R v El-Hage (Sentence) - [2011] VSC 452

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. S CR 2009 1461

THE QUEEN

JACQUES EL-HAGE

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2011
DATE OF SENTENCE:	20 September 2011
CASE MAY BE CITED AS:	R v El-Hage (Sentence)
MEDIUM NEUTRAL CITATION:	[2011] VSC 452

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CRIMINAL LAW – Sentence – Trafficking in a commercial quantity of methylamphetamine – Whether family circumstances exceptional – Wife with mental illness and one son mildly disabled - Exceptional circumstances not established – Delay – Parity - Sentenced to four years’ imprisonment with non-parole period of two years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms C Quin	Solicitor for Public Prosecutions
For the Accused	Mr M Tovey QC	Grigor Lawyers

HIS HONOUR:

Jacques El-Hage, on 8 July this year you were arraigned before another judge of this Court and pleaded guilty to one count of trafficking in a commercial quantity of methylamphetamine between 1 September 2002 and 31 March 2003. On 6 September 2011 I heard a plea on your behalf.

The maximum penalty for the offence to which you have pleaded guilty is 25 years’ imprisonment.

The circumstances of your offending are as follows.

In September 2002 two active and experienced methylamphetamine manufacturers set up a clandestine laboratory for the purpose of manufacturing methylamphetamine at a house in Rye. Their activities came to the attention of police who placed them and the Rye premises under surveillance, and who began intercepting calls on relevant phones. Eventually, on 11 April 2003, the premises were raided. Separately, a number of persons were arrested that day, including you. You were not, however, charged at that time. You were not charged until some years later, after one of those involved in the activities began cooperating with police. You were initially charged with trafficking in a large commercial quantity. Others were also charged, including Tony and Milad Mokbel.

The clandestine laboratory at Rye produced methylamphetamine for a number of drug syndicates. You were involved with one of them.

What you did was to arrange for the supply to the manufacturers of necessary chemicals, which were provided by others, and then you arranged to deliver to the same people the finished product. You received payment for your involvement in these arrangements in the form of a portion of the finished product. These activities constitute trafficking in methylamphetamine. The relevant threshold for a commercial quantity is 1.5 kilograms. The prosecution characterises your role as “brokering”.

There is no suggestion that the methylamphetamine you received as payment was for personal use. In intercepted telephone calls you discussed with one of the manufacturers the use of caffeine as a cutting agent for methylamphetamine. When your home was searched after your arrest in April 2003 a clear plastic bag containing caffeine was located. All the relevant activities were fully commercial. You did what you did as part of a commercial drug trafficking enterprise.

Some of the others involved in these activities have…

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 El-Hage (Sentence)

Details

AGLC: R v El-Hage (Sentence) [2011] VSC 452
Case: [2011] VSC 452
Decision Date: 20 September 2011

CaseChat Overview and Summary

The defendant, El-Hage, was convicted of trafficking in a commercial quantity of methylamphetamine. The case came before the court for the purpose of sentencing. The primary legal issues that the court had to address were whether the family circumstances presented by the defendant constituted exceptional circumstances warranting a reduced sentence, and whether any undue delay in the proceedings should influence the sentencing decision. The court also needed to ensure that the sentence was commensurate with the seriousness of the offence and the principle of parity, which requires consistency in sentencing similar offences.

The court thoroughly examined the evidence regarding the defendant's family circumstances, including the wife's mental illness and the son's mild disability. However, the court concluded that these circumstances, while serious, did not rise to the level of being exceptional in the context of sentencing. The court also considered the issue of delay in the proceedings, but found that it did not warrant any adjustment to the sentence. In assessing the overall sentence, the court took into account the gravity of the offence and the need to uphold the principle of parity with similar cases. After weighing all the factors, the court determined that the appropriate sentence was four years' imprisonment, with a non-parole period of two years.

The court's decision reflects a balanced approach, taking into consideration the seriousness of the offence, the need for consistency in sentencing, and the family circumstances of the defendant. The sentence imposed aims to reflect the culpability of the defendant while also providing a measure of deterrence against similar criminal activities. The final orders of the court were that the defendant be sentenced to four years' imprisonment, with a non-parole period of two years.

Orders