R v Bayeh [2008] VSC 636

4 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.

5 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.

6 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. A commercial quantity of phenyl-2-propanone is 2 kilograms. One jerry can contained 2.5 litres of the P2P and the other 9.8 litres of the P2P. The purity of the contents of each of the individual containers was never analysed. The jerry can with the larger amount of P2P was found within a sports bag inside the boot and there was some issue taken with this at the trial. There was no photo of that container in situ in the sports bag.

7 In cross-examination of Mr Hammoud by your trial counsel, Ms Cure, it was conceded that you placed the box containing the methylamine, being the contents of the white container, the filter papers and the Buchner funnels into the boot of Mr Hammoud's car but otherwise you denied being in possession of the P2P and trafficking in it.

8 The Crown submitted that the jury must not have been satisfied beyond reasonable doubt that you 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. On the Crown case, if the jury were satisfied that it was you who went to the JB Hi-Fi store, the purpose being to give the P2P to XY, and that you had the P2P with you on 11 April, then they would have been satisfied that you had the requisite intent. It was never alleged by the Crown that you were at any time engaged in the movement of anything other than a commercial quantity of P2P.

9 Your counsel, in her final address, raised for the jury's consideration the alternative count not on the presentment, although she did not urge that course upon them. She submitted that if the jury came to the view that you had only the red jerry can with the lesser amount of P2P in your possession, then, as there was no evidence as to the purity of that P2P, they could not be satisfied as to whether you were trafficking in a commercial quantity.

10 This submission, as I understand it, was based upon the evidence of Akl Hammoud and his previous conflicting statements as to how many red cans he saw you place in his car, the absence of evidence as to the purity of the liquid in the red can with the smaller amount of P2P and the location of the can holding the larger amount inside the sports bag and the speed at which the exchange was said to have taken place. Having regard to the way in which the case was conducted, there was nothing in the evidence which would permit the jury to return the verdict of guilty to the alternative count unless they accepted this submission although Ms Cure urged them not to.

11 Further, the jury were directed that as the count was framed they could return a verdict of guilty if they were satisfied that you had engaged in the movement of the P2P on either 10 or 11 April. Accordingly, the verdict must relate to your activities on 11 April, that being the only date on which it could be said that the evidence would give rise to a doubt that you were in possession of less than a commercial quantity of P2P.

12 Accordingly, consistently with the way in which the case was put to the jury and consistently with the jury verdict of not guilty to trafficking in a commercial quantity but guilty to trafficking simpliciter, I propose to sentence you in respect of the events of 11 April 2006.

13 The count of possession of equipment relating to trafficking relates to the methylamine, the P2P, the Buchner funnels and the filter papers located in Akl Hammoud's car, the Crown case being that you were in possession of these items before you gave them to Mr Hammoud for safekeeping. The Crown case was that you knew these items and chemicals were ultimately intended to go to XY who would manufacture methylamphetamine.

14 The Crown had to prove, and clearly it did, that you had the requisite intention that these items and substances be used for the purposes of trafficking, here manufacturing.

15 The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment and for possession of equipment related to trafficking 10 years' imprisonment. Clearly, Parliament regards these as serious offences and in my view each of the offences here committed are committed to a serious degree. You were engaged in the movement of a drug of dependence, being the P2P, which is a precursor to the manufacture of methylamphetamine. This makes it a valuable commodity. Even the lesser amount of P2P in the smaller red jerry can, being 2.5 litres, is still a significant amount of a drug of dependence. You were moving it on behalf of Milad Mokbel. Thus, you were not engaged in your own enterprise and although you arranged with Akl Hammoud for him to take the P2P and the other items for safekeeping, no matter the quantity of P2P involved in respect of the possession count, you must have known that you were 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 you were fully aware of the nature and gravity of what you were doing, that is that you were handling a very valuable product, being the P2P, 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. There would be no other reason for you to arrange for a clandestine meeting at a location of your choosing and engage in a brief and swift transfer.

16 In these circumstances, I consider the manner in which each of these offences were committed and your role in them is such that your culpability is high.

17 The Crown have submitted that your role is more significant than that of a transporter, that you enjoyed a position of trust and that your role and position is significantly different from that played by Mr Hammoud. Mr Hammoud became involved at your request. You must have become involved at the request of Milad Mokbel. To that end he has entrusted you with a valuable chemical and you were engaged in the movement of that chemical on 11 April intending that it ultimately reach the hands of XY. XY was known to you, as evidenced by the conversation you had with him at the Grove Café on 23 April, and you must have known that he was a drug cook because there would be no other reason for these materials and chemicals to be in his hands.

18 Mr Shirrefs submitted that you were a transporter or courier only and that only in that sense were you a trusted person but in my view that characterisation coats your role in artificiality. A courier as such is usually paid in kind or cash. That did not occur here. You were paid nothing. You were trafficking in a chemical which was to be used in the process of manufacturing. Thus, you were a conduit between the supplier of the P2P and the cook so that you were engaged with the upper echelons of the illicit drug trade. This was not a situation where as might be said of Akl Hammoud he was called to assist only minutes before the offence was committed and was entrusted with the safekeeping of chemicals and equipment at your request, he being told that you would collect it in a day or two. Your initiative in giving those items and chemicals to Hammoud suggests that your involvement was greater than simply that of courier. Further, you had the P2P in your possession on 11 April and you were engaged in the movement of it.

19 You are 37, single and the eldest of three children. You came to Australia with your parents when you were five years old. You attended local Catholic primary and secondary schools and left school having completed Year 11. Initially you worked in a number of odd jobs and then, from the age of 20 to 25, you worked as an owner driver with Vilis Cakes. At the age of 23 you were involved in a car accident and had two years on Transport Accident Commission payments for injuries sustained in that accident. You lost your driver's licence at the age of 25 and you were then unemployed for 12 months. At the age of 26 you worked with the Salvation Army for six months and I am told that ultimately that led to your working as a fitness trainer.

20 At the age of 30 you became engaged after a relationship of three years standing but that relationship ended when you were imprisoned in 2004. At the time of these offences you were employed as a personal trainer and living in a unit in Sydney Road, Brunswick.

21 Although you were living with your parents when you were on bail, your relationship with them had been strained at times and at one point culminating in your father obtaining an intervention order against you. However, that was subsequently withdrawn and it appears that those tensions have now abated and you propose to live with your parents upon your release. Your parents support you in your present circumstances and were present during the plea and at times during the trial.

22 A report by Mr Newton, psychologist, was tendered in evidence on your plea on your behalf as Exhibit 1. You gave him a history of problem gambling from the mid 1990s to 2005 and it appears that you amassed substantial gambling debts which led to your convictions in respect of dishonesty offences for which you were sentenced to three years' imprisonment, two and a half years of which were suspended. Otherwise you reported to Mr Newton that you do not use illicit substances and you use alcohol only sparingly.

23 You also reported to Mr Newton that you were severely assaulted in 2002 and that you suffer anxiety as a result. He describes your anxiety as chronic and reactive, the latter in response to your current legal situation. He stated that your anxiety had caused you severe distress and panic attacks and in particular that you are pessimistic about your current health problems and ruminate upon them extensively.

24 You regard yourself as a physically frail individual and it is said that such belief in turn intensifies your dependent personality and exacerbates your overall anxiety.

25 Mr Newton also reported that you display symptoms of depression and that you have done so since 2002 and that you have a difficult time adjusting to a return to custody and that you are at risk of becoming further depressed. He has diagnosed you as a having a dysthymic disorder and that you are at risk of developing a major depressive disorder. In Mr Newton's opinion you would benefit from personal counselling or social skills training to remedy your social defects. He described you as struggling to express yourself in a clear and unambiguous manner.

26 Finally, Mr Newton reported that you do not suffer from any psychosis and that neither your reality testing nor moral reasoning are impaired. He assessed you as being of low average intelligence.

27 Mr Newton in his report also made extensive comments about your anxiety, depression, poor self-esteem, immaturity and interpersonal dependence. He has commented:

"He remains a naive and immature man who has difficulty understanding the subtleties and nuances of social interactions and who struggles to express himself in a clear and unambiguous manner."[1]

28 In my view, such an assessment does not sit comfortably with the fact that you instigated the meeting with Detective Sergeant Kelly, that at the time you spoke with him you considered the possibility that your conversations may have been recorded and that you knew you had been involved in the trafficking of P2P and that it had been seized by the police. You spoke with Detective Sergeant Kelly about the concerns you had that a warrant had been executed at the service station owned by your friend and you denied any knowledge of knowing Akl Hammoud. You appeared to confidently and assertively engage in that conversation. You had the initiative and wit to engage in a clandestine meeting with Akl Hammoud which can only have been clandestine because you knew that you were involved in an illegal activity and that there was a possibility that you were under surveillance and you wished to avoid detection.

29 In these circumstances it is difficult to accept Mr Newton's opinion that your social skills are poor and you have difficulty in asserting yourself.

30 A report by Dr Peter Lewis tendered in evidence as Exhibit 3 and dated 6 December 2008 states that he has been treating you for depression and insomnia since June 2007 and that you have been prescribed anti-depressants and Tenormin, the latter to treat palpations and dizziness. It appears from the report of Dr Cochran, which was attached to the report of Dr Lewis, that, as I understand it, you have palpitations when you are anxious and hyperventilating and that any underlying cardiac concerns may be the subject of further testing.

31 The risk management report from St Vincent's Hospital dated 8 December 2008 and tendered on the plea as Exhibit 8 states that your most recent review was in August 2007 and that you had been referred to a psychiatrist for assistance with your panic attacks and breathing exercises. Otherwise it is reported that you have no objective cardial structural disease and no features to suggest coronary artery disease.

32 You were arrested in respect of these matters on 26 April 2006 and remanded in the Banksia Unit at Barwon Prison. You were granted bail on 19 July 2006 and released the following day. While on bail you worked as a fitness trainer and a labourer. In 2007 you were severely assaulted by three masked men in Brunswick and threatened to do the right thing and it is said that this assault has heightened your anxiety.

33 Your bail was revoked on 14 August 2008 because of non-compliance with reporting conditions and you had come to the attention of police while on bail. You have been held in custody since then, initially at the Melbourne Assessment Prison and most recently at the Melbourne Remand Centre where you have been held in mainstream.

34 A certificate tendered in evidence on the plea as Exhibit 5 attests to your having participated in a workplace safety course and it appears that you propose to enrol in other courses.

35 There has been a delay of two and a half years since your arrest and verdict. This delay is not attributable to you but, rather, to the late charging of your co-offender, Horty Mokbel, and no doubt the complexities of compiling a brief against a number of co-accused. You were originally presented with Milad Mokbel, Horty Mokbel and Akl Hammoud on a charge of trafficking in a drug of dependence being not less than a commercial quantity of P2P between 1 February 2006 and 12 April 2006. You were also presented with Akl Hammoud on a charge of being in possession of a drug of dependence, being the P2P, on 11 April 2006 and again presented with Akl Hammoud on a charge of being in possession of equipment relating to the trafficking of a drug of dependence on 11 April 2006. Ultimately, you were presented in respect of trafficking in a commercial quantity of P2P on 10 and 11 April 2006 and possessing equipment relating to trafficking of a drug of dependence; Akl Hammoud having pleaded guilty to one count of trafficking in a drug of dependence, namely the P2P.

36 The Crown submitted that your trafficking was always going to be confined to the events of 10 and 11 April. Be that as it may, nonetheless you did originally face a charge involving a more expansive period of trafficking and it was not until 18 August 2008 that the trial presentment was filed.

37 Your counsel has submitted that there should be parity with the sentence imposed on Akl Hammoud. He was sentenced to 18 months' imprisonment wholly suspended. He came into the enterprise at your request and was engaged in the act of trafficking for approximately 12 minutes as he travelled a distance of some 3.2 kilometres. He pleaded guilty to trafficking simpliciter. He had no prior convictions and agreed to and did give evidence on behalf of the Crown in the case against you. While your position may have been compromised by an offer of a plea to that which you have subsequently been convicted, nonetheless you did not plead guilty. You have prior convictions and you did not assist the prosecution. Mr Shirrefs submitted that such a decision is a difficult one and the decision not to give evidence on behalf of the Crown should not be held against you, and I accept those matters, but those very matters in part underline the rationale for allowing a significant discount to those who facilitate the administration of justice by giving evidence on behalf of the Crown.

38 As stated previously, I regard your role as more extensive and more significant than that of Akl Hammoud. For these reasons I am satisfied that it is appropriate to impose a sentence disparate to that imposed upon Akl Hammoud.

39 You have admitted 36 prior convictions from 11 court appearances between 1989 and 2004. None of your prior convictions are for drug-related offences. Your dispositions have included fines, two bonds, two community based orders, one wholly suspended sentence of imprisonment and one partially suspended sentence of imprisonment. Indeed, you committed these offences during the operational period of a suspended sentence.

40 As stated previously, in 2004 you were sentenced to three years' imprisonment, two and a half years of which was suspended. You were released from custody in May or June of 2005 and thus you committed these present offences within a year of being released and while on a suspended sentence. Thus, it may fairly be said that previous dispositions have failed to deter you from reoffending and you have shown contemptuous disregard of your obligations under the suspended sentence.

41 In these circumstances, specific deterrence must carry considerable weight and your prospects for rehabilitation must be viewed in this context.

42 Your counsel has said very little about your prospects for rehabilitation other than that you will live with your parents and that consistently with Mr Newton's opinion you will benefit from ongoing counselling and structural support.

43 Your counsel submitted that in these circumstances it would be appropriate to tailor a sentence enabling you to be released on a community based order in respect of Count 3, having served a sentence of imprisonment in respect of Count 2.

44 In my view, the seriousness of your offending in respect of Count 3, the fact that previous dispositions have failed to deter you from reoffending and that you committed these offences while on a suspended sentence would not be addressed by such a disposition. Further, your rehabilitation can be structured under the supervision of the Adult Parole Board.

45 Accordingly, in sentencing you I take into account the nature and gravity of the offences here committed, the need to pass a sentence which will serve to punish you and act in denunciation of your conduct and seek to specifically deter you from reoffending and signal to like- minded members of the community that if they should engage in offences such as these they can expect condign punishment.

46 Accordingly, taking into account all matters which go in your favour, you are convicted and sentenced as follows:

47 For the offence of trafficking in a drug of dependence, you are convicted and sentenced to three and a half years' imprisonment; for the offence of possession of equipment relating to trafficking, you are convicted and sentenced to two years' imprisonment.

48 Although the counts are discrete offences and the count of possession of equipment relating to trafficking involved more than the P2P, nonetheless I am sentencing you in respect of the events of one day and they may be said to form part of the one transaction. Accordingly, by operation of law, the sentences imposed will be served concurrently.

49 In order to address your prospects for rehabilitation which, having regard to the fact that you were on a suspended sentence when you committed these offences, may be said to be guarded, I propose to order that you serve a non-parole period of two and a half years before becoming eligible for a parole and I declare that you have already served by way of pre-sentence detention a period of 212 days.