DPP v Makdissi [2018] VCC 593

1. On 30 November 2016, a police covert operative made contact with Reed. A relationship had been established between them in the preceding fortnight, and she had sold the operative some methamphetamine.
2. As arranged, the covert operative attended an apartment in Melbourne at approximately 7:50 pm, where both Reed and Kirkham were present. Reed told the covert operative that her supply was on his way. Reed also showed the covert operative a bottle of GHB and discussed wholesale and retail prices of that substance. Two other customers of Reed came and went whilst the covert was waiting for you with them.
3. At approximately 9.10 pm, you arrived at the apartment and proceeded to measure 2 grams of methamphetamine out of a larger bag that you were carrying. You gave that to Reed who gave it to the covert operative.
4. The operative paid Reed $1200 and she then gave the money to you. Those funds were then divided between you, Reed and Kirkham, and you then left the apartment.
5. The substance was analysed and found to consist of two grams of methamphetamine at a purity of 76 per cent.

1. The covert operative continued communications with Reed over the few weeks, although her offers for drugs were declined. On 18 January 2017, a series of SMS messages were exchanged between them and it was agreed the covert operative would purchase 3.5 grams of methamphetamine for $1200.
2. The covert operative collected Reed, who then directed her to go to Highlander Lane, where Reed said her supplier lived. You were at the apartment with two other males. Reed gave you $1500, made up of $1200 from the covert operative and $300 of her own funds.
3. You then supplied approximately 7 grams of methamphetamine. Reed then measured what she claimed was 4 grams into another bag, which she gave to the covert operative. The drugs were later analysed and found to consist of 3.5 grams of methamphetamine at a purity of 67 per cent.

Charge 3, trafficking U4-Butanediol, a commercial quantity.

1. From 15 February 2017, your phone and Reed's phone were lawfully intercepted. On 28 February 2017, Reed and the covert operative discussed the purchase of GHB.
2. After negotiations, Reed indicated that she could supply 2 litres of GHB for $2500. On 9 March 2017, Reed contacted you to see if you could supply two bottles of wine. You told her they would cost 12 each and that she would organise it. Reed then told a different covert operative it had been organised, and it would be at a cost of 13 each. She met up with this other covert operative and was given $2600.
3. You were at a flat in North Melbourne, and when they arrived, you indicated that the GHB had not yet arrived. You sent someone to get it, and both Reed and that covert operative left.
4. When they later returned, you handed the covert operative a plastic shopping bag containing two bottles. Reed, shortly afterwards, texted Kirkham to say that she was at "Brizzle's", a name whereby she was referring to you, and that she had made a quick $200 "on this juice".
5. The substance in the bottles was analysed. It was found to contain 1,4-Butanediol, the total quantity being 1644.7 grams. A commercial quantity of that substance is 2 kilograms, or 2000 grams.
6. In this instance, the amount that was actually passed on to the covert operative was less than a commercial quantity. However, the prosecution case is put on the basis of an agreement to sell. That is, it relies on the fact that both you and Reed agreed to sell the 2 litres of 1,4-Butanediol in an amount that was not less than the commercial quantity, even if a lesser amount was ultimately passed on.
7. You were arrested on 1 May 2017, and your premises in North Melbourne and Melbourne were searched. At Highlander Lane, police seized:
8. (a), a total of 62.6 grams of white or blue crystals containing methamphetamine in seven different bags. The individual bag amounts ranged from 2 grams to 40.8 grams. The purity ranged from 57 per cent to 84 per cent. The methamphetamine in the 40.8 gram bag had a purity of 81 per cent. Charge 4; Traffick Drug Dependence.
9. (b), Two tablets, plus some tablet portions and powder, which contained methorphan. That is Charge 5, possessing a drug of dependence;
10. (c), A small tablet weighing .2 grams which contained lidocaine. Related Summary Offences - possessing a schedule 4 poison;
11. (d), A small quantity of cannabis. That is Charge 6, possessing a drug of dependence;
12. (e), A double-barrelled shotgun - that is being Charge 7, a prohibited person possessing a firearm;
13. (f), A shotgun cartridge - that is one of the Related Summary Offences, possessing cartridge ammunition without a permit;
14. (g), A set of knuckle dusters - a Related Summary Offence, possess prohibited weapon;
15. (h), $15,333 in cash, Related Summary Offence - deal with property suspected of being the proceeds of crime.
16. At North Melbourne, police seized a bag containing .4 grams of white power which contained methamphetamine at a purity of 42 per cent. That is charge 8, possession of a drug of dependence, and also located was a jar containing 5.9 grams of U4-Butanediol. Charge 9, possessing a drug of dependence.
17. In respect of your personal circumstances, I received the following documentation on your plea:
18. Report of Warren Simmons, psychologist, dated 13 April 2017.
19. Report from Peter Harvey, counsellor, Refocus Program, dated 12 July 2016.
20. Results of three drug screen tests between the period June-July 2016 and two results from October 2016.
21. I note that all this material was provided prior to your arrest for these matters, and that Mr Simmons was not aware of your involvement in this offending.
22. Additionally, there was a report from Dr Walter De Bartolo dated 13 March 2018.
23. Drug screen results dated 29 January 2018.
24. Bundle of character references from Reverend Father Jack Lutfi, Olivia Terziovski, and Mary and George Macdesi.
25. A contravention of community correction order report dated 9 September 2017.
26. And a bundle of certificates from Marngoneet Correctional Centre.
27. I take all this information into account.
28. You are currently aged 39. You were born in Lebanon and have three siblings. Your father came to Australia in November 1986 with you and your other family members joining him four years later.
29. You, as the eldest son, took up familial responsibilities at a young age, assisting your family to survive during this time of civil war in Lebanon. In May 1990, all of your family were re-united in Australia and you initially lived with your grandmother in Brunswick. You went to primary school, although none of your siblings or you knew any English, and it was a difficult time for all of you. You went to Coburg High School and your family ultimately purchased a house in that area.
30. You struggled at school and found it difficult to fit in with your peers, wanting to work rather than continue with your education. Your father was extremely disappointed with this attitude and you were subjected to physical abuse by him when you received unacceptable school reports or bad results. You left school at the end of Year 10 and were physically punished by your father for doing so.
31. You got into trouble for stealing a pair of sunglasses from a chemist shop when you were a teenager, and police issued you with a warning. Your father dished out a more severe punishment, severely beating you, resulting in police being called and you being placed in a foster hostel for a period of approximately six months.
32. When you were 16, you left home and obtained work as a panelbeater. Though you were unable to get an apprenticeship, you remained working in that field for about three years.
33. By the age of 20 you had developed an interest in heroin, and you quickly became addicted. Despite drug use, you commenced and completed an apprenticeship in carpentry when you were 23.
34. You have a number of prior convictions. These were initially between the period of 2000 to 2003. I was informed that those offences arose at a time when you were severely affected by drugs and resulted in you being placed on a suspended sentence.
35. Between 2004 and 2010, you lived at home with your parents, until you had a serious argument with your father that led to both you and your brothers leaving home.
36. You were supported by your brothers, who assisted you in getting off drugs at this time, and also assisted you in obtaining methadone or other medication over a period of approximately two years. You had been working with your brothers, and then you went and worked for a rival company in 2012.
37. Since 2013, you have not been regularly employed and any work that you have undertaken has been for the purpose of obtaining funds for your drug habit. I was informed that you were working on the apartment in Highlander Lane around the time of your arrest.
38. You moved out of the home that you shared with your brothers, and it was at this time that you were introduced to methamphetamine, and which led to your more recent bout of court appearances.
39. You continually failed to comply with community correction orders imposed during 2013 through to 2016, with you committing drug-related offences.
40. Ultimately, you were sentenced to serve two months' imprisonment in February 2016 and at the completion of that term, a further community correction order was imposed.
41. It was during the time of this CCO that you engaged for a short time with Refocus Program, and provided a limited amount of clean urine screens. However, you were again breached in respect of this community correction order for numerous drug and driving offences.
42. In December 2016, you were given yet another opportunity on a CCO, although that was also breached.
43. I was informed that for much of this time you were hopelessly addicted and that you had to offend to support your habit. Further, that at the time of your arrest on 1 May 2017, you were heavily addicted and living a very unstable existence with no plans for the future and no assets or savings.
44. On 9 September 2017, you were sentenced to a total effective sentence of eight months' imprisonment for drug offences committed in 2016 whilst you were addicted to methamphetamine, and also re-sentenced in respect of offences to which the CCO related.
45. You have no matters outstanding.
46. I was informed that since your incarceration, you have weaned yourself off drugs and undertaken courses within the gaol system. You have provided peer support to fellow prisoners and offers of employment have been made to you upon your release.
47. You have been in custody since your arrest in May 2017, so it has been a period of almost a year.
48. As to your rehabilitation prospects, there are some features that auger well for your rehabilitation. Your family remains supportive of you, and will assist you on your release, with your brothers offering you work and your parents offering you accommodation - even though they both suffer from ill health.
49. You have, in the past, been able to remain drug-free for an extended period of years. You have engaged with relevant courses whilst in custody, including participation in an intensive drug and alcohol course at Marngoneet.
50. However, you do have an extensive drug history, and have repeatedly failed to comply with orders designed to allow you the opportunity to overcome your drug issues whilst in the community.
51. I regard your rehabilitation prospects as fair, although they are clearly dependent on you utilising supports that you have and remaining committed to being drug-free.
52. Your counsel remarked on the improvement in your presentation since you have been in custody. That will continue with abstinence.
53. You have pleaded guilty to these matters at an early stage in the proceedings, and I accept there was some delay with your matter coming to court because of the position your co-accused Reed adopted regarding the commercial quantity charge.
54. Your guilty plea has significantly facilitated the course of justice, and has a utilitarian benefit. No trial was necessary, and your plea saved the cost to the community of court time and resources.
55. I take into account the extent that you have co-operated with authorities. This is also indicative of remorse for your offending.
56. As to aggravating features, you were the supplier of drugs to Reed. You are to be considered higher in the chain from a street-level trafficker. You trafficked in two different types of drug: methylamphetamine and 1,4-Butanediol, and they were both of high purity.
57. In respect of commercial quantity, the maximum penalty is 25 years. You were on a community correction order at the time of this offending.
58. I accept that the commercial quantity was just over the threshold, and that the amount agreed to be purchased was in fact less than that which was supplied by you.
59. On the material available, the amounts of money involved, or profits, were not significantly large and the amounts of methamphetamine involved in the transactions were small.
60. It was submitted that you were not motivated by greed, but that you trafficked in order to support your own habit. That submission was not disputed by the prosecution and I accept that that is the reason for which you engaged in this activity.
61. It was submitted that the extent of trafficking in methylamphetamine was reflected in the sentence imposed on your co-accused, Kirkham, for similar offending.
62. He was dealt with for some of the same trafficking methamphetamine offences in the Magistrates' Court, which are before me. He received a sentence of 90 days, which was effectively time served, and placed on a community correction order.
63. However, there are some differences between you, and between you and Reed. You were higher up the scale, have a significant criminal history, and in respect of Kirkham, you face the more serious commercial quantity charge.
64. Both counsel properly conceded that a term of imprisonment was the only appropriate disposition for your offending. Your counsel submitted that in recognition of the efforts that you have made to rehabilitation, and considering all the other matters in mitigation, that I should impose a non-parole period that effectively allows for you eligibility for parole to be in the near future.
65. Given your history of offending and non-compliance with court orders, specific deterrence is a matter I must take into account. Further, those who are involved in drug trafficking on any scale should be aware that the community expects stern punishment and that those who are minded to be involved in such activity should have that expectation if they are caught.
66. Thus, general deterrence, denunciation and punishment are all relevant sentencing considerations. These must be balanced against matters set out in these reasons in mitigation, particularly your efforts at rehabilitation since you have been in custody since May 2017. Those efforts are recognised in a shorter than usual non-parole period, although your eligibility, ultimately, is a matter for the parole board.
67. I also take into account totality, given that you were sentenced for other similar matters in September 2017 and you are to be sentenced for a number of offences before me.
68. If you could please stand.
69. In respect of Charge 1, trafficking, you are convicted and sentenced to a term of imprisonment of six months.
70. In respect of Charge 2, trafficking in methylamphetamine, you are convicted and sentenced to a term of imprisonment of six months.
71. In respect of the trafficking the commercial quantity, or, not less than the commercial quantity, you are convicted and sentenced to a term of imprisonment of three years.
72. In respect of traffic methylamphetamine, Charge 4, you are convicted and sentenced to a term of imprisonment of two years.
73. In respect of Charge 5, possessing a drug of dependence, you are convicted and fined $200.
74. In respect of Charge 6, possessing a small quantity of cannabis, you are convicted and discharged.
75. In respect of Charge 7, being a prohibited person possessing a firearm, you are convicted and sentenced to a term of imprisonment of one month.
76. In respect of possession of a drug of dependence, Charge 8, you are convicted and fined $200.
77. In respect of possession of a drug of dependence, Charge 9, you are convicted and fined $200.
78. In relation to the summary matters, in respect of possession of a Schedule 4 poison, you are convicted and discharged.
79. In respect of a possession of cartridge ammunition, with no permit, you are convicted and fined $100.
80. In respect of dealing with property as suspected of being the proceeds of crime, you are convicted and fined $200.
81. And in respect of possession of a prohibited weapon, being the knuckle dusters, you are convicted and fined a total amount of $100.
82. That makes a total amount of fines of $1000.
83. And in respect of your term of imprisonment, the base sentence is that imposed in respect of Charge 3, six months of the sentence imposed on Charge 4, and one month of the sentence imposed on Charge 2, will be cumulative; which gives a total effective sentence of 3 years and 7 months, and you will be required to serve 18 months non-parole period. That sentence, two months, will be cumulative on the sentence that you are currently undergoing.
84. What is the PSD, please? Because there was time before 1 September, was there not?
85. MR LEW: It was 141 days, Your Honour.
86. HER HONOUR: Thank you. I declare 141 days pre-sentence detention. I have been handed up a number of orders. I will just sign these.
87. If you had not pleaded guilty to this matter, pursuant to s.6AAA of the Sentencing Act, I would have sentenced you to a term of imprisonment of six years with a non-parole period of four.
88. You can sit down, Mr Makdissi. Thank you.
89. Did you want time, Mr Grace, in respect of the fines?
90. MR GRACE: I am told that since this day of this year, there is - -
91. HER HONOUR: Now you are saying that, I think that is right.
92. MR GRACE: There is no time.
93. HER HONOUR: You do not do it any more.
94. MR GRACE: It is a matter for the Fines Authority.
95. HER HONOUR: I think that is right. I am sorry. Yes.
96. MR GRACE: I just wanted to clarify one aspect of the sentence. You said, "Two months cumulative on the existing sentence"?
97. HER HONOUR: Yes. It was not my intention that it be wholly concurrent, if that makes sense.
98. MR GRACE: Yes, however, the existing
99. HER HONOUR: The existing sentence has only got
100. MR GRACE: It has got less than a month to go.
101. HER HONOUR: Yes.
102. MR GRACE: It has got two or three weeks, I think.
103. HER HONOUR: Yes. Sorry. I should have realised that. Look, what I will do is amend that. If you could amend the court record, please, to have it wholly concurrent.
104. MR GRACE: If Your Honour pleases.
105. HER HONOUR: It ends up being about an extra six months to serve. That is my intention.
106. MR GRACE: Yes, Your Honour.
107. HER HONOUR: Thank you. Just adjourned until tomorrow.