Corrections Order, of course, it is clear that you could not have been placed on that Community Corrections Order without consent. You were aware that you could not commit another offence punishable by imprisonment during the term of the order or to possess a weapon, and yet you did nothing to get rid of that firearm. I was told that you had had it in your possession since you were 15. You are not to be punished for possession of the firearm since you were 15 or for the possession of an unregistered firearm. The punishment must reflect your failure to get rid of it once you were placed on the Community Corrections Order, that is to surrender it to the police.
28 Although the charge of being a prohibited person in possession of a firearm is punishable by a maximum of 15 years' imprisonment, the circumstances of your offending in respect of that charge make it an offence of much less seriousness than the possession of the items connected with the MDA. That charge carries a maximum of five years' imprisonment but it is, in the circumstances, a more serious charge or more serious offending than the possession of the firearm, and for the reasons that I am about to identify, I consider that the charge of possession of the firearm is also less serious than the summary charge of possession of the knuckle dusters. That is not only a summary charge, it is punishable by a lesser term again, a maximum of two years' imprisonment.
29 The offending which resulted in the imposition of the original Community Corrections Order was importing pepper spray. As your counsel, Mr Podmore acknowledged, and as the penalty suggests, this was not importation of one small can but of a large quantity.
30 I was troubled, as I identified in the course of the plea, by the explanations advanced for your possession of the knuckle dusters. There were four pairs of them. You instructed that you found them on a building site and that you had kept them for self defence. The finding explanation makes no sense at all. Whether you bought them, whether you were given them or you happened to come across them somewhere, matters little. You had no valid reason to possess them. If, indeed, you did find them on a building site you were under no compulsion to pick them up and to take them and keep them in your possession and put them in a safe in your brother's room. If you had come across them on a building site, as you instruct, you could have just left them there. Instead, even on your explanation, you made a conscious choice to pick them up and to take possession of them.
31 I was told, so far as the pepper spray charge was concerned, that you said that you had imported the pepper spray for self defence. After the experience of charge and conviction for that you could have been under no misapprehension about the inadequacy of that as a justification, and yet you advanced the same explanation for your possession of the knuckle dusters. That explanation fails to shed any light on your possession of not one, but four pairs, of knuckle dusters. It is clear, therefore, that the sentences to be imposed upon you must reflect deterrence, both general and specific, as well as denunciation and just punishment. Your youth means that the sentence must encourage your rehabilitation and I accept that I should place greater weight on that than would be the case for an older offender.
32 The plea submissions were put on the basis that you should be sentenced to a term of imprisonment but it should be fully suspended. That submission expressly acknowledge that the seriousness of the offending was such that no sentence other than one of imprisonment was appropriate. In my view, your immaturity and your failure to learn from the experience of the charge, conviction and sentence which had resulted in the imposition of the Community Corrections Order for the previous offence, the extended time over which the primary offence relating to the possession of the items related to the manufacture of MDA were concerned, and the commission of the additional weapons offences in the circumstances I have detailed, demonstrate that you lack the maturity, the strength and the commitment to remain offence free without assistance. The assistance provided to you by the support of your family has demonstrably not been enough to stop you from continuing to offend.
33 You pleaded guilty at an early stage and you are clearly entitled to a reduction of the sentence that was otherwise appropriate as a result. I do not consider the circumstances of your offending, as I have detailed them, justify the imposition of a fully suspended sentence. I am of the view that the sentence must include a component, although a modest component, of an imprisonment immediately served. I have given anxious thought to how best to achieve the ends of denunciation, punishment, deterrence and encouraging your rehabilitation.
34 In my view, that balance can best be achieved by the imposition of a short term of imprisonment followed by placing you on a further Community Corrections Order. In my view, that is better than imposing a partially suspended sentence or imposing a sentence and fixing a non-parole period and allowing for the prospect of supervision on parole. A Community Corrections Order after a short term of imprisonment will provide you with the opportunity for supervision and engagement in programs to reduce re-offending through Community Corrections. The punitive and deterrent elements of the sentence can, in my view, be met through that combination of a short term of imprisonment and a modest component of unpaid community work. I fix the component of unpaid community work by reference to an averaging out at five hours a month, that means in effect one Saturday per month for the period of the order.
35 The materials before me indicated that you reported some drug use some of the time or during the period of the offending and some still now, although it does not seem to have been a major factor in your offending or a major blight on your life. In the circumstances it is a risk factor for continued offending and I therefore propose to also impose a condition relating to testing, assessment and treatment, if necessary, for drug abuse.
36 Could you now please stand?
37 On Charge 9, possession of the items related to trafficking in the MDA, you are sentenced to be imprisoned for a period of two months and placed on a Community Corrections Order thereafter for a period of nine months.
38 The conditions of that order are these. There are mandatory conditions. That is that you must not commit another offence for which you could be imprisoned during the time that that order is in force. You must comply with any obligation or requirement prescribed by Regulation 17 of the sentencing regulations 2011. That means you are not to be impaired by drugs or alcohol when you attend upon Corrections for anything to do with the CCO. You must report to, and receive visits from, the secretary or delegate. You must report to the Community Corrections Centre within two clear working days of the order starting. You must let a Community Corrections officer know within two clear working days if you change your address or job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from, and directions of, the Secretary or delegate.
39 In addition, I impose the following conditions. That you must perform 45 hours of unpaid community work over the period of nine months as directed by the regional manager. You must be under the supervision of a Community Corrections officer for the period of nine months. You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager, and you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager.
40 I cannot place you on that Community Corrections Order unless you consent to it being made. Do you understand the effect and conditions of the order?
41 OFFENDER: I understand.
42 HER HONOUR: Do you consent to it being made?
43 OFFENDER: (Indistinct.)
44 HER HONOUR: So far as the other charges are concerned, on Charge 10, of possession of the firearm, I am going to fine you. I am fining you an amount of $1000, and on the summary charge of possession of the prohibited weapon, the four pairs of knuckle dusters, I am sentencing you to be imprisoned for a period of one month and I am directing that that be served cumulatively upon the sentence on Charge 1. That means on the three charges you are sentenced to a total effective sentence of imprisonment of three months. You have served 24 days in pre-sentence detention and I direct that that be counted and reckoned as part of the sentence already served. Then also in respect of Charge 9 you are placed on a Community Corrections Order for a period of nine months. That is to commence on 2 October of this year. That date is fixed by reference to the three months' imprisonment less the 24 days of pre-sentence detention, and the sentence ends on 1 July 2014.
45 In the event that Corrections by administrative action reduces that sentence of three months by any further days, as sometimes happens if there is a lock down because of an industrial dispute or something else, that means that you will still be released at the time of the expiration of your sentence as Corrections declares it, but if that is before 2 October your CCO does not commence until 2 October. Do you understand that?
46 OFFENDER: I understand.
47 HER HONOUR: Then you must report to Corrections within two days of the 2 October. Do you understand that too?
48 OFFENDER: I understand that, yes.
49 HER HONOUR: So far as the fine is concerned there is an automatic stay on the fine of one month. I will, if you wish to, grant an extension of time, a further stay in respect of payment of that fine. You can, if you wish to, apply for payment of the fine by an instalment program or you can, if you wish to, apply for conversion of that fine to unpaid community work. As you will be on a Community Corrections Order, in any event, that may be something that you would wish to consider. If you were to apply for an extension - or, sorry, for a conversion of the fine to unpaid community work, those hours would be in addition to the 45 hours that I have directed in respect of the CCO, but any further unpaid community work would not necessarily have to be done within the nine months of the Community Corrections Order. You would do it by arrangement with Corrections after that.
50 You also have the option of applying to convert the fine to imprisonment in default of payment of the fine. Let me say this. That seems to me to be the least acceptable option. First of all, I have got to agree to do that and I would be reluctant to do it if I thought you had the means to do so or the capacity to perform unpaid community work. Imprisonment in default is the last option and essentially for those without means or who have demonstrated that they are not able to or not prepared to do unpaid community work, and given what I have said about the circumstances of the possession of the firearm and my reasons for imposing a fine if you did apply to convert that fine to imprisonment in default I would most likely make that cumulative upon the time that you are serving rather than concurrent. I am explaining all of that to you so you have this first run through of an explanation of the options. I am sure Mr Podmore will explain it to you in more detail.
51 The only other thing I want to say to you about the fine is this. The Registry of this court is quick to follow up enforcement of fines once the stay period has expired. So it is very much in your interests to consider what you want to do and then to, yourself, or with the assistance of family or your lawyers, approach the Registry of the court to make arrangements if you are unable to pay that fine within the stay period. I will let Mr Podmore speak to you about that now but if you want an extension, say, for three months so you can consider all your options, I would make that order straight away.
52 OFFENDER: I will do all that.
53 HER HONOUR: You want that?
54 OFFENDER: (Indistinct.)
55 HER HONOUR: Okay. That means if you have got the means to pay the fine earlier than that you can, but it means you do not have to worry about it whilst you are serving the balance of your sentence and you can start making your plans as to how best to deal with it when you are at liberty and when you have got a better idea of how you think you are placed.
56 All right, so a stay of three months on that fine of $1000.
57 You need to sign the Community Corrections Order and so I will have that handed down. I ask Mr Podmore to accompany my associate to the dock for that, and I am going to, in the meantime, make the ancillary orders that I was asked to make. You can take a seat while I sign the final orders.
58 Mr Dinah, there were some ancillary orders that I needed to make that apply to you. There is a disposal order that relates to the knuckle dusters, the air rifle and the computer. Did you understand the computer was part of that and has that been discussed between the parties?
59 MR PODMORE: I do not think it has. I am not sure what my client's view of that, in particular is. May I approach?
60 HER HONOUR: Yes.
61 MR PODMORE: Thank you. Your Honour, Mr Dinah says that there are in fact three computers that were taken as far as he knows, and the only concern he has is that he would like some photographs that are on the laptop. So I don't know if that's something that can be easily arranged or not.
62 HER HONOUR: Does the Crown want to persist in the disposal in respect of the computer? I know it was used for the purpose of making the orders but that's all.
63 MS HENG: There were some drug recipes, et cetera, and the documents on the - - -
64 HER HONOUR: Can they be taken off and the clean computers returned or not?
65 UNIDENTIFIED SPEAKER: I am not sure, Your Honour. I am no computer expert, how we go about doing that.
66 MS HENG: It might be a matter for VicPol to just - - -
67 HER HONOUR: I will tell you what. I am going to remove the computer from the disposal order. I hope that the parties can negotiate in respect of that. If the disposal order was for Mr Khodher's computer then you can come back to me and I will remake it. If the disposal order is in respect of Mr Dinah's computer and you cannot resolve whether to either give him the photos back or take the recipes off and give him the computer back, then again, you can come back but I would hope that in the scale of things this should be able to be resolved.
68 MS HENG: As Your Honour pleases.
69 MR PODMORE: Thank you, Your Honour.
70 HER HONOUR: He is probably not the only one who suffers as a result of the disposal of the computer. Probably family are affected as well. In other words, if the police can see it is within their means to get rid of the bad stuff and give it back, that would be my preferred option and what I would be otherwise trying to make you do if it came before me and I had to make formal orders.
71 All right, so the orders I have pronounced reflected what I said I intended to do?
72 MS HENG: Your Honour, there was 6AAA as well.
73 HER HONOUR: Thank you. I declare, pursuant to s.6AAA that but for your pleas of guilty I would have sentenced you to be imprisoned for a period of 12 months on the possession of the items charged, and for two months on the charge of possession of the knuckle dusters. I would have made one month of that cumulative. That would have meant a total effective sentence of 13 months' imprisonment and I would have fixed a non-parole period of six months.
74 MR PODMORE: As Your Honour pleases.
75 HER HONOUR: Thank you.
76 MS HENG: Just one matter, Your Honour. Just in relation to the maximum penalty that was stated in relation to s.71A, the possess substance, I think Your Honour referred to it as being five years. It is in fact ten years.
77 HER HONOUR: Is it?
78 MS HENG: Yes.
79 HER HONOUR: I thought that was from the schedule.
80 MS HENG: It is Level 5 imprisonment but ten years maximum.
81
HER HONOUR: Thank you. Yes. It is still less than the maximum
penalty - - -
82 MS HENG: Correct, Your Honour - firearm.
83 HER HONOUR: - - - for the possession of the firearm whilst being a prohibited person, and that increase does not affect he view I took of the correct penalty in the sentencing range for the charge but thank you for pointing that out to me, Ms Heng.
84 MS HENG: Yes, Your Honour.
85 HER HONOUR: That was something I had misread on the schedule. All right, any further orders then?
86 MS HENG: Thank you, Your Honour.
87 HER HONOUR: I have to stay on the Bench until Mr Dinah is removed but in the circumstances I will allow his family to speak briefly to him here. I must stay on the Bench. You are not allowed to touch him, I am afraid, but you can speak to him.
88 MR PODMORE: I am very grateful, thank you, Your Honour. Your Honour, may I be excused?
89 HER HONOUR: No. Mr Podmore, it is because I think counsel should also be here for the whole time their client is here and while they are taken up.
90 MR PODMORE: No, I did not mean to leave. I was going to go over and attend.
91 HER HONOUR: I am sorry, yes, you can do that too, and so can your solicitor.
92 MR PODMORE: Yes, so thank you, yes. Thank you for that time, Your Honour.
93 HER HONOUR: And thank you both for your assistance.
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