R v Rob Karam

[2015] VCC 855

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 11-00709

DIRECTOR OF PUBLIC PROSECUTIONS

v

Rob Karam

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 June 2015
CASE MAY BE CITED AS:	R v Rob Karam
MEDIUM NEUTRAL CITATION:	[2015] VCC 855

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Young
For the Accused	Dr M. Fitzgerald

HIS HONOUR: 

1RK you have pleaded guilty to one charge of trafficking a commercial quantity of a controlled drug, namely MDMA on 10 May 2008.  The plea was entered in this court on 1 May 2014.  You were convicted by a jury on 14 November 2014 of trafficking a commercial quantity of a controlled drug, namely MDMA between 5 February 2008, and 7 August 2008.  That is Charge 1 on the three charge indictment that you went to trial on.

2You were convicted by a jury of conspiracy to commit an offence of possessing a commercial quantity of an unlawful imported controlled drug, namely cocaine, between 26 June 2008 and 8 August 2008.  The date of that conviction was 17 November 2014.  That was Charge 2 on the three charge indictment.

3Charge 3 was a conviction by the jury of conspiracy to commit and offence of importing a commercial quantity of a border controlled precursor between 16 March 2008 and 7 August 2008.  That conviction was taken on 14 November 2014.

4You have admitted a previous criminal history. You were found guilty in the County Court at Melbourne on 23 April 1987 of one charge of burglary, one charge of destroying property (damaging property with intent).  Both charges were adjourned for two years upon entering into reconnaissance in the sum of $1,000 to be of good behaviour in the meantime.  Apart from the fact that you have this criminal record, that record is of very little significance in the sentencing considerations here.

5`The prosecution opening for plea hearing set out the facts in relation to each of the offences, and I refer to the facts set out therein as the factual basis upon which I have imposed the sentences.  I will not recount the facts in any detail but briefly summarise them.  The guilty plea in relation to the charge of MDMA trafficking on 10 May 2008 involved the delivery of 10,967 ecstasy tablets to an undercover policeman, by Fadl Maroun.  You pleaded guilty on the basis that you are an accessory to that event.  See part B paragraph 3 of the prosecution's submissions headed "Offences Legal Aspects."

6Going to the three charge indictment that you went to a jury on. Charge 1 of that indictment to which you pleaded not guilty, was a charge of trafficking a commercial quantity of a controlled drug, namely MDMA.  It was the prosecution case that you were the leader of a group of several persons who took possession of ecstasy tablets supplied to you by Pasquale Barbaro, and that you were Barbaro's major wholesale customer.

7Your trafficking involved the sale of tablets, the possession of tablets for sale, preparation of tablets for sale and transportation of tablets for sale.  The Crown's allegation was that you were supplied with at least the net quantity of 335,000 tablets by Barbaro.  The total number of tablets trafficked by you was alleged to be at least 336,906.  The details of this trafficking are set out on part B for paragraph 4, refer to opening.

8Charge 2, conspiracy to commit an offence of possessing a commercial quantity of an unlawfully imported controlled drugs, namely cocaine, related to the shipping of a container of Columbian coffee beans consigned to an Australian coffee importer, unloaded at the Port of Melbourne on 24 July 2008.  The container also contained an undeclared load of 151 x 1 kg boxes of cocaine.  The pure cocaine contained a component of which was 99.9 kg.  The boxes of cocaine were contained within three large bags positioned near the container door.  The cocaine was discovered by Australian customs on Monday 28 July.

9Pasquale Barbaro and others had been engaged in conversations and activities directed towards obtaining possession of a cocaine upon arrival.  It was intended that it be removed from the container prior to the container's collection and delivery to the main consignee.  You were retained to assist Barbaro on this endeavour in mid-2008.  To quote from p.21 paragraph 5 of the referred to opening, the prosecutor's case was that your role was multi-faceted in that you were -

10(1) To initially provide an identity to be associated with a declared consignment that would safely provide the cover for the concealed cocaine.

11(2) To provide relevant consignment and fake information so at to facilitate early identification of the arriving container.

12(3) To provide updated information regarding whether the container would be able to be safely accessed offside. 

13(4) To liaise with a third party so as to achieve that safe access to the contraband, its removal and its ultimate delivery to interested parties. 

14You were the key person who was to provide the confirmation as to what was going to happen in the days after the arrival of the container.  Crucially, you reported to Barbaro that there were problems with the container, in that it was being watched by authorities and that it was too dangerous to proceed with any attempt to access the container.

15The source of your inside information has not been discovered, but inferentially but it was someone either connected with customs or the container facility.  Details of this charge are provided in part B, paragraph 5 of the referred to opening.

16Charge 3, conspiracy to commit and offence of importing a commercial quantity of a border controlled precursor, namely pseudoephedrine, related to a planned importation of 100 kg of pseudoephedrine into the Port of Melbourne.  It was to be concealed within a shipping container sent from India, which carried a declared load of bedroom furniture, ostensibly imported by Phil Bee Interiors, a regular local importer of such cargo from India.  Ultimately the container was found to contain just under 400 grams of pseudoephedrine.  The sellers of the pseudoephedrine obviously always had the intention of scamming the buyers of the pseudoephedrine, thus the very much reduced amount in the container.

17The prosecution case was that you provided the name of Phil Bee Interiors to be used as the consignor of the container.  The case was that you sourced that from a friend of yours, Ali Chaabani, who owned a retail business in Footscray, which had been doing business with Phil Bee Interiors.  The case was that thereafter provided a document to a co-conspirator, Severino Scarponi, in response to a request from India that the Phil Bee letterhead be used in correspondence which purported to verify Phil Bee as being the Australian importer and a provider of funds.  You were liaising with all the other charged co-conspirators except Mr Batticciotto.

18The Crown contended that you provided strategic advice as to shipping documentation and as to which port the container should be offloaded.  The details of this charge are provided at part B paragraph 5 of the referred to opening.

19In sentencing you under the Commonwealth Crimes Act I am required to have regard to the matters set out in s.16A and s.17A of the Act, and I have done so.  I am satisfied that in respect of the each of the charges that no other penalty, apart from a custodial sentence, is appropriate in the circumstances of each case.

20Mr Young, the prosecutor, submitted that general deterrence was the most significant sentencing consideration and I accept that.  He made submissions in relation to parity and referred me to a number of associated cases.  I have taken them into account.  He submitted that specific deterrence must have some impact upon the sentence imposed., although the reality is that you will be in custody for a lengthy period of time.

21In relation to prospects of rehabilitation, he submitted that apart from age, there was nothing to indicate any basis concerning such rehabilitation.  He made a submission in respect of delay and put that it does not exist in the vacuum, and I should take into account a range of matters when considering it.  He acknowledged that the principles of totality and proportionality are also important considerations in the sentencing process.  This is particularly so as you were sentenced by Her Honour Justice King on 30 April 2013 to a term of 19 years with a non-parole period of 15 years.  The conviction and sentence in that case was unsuccessfully appealed, see Karam v Q, 2015, VSCA 50.

22I have in fact delayed sentencing you until the hearing of that appeal, the result and decision, and subsequent amendment of Her Honour's original order.  What this does mean is that I have to set a new non-parole period for all of the matters that you are to be sentenced for, including the sentence imposed by Her Honour Justice King.

23Mr Papas and thereafter Dr Fitzgerald on your behalf made a number of submissions.  Mr Papas acknowledged that Mr Young's submission as to the law in relation to sentencing principles was accurate and that I have to take into account general deterrence, specific deterrence, parity and totality.  He pointed to the sentencing difficulty I face here where the offending in or around all these offences in some respects involve many of the same parties and the same timelines.

24Dr Fitzgerald on your behalf additionally submitted that in light of the joinder ruling, given on 14 March 24 by myself prior to the trial, I should find that the three charges involve similar parties, facts and circumstances and adjust the sentences accordingly. In submission at the joinder hearing, the defence in fact submitted the opposite. In paragraph 9 of the ruling Mr Boas, who was then acting for yourself, submitted that a nexus had not been demonstrated between Charge 1 and Charges 2 and 3.

25I allowed joinder to enable the prosecution to rebut the pretext offence run in the first trial and foreshadowed to be run in the second run.  It was the defence that you did not have an ongoing business relationship with Pasquale Barbaro.  I found that they were related offences to the extent set out in paragraph 21 of the ruling.  In that context, they are three different drug transactions involving different drugs and different circumstances.  Charge 1 in particular was of a different character from Charges 2 and 3.  Because of the stated relationship between the offences, I have not made the offences totally cumulative and have constructed sentences of appropriate concurrency.

26Mr Young, in response to the submission concerning the similarity between the offences submitted that there were four distinct and identifiable offences. 

27Mr Papas submitted in relation to Charge 1 on the three charge indictment that I should not be satisfied as to the number of pills trafficked by you as contented by the prosecution.  I must say that I found his submission in this respect somewhat tortured in respect of an analysis of the facts of the case.  Something he implicitly acknowledged at one stage by commenting that it was not a particularly worthy submission (see paragraph 26 of the plea transcript).

28I do not accept Mr Papas' analysis of Charge 1 as to the number of tablets involved, for the reasons as set out in Mr Young's document.  I am satisfied beyond reasonable doubt that the number of tablets that the Crown contend were trafficked is the correct amount.

29Mr Papas dealt with the issue of parity and referred me to His Honour Justice Nettle's decision in the initial judgment of the case of Polimeni 2014 VSCA 72.  Polimeni was a trial that I heard, it was appealed, and Justice Nettle, in granting leave to appeal, gave written reasons, and it was to that which Mr Papas referred.  I have considered that decision.

30The submission was that you were at a lower level in relation to Polimeni concerning the charge involving the cocaine.  After a trial I sentenced Polimeni to a term of imprisonment of 18 years with a non-parole period of 12 years.  The conviction and sentence were upheld by the Court of Appeal.  His role was very different to yours and it is a difficult task to assign degrees of ranking in respect of each of the parties.  The prosecution submitted that Polimeni was a significant party to the conspiracy but an intermediary between the parties.  My sentence reflects my view as to the ranking.

31Mr Papas in relation to the precursor conspiracy submitted that your involvement by way of facilitating documents through the Lovely Angels connection puts you at a ranking below co-conspirators, Suri and Scarponi.  I also dealt with both of those. Suri pleaded not guilty and was convicted.  Suri was sentenced to 11 years with a non-parole period of nine.  That non-parole period was varied by the Court of Appeal and reduced to eight years.  Suri's role in the conspiracy generally put was that he was responsible for the Indian connection.  Scarponi pleaded guilty and received a sentence of nine years, eight of which was for the conspiracy and non-parole period of six years.  His role in the conspiracy generally speaking was to do with transport.

32Mr Papas also submitted that you should be ranked below another co-conspirator, Mr Batticciotto, who was a stakeholder in the conspiracy and through numerous conversations was shown to be actively interested in the success or otherwise of the conspiracy.  He pleaded not guilty in a joint trial with Suri and was convicted and sentenced for ten years with a non-parole period of seven years.  I also conducted that trial.

33Again, it is difficult to assess degrees of ranking and my assessment of ranking is reflected in the sentence. 

34Mr Papas set out your personal details at the time of the initial plea hearing on 19 January 2015 you were aged 48.  He told me that you have been married since 1999 and there were three children from the marriage.  The family lived in Kew and attended local schools.  You were born in Lebanon, the family arriving in Australia in 1974.  You are the oldest of the children in the family.  During the trial your father died whilst he was in Lebanon.  Your family lived in Brunswick.  Your father had health issues and I am told was a gambler.  Your mother worked as welfare officer for some time.  You attended a local primary school in Brunswick East, and attended Brunswick East High School until Year 12.

35You started a university course in civil engineering but did not finish it.  You married at the age of 21.  That was a short marriage and you re-married in 1999.  Mr Papas told me that you had an interest in the horse-racing industry and that your working life was generally in the freight-forwarding industry.  You had a business in that industry that went into liquidation in 2003 and you went bankrupt in 2004.  After that you worked as a consultant in that industry in addition to working in the racing industry.

36Mr Papas said you had no physical health issues or mental health issues. 

37On a further hearing of the plea on 29 April 2015, Dr Fitzgerald on your behalf made further submissions, and I have taken them into account.

38Subsequent to the Court of Appeal decision in your matter a further issue arose as to whether I should take into account on sentencing the fact that you made admissions in the trial, thereby reducing the length of the trial.  The prosecution conceded that you had in fact made substantial admissions but you should not receive any sentencing benefit for such.  Mr Young contended that those admissions were made in the face of overwhelming material and that the Crown case was well placed to prove the matters admitted.  He further submitted that if the Crown had been pressed to prove all of the matters, in some instances that would have led to the admission of material prejudice to your case.  Dr Fitzgerald submitted that I should give you a sentencing benefit for the admissions that were made because of the utilitarian value of such admissions.

39That issue was dealt with in the referred to appeal of yours reported at 2015 VSCA 50.  At Paragraph 157, the court said on this issue,   “In our view, the authorities show that the co-operation by the accused with the Crown and the facilitation (shortening) of the conduct of the trial may be a matter taken into account upon sentencing even when remorse has not been shown.  The utilitarian value of such conduct, in appropriate circumstances, is a matter that might mitigate a sentence that would otherwise be imposed.  That is not to say that there should always be a reduction in sentence.  Each case will depend upon its own circumstances.  In some cases, where admissions have been made, it might be plain that such admissions were made for good strategic reasons.  In such circumstances, it may be that it is illusory to talk about a utilitarian benefit where none really exists because no rational person would have prolonged his or her trial by putting in issue matters that the Crown was plainly in a position to prove."

40Sentencing reasons

41In these types of offences, general deterrence is the overriding sentencing principle.  As shown by the four charges that I am considering, you were involved in the drug world as a business man.  You have shown no remorse for such involvement or any regard to the effects of the use of the drugs you were involved in, might have upon users of such drugs.  True it is that people like yourself will not be involved in the drug trade, but for the demand for musers, seemingly from all strata's of society.

42However, the use of such drugs is having a profound effect in many respects upon the safe structure of our society.  People must understand that if they intend to become involved in the drug trade, they will receive lengthy prison sentences.

43It is often said that law enforcement has declared a war on drugs.  But conversely, in my view, the merchants of illegal drugs, such as yourself, have declared a war on society by your actions.  In the many hours during the trial or listening to your conversations and text messages, I do not recall any reflection or conversation by you as to the impact on the users of such drugs.  You were an associate of Pasquale Barbaro and others. You were all totally preoccupied with the illegal drug trade.  At the end of it, what have you achieved but a very lengthy prison sentence?  Which will amount to at least, if for example you live to 100, a quarter of your life.  When you sit in gaol thinking about all of this, what a reflection it is upon your life's achievements.

44Due to your continued involvement in such trade, as shown through the four charges I am considering, I consider that specific deterrence still has a role to play in sentencing.  However, I agree with the prosecutor, in that as you will receive a lengthy prison sentence, it is hard to assess what state of mind you will be in when you are released, not only as to reoffending, but also as to your prospects of rehabilitation.  Thus specific deterrence plays a reduced role in the sentencing context.

45Parity is a difficult issue in this case in relation to each of the charges.  In relation to the charge you pleaded guilty to, you were being sentenced as an accessory to Mr Maroun, whom I am dealing with on Thursday.  There is no double punishment for that offending being imposed when I considered the first charge on the three charge indictment.

46Your plea in relation to that charge is an acknowledgement of responsibility by you and has had the utilitarian effect of shortening any trial that might have occurred, and you have received the appropriate discount for it.

47In relation to the MDMA trafficking, it is clear from the evidence as the prosecutor submitted that you were a major customer of Pasquale Barbaro.  Although you maintained in the witness box that you have never personally handled any MDMA pills, you found great difficulty in coming to grips with the proposition that if people handed them at your direction, then you are responsible.  I suspect that that was a subterfuge on your part.

48In relation to Charge 2, the cocaine conspiracy, the obtaining of the cocaine from the docks was essential to the success of the conspiracy.  You in effect were the man responsible for that part of the operation.  Thus, your role was pivotal and important and you will be sentenced on that basis.  To make a comparison with Polimeni's role is a difficult task because he had a completely different role to you.  As I have said, I loath to assess rankings.  I am content to come to the conclusion that your role was important as demonstrated by you alerting Barbaro that the container was under the scrutiny of the customs.  It was at least the equal of Polimeni's role.

49Concerning Charge 3 on the issue of parity, as I remarked during the course of the plea, I estimate that Suri was a more important partner than you, that does not diminish your importance to the operation.  To equate you with Batticciotto, who had a hands off involvement, unlike yourself, again is an unhelpful comparison.  To enable product to be imported there must be documentation.  You were the facilitator of that documentation which is an important role.

50I have dealt with approximately 18 cases concerning the operation of Pasquale Barbaro and his associates in this court.  This would probably suggest that I am best placed to make decisions as to parity and as to ranking in respect of different roles played by yourself and other co-offenders.  As I have indicated I have attempted to do, and the sentences are a reflection of my best efforts to so attempt.

51I have considered the issue of delay and in previous cases concerning these matters, I have taken the view that, the position adopted by Her Honour Justice King in case of Barbaro is the correct view of delay.  The issue of parity is complicated by the fact that I have to set a new non-parole period for these matters and Justice King's matter.  By that I mean I have to take into account the principles of totality and proportionality in setting the new non-parole period, as well as in relation to the head sentences I set for the four matters here.  Such circumstances were not present in any of the cases that I have been referred to in a consideration of what other courts have done in relation to similar cases.

52In relation to whether I should give a reduction in sentence because of the admissions you made to facilitate the progress of the trial, I bear in mind what the Court of Appeal said in your appeal from Justice King's matter.  That is, I may take such into account even when remorse is not being shown.  Your admissions certainly had a significant effect in shortening the length of the trial.  However as the Court of Appeal said each case will depend on its own circumstances.  In paragraph 9, 159 of the decision, the court said  "We are not persuaded that the applicant in this case should receive a discount on sentence for conducting a strategic "confess and avoid" defence."  I apply that to this case. In my view, you conducted a strategic "confess and avoid" defence and thus you will not receive the discount.

53I sentence you as follows:  I have taken into account all matters made and all the submissions made to me, cases referred to and any exhibits tendered when coming to my sentencing disposition, including any not mentioned in these reasons.

54On Charge 1 of trafficking a commercial quantity of a controlled drug namely MDMA, you are convicted and sentenced to a term of imprisonment of 20 years.  This sentence is to commence nine years prior to the expiration of the sentence imposed by Her Honour Justice King on 30 April 2013.

55On Charge 2 of conspiracy to commit an offence of possessing a commercial quantity of an unlawfully imported border controlled drug, namely cocaine, you are convicted and sentenced to a term of imprisonment of 18 years.  This sentence is to commence 13 years prior to the expiration of the sentence imposed on Charge 1.

56On Charge 3 of conspiracy to commit an offence of possessing a commercial quantity for a border controlled precursor, you are convicted and sentenced to a term of imprisonment of ten years.  This sentence is to commence eight years prior to the expiration of the sentence imposed on Charge 2.

57On the separate indictment that you pleaded guilty to of aiding, abetting, counselling or procuring the trafficking of a commercial quantity of a controlled drug, namely MDMDA, you are convicted and sentenced to a term of imprisonment of three years and six months.  This sentence is to commence nine years prior to the expiration of the sentence imposed by Justice King on 30 April 2013.  As I have already indicated, I have applied a discount for the plea of guilty.  If I am required to state the s.AAA declaration in relation to that I say that but for your plea of guilty, if you were proceeded to trial and were convicted by a jury you would have been given a sentence in the order of seven years, with a non-parole period of five and a half years.

58The total effect of sentence imposed today is 27 years.  It is intended that 18 of years of this sentence accumulative on the sentence of 19 years imposed by Her Honour Justice King, giving a global total effect of sentence of 37 years.  Therefore the end of the date of the total effective sentence taking into account pre-sentence detention, already declared by Justice King as 31 March 2049.

59I fix a new single non-parole period in respect of all Commonwealth sentences which commence today as for a period of 22 years.  That means there is an additional ten years and 49 days on top of the 15 years non-parole period imposed by Her Honour.  This takes into account the fact that you have already served three years and 82 days including the pre-sentenced detention already declared by Her Honour being 393 days.  Are there any other matters I need to consider gentleman?

60MR YOUNG:  My instructor said that Your Honour in fact read if you go to the second last sentence, Your Honour still read it as it was originally drafted.  You said an additional ten years and 49 days on top of the 15 year non-parole period.  It should be ten years and 82 days.

61HIS HONOUR:  82 days, sorry, do you agree with that doctor?

62DR FITZGERALD:  Yes, Your Honour.

63HIS HONOUR:  Sorry I will amend that.  Thanks Mr Young.  Anything else, Mr Young?

64MR YOUNG:  No, Your Honour.

65HIS HONOUR:  Dr Fitzgerald?

66DR FITZGERALD:  No, Your Honour.

67HIS HONOUR:  Thank you, you can take Mr K out now thanks.  Adjourn the court until 10 o'clock tomorrow.

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