R v Elias [2011] VSC 423

2 You were arrested on 6 June 2007. Your committal proceeded by way of hand up brief. You reserved your plea. You were arraigned and pleaded guilty before me on 4 October 2010. Your counsel had foreshadowed the likelihood of guilty pleas at a directions hearing on 20 September 2010. I was told on the plea that unsuccessful negotiations as to the possibility of guilty pleas had occurred in 2008.

3 The hearing of your plea was delayed for two reasons. The first was that, notwithstanding your guilty pleas, there were substantial factual disputes in relation to the circumstances of your offending which required a contested hearing. The second was that it was thought to be desirable that the contested hearing in relation to your plea be held after proceedings then pending against Antonios Mokbel had concluded.

4 In June of this year I heard the contested plea hearing and also heard submissions on sentence generally. I delivered a ruling on the contested factual issues on 26 August 2011.[1] I incorporate those findings in my reasons for sentence.

5 The maximum penalty for the offence of attempting to pervert the course of justice is 25 years' imprisonment. The maximum penalty for trafficking in a large commercial quantity of methylamphetamine is life imprisonment. The maximum penalty for the offence of dealing with the proceeds of crime is 15 years' imprisonment. The maximum penalty for possession of cannabis is 30 penalty units or one year imprisonment,[2] and the maximum penalty for possession of unregistered category A longarm firearms (on a first offence) is 120 penalty units or two years' imprisonment.

6 I have dealt with the factual circumstances in relation to the first three counts in detail in my earlier ruling. Suffice it to say for present purposes that you attempted to pervert the course of justice by assisting Tony Mokbel to hide within Victoria, to flee first to Western Australia and then to Greece, and to live in Greece until his arrest on 5 June 2007. You committed this offence as part of a joint criminal enterprise. You joined that enterprise some time before a meeting at a remote bush track location which occurred in early October 2006 at the latest. You were not a decision maker in relation to the conduct you were involved in concerning Mokbel's flight but you undertook a number of significant activities. You permitted Mokbel to live on a property you part owned in Bonnie Doon. You accompanied him in his journey from Victoria to Western Australia. You assisted in the fit out and preparation of the vessel upon which he left Australia and went to Greece, and you liaised with Mokbel and engaged in transactions that enabled him to live in Greece. It is this conduct which constitutes the offence in count 1.

7 Your trafficking in a large commercial quantity of methylamphetamine was also as a participant in a joint criminal enterprise. Your involvement began at the time of the bush track meeting to which I have referred. The evidence reveals you undertook activities of increasing importance over time. Initially, you were a driver, and an assistant to your older brother, Chafic Issa. In February 2007 you, or a person using your name and acting with your knowledge and cooperation, rented a self-storage unit where equipment used in the production of methylamphetamine was stored. After your brother was arrested on 5 May 2007, the evidence reveals your role to have been a very important one. You dealt directly with Mokbel. You had a significant role in relation to what is known as the "gassing" component of the production process. You handled substantial amounts of methylamphetamine and cash on behalf of Mokbel. It is this conduct which constitutes the offence in count 2.

8 In a drug related transaction on 23 May 2007 you were handed $40,000 cash by other participants in the enterprise. This is the offence in count 3.

9 The less serious offences (counts 4 to 7) arise out of items found when a property partly owned by you at Bonnie Doon was searched by police. On 5 June 2007, amongst other things, 84.5 grams of cannabis seeds in 17 zip lock bags was found. At a further search on 18 July 2007 three unregistered category A longarm firearms were found.

10 Part of the motivation for your initial involvement in harbouring Mokbel was a "favour" which you believed Mokbel had done for your brother which was then "called in". That motivation does not, however, explain your extensive involvement in Mokbel's flight across Australia and in the preparations for his departure to Greece, or your involvement in the drug trafficking enterprise. Your motivation for that was the prospect of financial gain. The evidence does not enable a conclusion to be reached as to whether you did receive any financial gain.

11 You were born in Lebanon in 1967 and came to Australia with your family in 1977 at the age of 10. You have an older brother, Chafic Issa, and three sisters. Your brother was also a participant in Mokbel's harbouring and flight and in the drug trafficking. He pleaded guilty to similar offences to those you have pleaded to in 2009.

12 On the plea a psychological report by the clinical psychologist, Mr Bernard Healey, was tendered. You told Mr Healey that your childhood home was stressed and unhappy. You left school at the age of 15 part way through Year 9 to work in your parents' milk bar. Your parents went through what Mr Healey describes as "torrid divorce proceedings". When you were 17 years old you began living with a girlfriend, Sharon, who was pregnant to someone else. You eventually married her and had a daughter of your own. Your stepdaughter is now in her mid 20s and your daughter is in her late teens.

13 You worked in a variety of occupations until you were involved in a serious boating accident in January 1989. You suffered a very serious injury to your right arm which has left you with a permanent disability. As a result of the injuries which you sustained in that accident you have been on a disability support pension since then. With financial help from your mother, you and your brother and your respective wives bought a property in Bonnie Doon which you made your home until your arrest in relation to these offences in June 2007.

14 You told Mr Healey that for a long period you had a significant cannabis habit but that you ceased using cannabis some years ago. You told him that you had only ever used amphetamine occasionally, and that alcohol had never posed a serious problem for you.

15 Mr Healey considers that you developed a post-traumatic stress disorder as a result of your childhood experiences in Lebanon. He reports that personality testing was indicative of depression, anxiety and post-traumatic stress. Your wife has taken divorce proceedings whilst you have been in jail on remand. Your stepdaughter has indicated that she wants nothing further to do with you and Mr Healey reports that your daughter has become seriously depressed. Mr Healey expresses the opinion that incarceration has had a devastating effect upon you.

16 Mr Healey also gave evidence orally. He said that you exhibited self reproach at an unusual level. He expressed the opinion that there were strong prospects for your rehabilitation.

17 A large and impressive volume of testimonials and letters were tendered on your behalf. They came from your mother, from long term friends and associates, and from friends and acquaintances in the Bonnie Doon district. There were also letters from within the prison system. They came from fellow prisoners, the Education Director of the YMCA Bridge Project, the Co-ordinator of the Schools Program at the Melbourne Remand Centre ("MRC"), a Peer Educator Trainer at MRC, and the Catholic, Salvation Army and Muslim chaplains. Oral evidence was given by one of your sisters, a number of your friends, two prison officers, an offender services officer, and by the YMCA Education Director. Certificates in relation to prison programs and courses undertaken, and documents from your file at MRC were also tendered.

18 What emerges from all of this material is that you are a person held in high regard by many who know you, that you are genuinely remorseful, and that you have taken every possible opportunity whilst on remand to not only better yourself but to also help others. Your conduct and attitude during the long period you have been on remand has been exemplary.

20 On 20 November 1987 you were convicted at the Oakleigh Magistrates' Court on eight counts of trafficking cannabis and one count of using cannabis. You were sentenced to one month's imprisonment which was wholly suspended and you were fined.

21 On 8 March 1991 you were convicted at the Oakleigh Magistrates' Court on one count of trafficking cannabis, one count of possession of cannabis, and one count of using cannabis. You were initially sentenced to a term of imprisonment, but after appeal to the County Court you were released on a community based order with special conditions that you submit to drug testing and psychiatric treatment.

22 On 1 June 1998 at the Dandenong Magistrates' Court you were convicted of one count of cultivating a narcotic plant namely cannabis, one count of possession of cannabis, one count of using cannabis, a count of theft, and a count of failing to store a category A or B longarm firearm correctly. You were sentenced to be released on an intensive corrections order.

23 In terms of mitigation, the following matters were put on your behalf:

(1) You have pleaded guilty. You are entitled to a significant discount for that.

(3) You have limited prior convictions.[3]

(4) You have a history of hard work and involvement in, and support for, the community in which you live, in spite of your disability.

(5) You have suffered significantly because of the separation from your wife and family as a result of your incarceration.

(6) There are many people who think highly of you both in the community in which you lived, and as a result of your activities while on remand.

(7) You have never been to prison before and you have spent a long period of time on remand with these matters pending. When you are sentenced you will have to cope with the dislocation of moving to a prison.

(8) There has been significant delay between the time of commission of the offences and your sentence.

(9) You have excellent prospects of rehabilitation.

(10) Your disability means imprisonment is more burdensome for you than for others.

24 I accept all of these matters, with two qualifications. I do not consider your prior convictions to be "limited". I think your prospects of rehabilitation are very good, not excellent.

25 I was given little information as to the circumstances of your prior convictions. In relation to the convictions in 1987 your counsel submitted you were then only 20 years old. In relation to the later convictions it was put that they were related to your attempts to manage the pain of the injuries you suffered in the boating accident in 1989.

26 Whilst your prior convictions all concern cannabis, I do not consider that your nine prior convictions for trafficking can be described as "limited". You come before the court as a person to be sentenced for very serious drug trafficking who has prior convictions for drug trafficking.[4]

27 Submissions were also made as to the nature and duration of your offending. I have dealt with those in the separate ruling and have summarised my findings in that respect earlier. A submission was made that I should have regard to the maximum penalty under what was said to be an alternative Commonwealth offence in relation to count 1. I do not accept that.[5]

28 Both the offence of attempting to pervert the course of justice and trafficking in a large commercial quantity of methylamphetamine are very serious offences, as is indicated by the maximum penalties which apply to them.

29 In relation to the offence of attempting to pervert the course of justice, you assisted a man who had absconded while on trial, and who had been sentenced to a significant term of imprisonment, to evade capture and flee the country. You were part of an enterprise which challenged the capacity of the system to respond to a well resourced criminal organisation. As a result of your efforts, with others, that challenge succeeded for a time. General deterrence is very important in that context.

30 In relation to the trafficking, you were trusted by Mokbel to handle and deal with substantial sums of money and quantities of drugs. After the arrest of your brother you played an important role in relation to both the production of the methylamphetamine and its distribution. General deterrence is most important in relation to that offence as well.

31 Whilst your prospects of rehabilitation are very good, specific deterrence is also important. Your attitude and activities while on remand have been exemplary, but your nine prior convictions for cannabis trafficking cannot be ignored.

32 I have considered current sentencing practices and have had particular regard to the sentences imposed upon others involved in your offending conduct.[6]

33 On the count of attempting to pervert the course of justice I sentence you to be imprisoned for 8 years.

34 On the count of trafficking in a large commercial quantity of methylamphetamine I sentence you to be imprisoned for 7 years.

35 On the count of dealing with the proceeds of crime I sentence you to be imprisoned for 2 years.

36 On the count of possession of cannabis I sentence you to be imprisoned for one month.

37 On each of the counts of possession of an unregistered category A longarm firearm I sentence you to be imprisoned for seven days.

38 I direct that the sentence on count 1, attempting to pervert the course of justice, is the base sentence and I direct that 3 years of the sentence on count 2 be served cumulatively upon the sentence on count 1. The other sentences will be served concurrently.

39 This makes a total effective sentence of 11 years. I direct you are to serve a period of 8 years before becoming eligible for parole.

40 I direct that the period of pre-sentence detention, being 1552 days be reckoned as having been served.

41 Pursuant to s 6AAA of the Sentencing Act I state that the sentence and the non-parole period that would have been imposed but for the plea of guilty is a total effective sentence of 14 years with a non-parole period of 12 years.

[1] [2011] VSC 405. The parties were given the opportunity to make further submissions after considering that ruling. They each advised they did not wish to do so.

[2] It was accepted by all counsel that s 73(1)(b) of the Drugs Poisons and Controlled Substances Act 1981 applied.

[3] In a written submission handed up on 29 June 2011 it was suggested there were no relevant prior convictions. In oral submissions they were described as limited.

[4] It was not submitted that Elias is "serious drug offender" within the meaning of s.6B of the Sentencing Act 1991.

[5] I refer to footnote 2 in R v Pantazis [2011] VSC 54. All that was put here was that I should take the maximum of 5 years under s 43 of the Crimes Act 1914 (Cth) into account.

[6] Rizzo v The Queen [2011] VSCA 146; DPP v Mansour [2008] VSC 226; R v Benedetti [2009] VSC 8; R v Ferraro [2009] VSC 121; R v Saro [2009] VSC 569; R v Issa [2009] VSC 633; R v Ryan [2009] VSC 631; R v Tricarico [2011] VSC 53; R v Nissirios and Warfe [2009] VSC 129; R v Pantazis [2011] VSC 54; R v Zeidan [2009] VSC 137. The co-offender whose offending is closest to Elias is his brother Chafic Issa. Issa is three years older than Elias. His offending in relation to the trafficking and dealing with the proceeds of crime was more serious in that the evidence establishes (or it was accepted) that he personally dealt with greater quantities of cash and drugs over a longer period of time. On the other hand, he had no prior convictions.

On the trafficking offence I have had regard to Sentencing Snapshot No 102 published by the Sentencing Advisory Council in June 2010.

On the offence of attempting to pervert the course of justice I have had regard to the cases referred to in footnote 3 in R v Pantazis [2011] VSC 54.