R v Issa [2009] VSC 633

Supreme Court of Victoria|2009-11-24|Before: KING J

Attempt to pervert the course of Justice, Traffick large commercial quantity, dealing with proceeds of crime - Large commercial enterprise "the Company". Twelve years and six months, minimum eight years and six months.

1 Chafic Issa, you have pleaded guilty to one count (Count 1) of attempting to pervert the course of justice between 31 March 2006 and 5 May 2007; Count 2 trafficking a large commercial quantity of methylamphetamine between 30 July 2006 and 5 May 2007; Count 3 dealing with approximately $1,735,500, knowing it to be the proceeds of crime between 30 July 2006 and 5 May 2007; and, Count 4 possession of cannabis on 5 June 2007.

2 You were born on 10 January 1964 and you are now 44 years of age. You were aged between 41 and 42 at the time of the commission of the offences. The first count on the presentment relates to the assistance rendered by you to Mr A in assisting him to flee from the jurisdiction and harbouring him in a holiday house at Bonnie Doon. Counts 2 and 3 relate to your involvement in a drug trafficking organisation of which Mr A is alleged to be the principal.

3 The Crown in this case tendered and read to the court an opening of some 30 pages. I do not intend to repeat all of that material but will try and summarise further what it is that is put before the court as to your involvement. The maximum penalties for the offences you have pleaded guilty to are in relation to Count 1 attempting to pervert the course of justice - 25 years; in respect of Count 2 trafficking in a large commercial quantity of methylamphetamine - life imprisonment; Count 3 dealing with the proceeds of crime - 15 years imprisonment; Count 4 the possession of cannabis - as it was for personal use, a fine.

4 In relation to the drug offences, you, together with at least nine other men, were involved in the activities of a large illicit drug trafficking enterprise known as "the Company". The Company was involved in the manufacture and distribution of very large quantities of methylamphetamine, as well as other matters which do not concern you, together with money laundering. The Company was run allegedly by Mr A from 1 January 2006 until his arrest in Greece on 5 June 2007. Mr A exercised control over various aspects of the Company including directly and personally issuing orders to various people involved in the Company.

5 You were one of the people who would be described as a confidant of Mr A. The persons involved in this Company were Mansour and Rizzo who have been described as the right and left hand man in the Company. Both would speak to Mr A on a regular basis, Mansour more so than Rizzo and they would receive and act upon the instructions of Mr A. They were responsible for controlling the activities of the Company, particularly while Mr A was out of the jurisdiction and living in Greece. They were also directly involved in the money laundering, methylamphetamine manufacturing, preparation and distribution and would give orders and directions to others. The other persons involved were Christopher Ferraro who provided the safe houses to store the large quantities of drugs, chemicals and drug money, he also acted as a courier; George Elias who was a courier and manufacturer of speed, also a confidant of Mr A, and your younger brother; David Tricarico who manufactured the principal precursor chemical as part of the speed manufacturing process; Robert Benedetti who supplied cocaine to the Company; Jamie Saro who provided an on-call service for the safe storage and delivery for drug trafficking paraphernalia in 2007, he also booked hotels used by company members to cut and package drugs; and, finally, Andrew Ryan one of the most significant customers of the company for speed and a person who assisted in correcting problems as they developed within the speed.

6 You were one of the four people to whom Mr A issued orders and directions, the others being your brother George Elias, Bartholomew Rizzo and Joseph Mansour. The manner in which the Company was organised was that, in January 2006,Mr A guaranteed for himself a market for the sale and distribution of methylamphetamine by setting up a network which ultimately became known as the Company in about July of 2006 and he sold to that group, through a middleman, who was known as "Freddie" being Abdallah Radi. The methylamphetamine was manufactured. The Company organisation was operated by Mansour and Rizzo with the assistance of others from time-to-time who cut, repackaged and on-sold the methylamphetamine to the various other dealers or users down the line. The cost of the methylamphetamine sold by Mr A to the organisation and the moneys paid to or on behalf of or for the benefit of Mr A in payment for the methylamphetamine was recorded on the "Raymond Weil" spreadsheet or as it was otherwise known the "bill". This document was first produced in about early July 2006 and was kept updated regularly by Rizzo until the arrest in June 2007.

7 The Company was run as if it was a legitimate business in that they manufactured or bought product, being different kinds of drugs, monitored the quality of the product, stored it, cut, repackaged, marketed and kept a book of account. The Crown say that both Rizzo and Mansour received and acted upon the instructions of Mr A, through a telephone that was designated as safe. Rizzo and Mansour shared possession of that safe phone. The moneys owed by the Company to Mr A, for the purchase of the methylamphetamine, was either paid directly to Mr A, or disbursed as directed by him. Mansour and you directly distributed moneys realised from the activities of the Company to Mr A's interests, including Mr A's immediate family and associates. This included moneys that were paid out on behalf of Mr A in relation to his escape from Australia.

8 During the period, 1 January 2006 to the 5 June 2007, the Company was responsible for the distribution of at least, in excess of, 47 kilos of methylamphetamine with a wholesale value of approximately $4.7m, as well as cocaine and MDMA, which have no relevance to you.

9 The members of the Company were, as described in the opening, "very police savvy", utilizing tools used by criminals to disguise their involvement, such as safe phones, anti-surveillance techniques, safe houses, false versions, hire cars, change over of mobile phones on a regular basis and things of that nature.

10 The manner in which this Company's activities came to the knowledge of the police was, an approach by an employee of the Company, who was referred to as registered human source 30:30. He approached the police in April of 2007 and by May of 2007, was actively deployed by the police, to gain evidence and intelligence relating to the activities of the Company. Utilising 30:30, and undercover covert police operatives, the police were able to identify the persons involved and to, ultimately, effect the arrest of the members of the Company, including Mr A, on 5 June 2007.

11 The Crown state that you took over the role of Freddie in July of 2006. Freddie was the person who sold and delivered to Mansour and Rizzo the drugs and collected the cash from them for Mr A. You were also known by your accomplices as "Beanie". Your involvement with the organisation continued until 5 May 2007, at which time you were arrested. From the time of the commencement of the Company and its activities, Freddie had been the person who sold and delivered to Mansour and Rizzo the drugs and collected from them, the cash, being the proceeds of the trafficking enterprise. In July 2006, in a phone call organised by Freddie, Mansour spoke to Mr A, who was at that stage a felon on the run from the police. Mr A requested that Mansour provide him with $100,000 cash in a weeks time. A week later, you drove Mansour to an area near Bonnie Doon. Your brother, George Elias, appeared with Mr A from the bush, Mansour gave Mr A the money and Mr A then informed Mansour that you would be taking over Freddie's role in the drug trafficking enterprise. He specifically directed Mansour not to give Freddie any more money, to cut him out of the enterprise and to hand the money over to you, which was to be passed on to the old man.

12 On the drive back to Melbourne, you confirmed to Mansour that you were his new point of contact and that if he needed speed, he should now contact you. You were introduced to Rizzo that same day, and Ferraro a short time later. New mobile phones were organised, so that the four of you could communicate, and it was at that stage that this drug trafficking group became what was called "The Company".

13 The manufacturing of methylamphetamine was a two-stage process: P2P or Phenyl-2-Propanoane was manufactured by Max, who is now deceased. That role was taken over by Max's son and at a later stage David Tricarico. The process is that, they would chemically convert Phenylacetic acid into the P2P, that would then be delivered to Rizzo or Mansour, for transfer to yourself and your brother Elias. It was the role of Elias, to perform the final stage of the manufacturing process, which was converting the P2P into methylamphetamine. A process known as "gassing". Once the gassing had been completed by your brother, you would then deliver the finished product to Rizzo, Mansour or Ferraro for safe keeping or distribution. Analysis of the Raymond Weil, identified you, as having moved 73.5 pounds (33.4 kilograms) of methylamphetamine, which was the total of the speed recorded as having been received into the Company, from 30 July 2006 until 5 May 2007. You also assisted in the collection, movement and delivery of chemicals on behalf of the Company. The Crown gave two examples in the opening - one - which related to 200 litres of acetone and one - related to $625,000 of Phenylacetic acid delivered by Mr A's brother, Horty.

14 During the period of activity of the Company, the amount involved to purchase the methylamphetamine from Mr A, was in excess of $4.2m, which amount was paid either directly to Mr A, or for the benefit of Mr A. The Crown state that, the arrangements for the distribution of moneys to Mr A were many and varied. Some were the subject of various transactions at different financial institutions in and around Melbourne and overseas, in that large amounts of money were in fact directly transferred to bank accounts in Greece. Large sums of money were also laundered and paid to Mr A's interests in Victoria and other moneys paid to his family and associates. One of the means of distributing money to Mr A was, to give the cash to you. You collected large amounts of cash from Mansour, Rizzo and Ferraro.

15 The Raymond Weil indicates that, you collected and moved $1,304,500 on the instructions of Mr A. In addition to that, when you were arrested by police on 5 May 2007, you had in your possession just under $500,000 in cash, which was money that was going to be delivered to Mr A.

16 The events leading to your arrest in early May were that on 3 May you provided 3 pounds of methylamphetamine to Rizzo, at a pre-arranged location near a phone box in Box Hill. The police had intercepted a series of telephone calls involving Mansour, Rizzo and yourself in relation to this exchange. After the exchange, you and Mansour confirmed the delivery by calling Rizzo and made enquiries about the quality of the amphetamine, so that you could inform Mr A. In coming days arrangements were made between Mansour, Rizzo, Ferraro and yourself for them to deliver $500,000 cash to you, being a payment for Mr A and for you, to hand over further drugs. Rizzo collected the cash, and, at around 4 pm on 5 May, you were handed the money in a shopping bag. You handed Rizzo two pounds of amphetamine and your vehicle was, shortly thereafter, intercepted by police in Burwood. You were found in possession of the plastic shopping bag and it contained $499,950 in cash. Numerous calls were then made between Mansour and Rizzo and then Rizzo and Mansour and Tricarico, attempting to locate yourself and your brother. Over the following weeks Mansour finally confirmed that you had been arrested by the police and the money seized. A further $500,000 cash had to be located for Mr A, and this was ultimately done around 8 May.

17 The police executed a search warrant at your residence on the day you were arrested, on 5 May. They saw, but did not seize, two 25 kilo gram bags of caustic soda in the garage, they were later seized on 5 June, together with 2.1 grams of cannabis.

18 You were, as I said, arrested on 5 May 2007 and released on bail. You made a no comment interview and you were re-arrested on 5 June 2007, when all the other co-offenders were arrested. On 6 June, you again made a no comment interview, in respect of the matters, apart from admitting the cannabis was yours. These are the matters relating to Counts 2 and 3 on the presentment, as well as the possession of cannabis.

19 In relation to the count of attempting to pervert the course of justice, you, together with at least seven others, assisted Mr A in absconding from Victoria, thereby impeding his arrest and the punishment, that had been imposed upon him by the Supreme Court on 31 March 2006. The other persons alleged to have been involved are - Byron Pantazis, Foula Pantazis (the wife of Byron Pantazis), George Elias - your brother, Angela Nissirios (who is the sister of Foula Pantazis), Yvonne Warfe (who is the daughter of Pantazis), Youssef Zeidan (a long time family friend of Mr A and his family), Yvette Zeidan (who is the 55 year old wife of Youssef Zeidan and also a long time friend of Mr A and his family). In short compass, in relation to the assistance given to Mr A, the circumstances are, that at some time after his failure to appear in March 2006, Mr A hid out at a rural property near Bonnie Doon, which was owned by you and your brother Elias. Mr A, through others, then purchased the vessel Edwena from New South Wales, which was transported by road to Western Australia. The night before travelling, Mr A came and stayed at the Zeidan's property in rural Victoria. The next day Mr A, in the company of and being assisted by you, Pantazis, Warfe and your brother Elias, travelled by road from Melbourne to Fremantle in Western Australia, over a period of some days, in two vehicles.

20 Mr A through the assistance of others, including Pantazis, Warfe, yourself and your brother Elias, modified the boat Edwena, so that it was capable of long distance international sea travel. Mr A then, with the assistance of others, travelled by sea from Western Australia to Greece, by the Suez Canal and lived there, in Greece, until his arrest by the police on 5 June 2007.

21 Mr A's ability to exist as a fugitive, to escape on the Edwena and to survive well in Greece, was due to the trafficking of the Company. Mr A had been tried and convicted of the offence of importation of a trafficable quantity of cocaine. He had failed to appear in court on 20 March 2007, the trial continued in his absence, as did the sentence and he was convicted and sentenced to 12 years imprisonment, with a minimum of nine years.

22 Mr A's failure to appear to answer his bail resulted in extensive media coverage in both the print and the television media. A reward of a million dollars was offered for any assistance that would lead to the apprehension of Mr A, which attracted again very significant media attention. The purchase of the motor vessel Edwena, the transport of it to Western Australia and the refitting of the vehicle to enable it to do international travel, required substantial outlays of money. In relation to this trip to Perth, you took an active part. On October 19 2006 you collected a hired Maui campervan from Braybrook, which had been booked in the name of your sister, Paula Smarelli, and you, in fact, were the nominated driver. The vehicle was returned on 2 November in 2006. The cost of the vehicle hire was $4000 plus and you paid that, using a MasterCard, in the name of Josie Taleb.

23 You and your brother Elias, met up with Mr A and the others, as they were driving towards Adelaide. You booked accommodation in South Australia for all the people travelling, you paid for it in cash, but gave your own name and address. You did the same in Western Australia in Norseman, once again paying in cash, but giving your own name and address. You and your brother were the people who would go out and obtain food for Mr A. You arrived in Perth on 23 October 2006. The boat, Edwena, did not leave until 11 November 2006. You assisted your brother Elias in going to order items and equipment for the boat, you collected receipts for all of the expenditure, helped to buy food in bulk and, according to the statements of witnesses, you spent a considerable amount of time with Mr A during that period.

24 It is not known, when or how, you or your brother Elias, left Perth or returned to Melbourne. It is known, that you were still there on 2 November, as was your brother.

25 Sometime in November 2006, you met with Mansour and informed him that, the information you had received from Pantazis was, that Mr A was fine, but the journey was taking longer than expected.

26 After Mr A had left Australia, moneys were deposited into Greek accounts for the benefit of Mr A. Cash was exchanged for Euros and sent to Mr A, through other people, all of which came from the profits of the drug trafficking.

27 In February 2007, you met with Mansour who handed to you $120,000 in cash, some of it in Euros. Mansour also gave you two passports, a valid and current passport of 30:30 and Mr A's current passport. You told Mansour that he could not be late for this meeting as you had to get the passports to Pantazis as soon as possible, because Pantazis was going to deliver them personally to Mr A. When arrested, a forged passport based upon these documents was found on Mr A in Greece. In relation to your position in the hierarchy, the Crown have put forward certain submissions. I need to take into account what has been put forward by your counsel, which, whilst not necessarily relating to your position in the hierarchy, relates to your involvement in the offending overall. Upon your instructions, your counsel commenced the plea, on your behalf, by likening you to the undertaker in the Godfather film, who is obligated to Don Corleone as a result of a favour that Don Corleone had granted to the undertaker, and that this favour was called in and that that was how you became involved with Mr A and this enterprise.

28 Your counsel informed the court that in 2003, in November, you were working security at a nightclub in Chapel Street, Prahran. You were the security manager. You were assaulted by two men, who were refused entry to the premises. You were king hit and, according to your counsel, suffered a blow out fracture to the right orbit of your eye. Your glasses shattered, which lacerated your eyebrow and upper and lower eyelids. You were hospitalised and, after being released from hospital, three days later, you made a statement to the police. The man who assaulted you was arrested and charged. You instructed your counsel that after this had occurred you were harassed, threatened and intimidated by the alleged offenders to drop the charges, which made you very anxious. The nature of the threats were that you were called on the telephone, people approached you at work on a few occasions and, according to the instructions you gave to your counsel, there were threats against your wife and children. You were being followed by people and you became more and more stressed.

29 What was put forward by your counsel in relation to this was that one day you were telling a friend of yours about your problems relating to the harassment and he told you, he knew someone who could help you. That someone was Mr A. Mr A told you that all you had to do was to change your statement and that would stop the threats and harassment. The change you needed to make was a statement of no complaint. As a result, in about June of that year, you made two statements to police in which you indicated that you did not see who hit you and you could not give evidence about who it was, and, as a result, the threats stopped. That was in June of 2004.

30 The next contact, according to your instructions to your counsel, which you had with Mr A was that at a time in 2006, sometime after Mr A had failed to answer his bail in the Supreme Court, you were contacted by Abdullah Radi, also known as Freddie, who told you that you owed Mr A a favour, that Mr A needed somewhere to stay and that he was calling in that favour. You instructed your counsel that at that time you felt somewhat helpless to refuse, you spoke to your brother George Elias and you jointly decided that he could stay up near Bonnie Doon at your property, which was jointly owned.

31 I indicated to your counsel, that I did not accept, that that was the basis of your involvement and gave him an opportunity to consult with you and to present evidence before me, if you wished me to act upon that basis. Your counsel took the opportunity, the matter was subsequently adjourned and no further evidence was led before me. No further explanation was provided by counsel as to your involvement, or how it came about and counsel declined a number of invitations to put before me, any explanation at all, as to your involvement and how it came about, including this initial explanation and to expand upon it. All of those matters were declined.

32 In relation to my reasons for not accepting what has been put forward, it is, in my view, so inherently unreliable and improbable that Mr A, not having spoken or dealt with you in any way, except for advising you in June of 2004 to put in a statement of no complaint, would then actively seek you out, a law-abiding person with no criminal history, to be the person to assist him to hide and then flee the jurisdiction. Equally, it does not explain in any way your brother George Elias' involvement, or the involvement of either of you in travelling across the country with Mr A, in a position that would indicate a close friendship and very close ties, not to mention the trusted nature of your work within the Company and liaison with Mr A.

33 Accordingly, I reject the limited explanation that has been put forward on your behalf and accept that I have no knowledge of how you came to be involved in this criminal activity at all, and certainly nothing that reduces, explains or mitigates your criminality.

34 In relation to your personal circumstances, you are now 45 years old and have no prior criminal history. You migrated to Australia from the Lebanon in 1977 with your mother, your father, three sisters and your brother, you were then aged 13. Your father determined to change the family name, at a stage when you were about 16 and you, kept the original family name, which explains the different names of yourself and your brother, George Elias. You are the second eldest of the family and originally migrated to Sydney.

35 Your counsel said that you were a child soldier during the war in Lebanon and you did that between the ages of 10 and 13, being in the Christian Militia in a role of defending your village. You commenced school in Year 7 at De La Salle College in Sydney and repeated Year 7 again. You completed Year 8 the next year and the family moved to Melbourne. Your father was a violent alcoholic and a significant gambler. Your mother received a workers' compensation claim payout some three years after they moved to Sydney and the family moved to Melbourne, your father having purchased a milk bar in Carnegie, as a result of your mother's payout.

36 As the eldest son, you were taken out of school at the age of 16, so that you could help run the milk bar. Your father was rarely home. Your mother did not speak English, so you had a significant role in the milk bar. There was physical and mental abuse provided by your father, because he would get drunk and often explode into violence in the middle of the night. He demonstrated a great deal of violence towards your mother and he would take the proceeds of the shop's takings from the till and use it to gamble. By the time you were about 21 the business had failed.

37 You had commenced work at the age of 18, on the afternoon shift at the General Electric factory at Notting Hill, working until midnight and assisting in the shop, in the morning, prior to attending your job. At the age of 20, you got a job in the security industry, doing nightclub work. Once the milk bar business actually floundered, your mother left your father and they were eventually divorced. As the eldest son, you took on the responsibility of caring for your mother and family.

38 At around the time that the milk bar failed, the GE Factory in Notting Hill also closed, and you then went to work full-time on security work, all of which was nightclub security work. At the age of 27 you married your wife Helen, who is Australian born of Lebanese parents. You have two children, a son aged 15 at high school and a daughter aged 9 in primary school. Your mother also resides with your family, as she has done since the break up with her husband. She is currently 73, and in the late-90s she suffered with bowel cancer and in the early part of 2003 she had breast cancer. Your wife does not drive.

39 As I indicated, you worked within the security industry for a lengthy period of time. At 28 you worked at the Meridian Hotel, eventually becoming the security manager and ultimately received a position with the Victorian government in security, which meant effectively that you worked at Parliament House and in and around government offices. You did that for two or three years, but then left to go out on your own, in search of better money. You were 35 at that time. You went back into the night-time security work at nightclubs, as a sub-contractor. You also commenced working as a truck driver, courier, to supplement your income, and drove for Asmar Transport. You claim to neither smoke nor drink, but do indulge in the use of cannabis occasionally, as a relaxant after work, which is what the cannabis located at your premises related to.

40 I received a number of written testimonials, which all indicated that you were a good, decent, hardworking person, who had not been in trouble. Whilst you were employed by the Victorian government you became involved in the Australian Army Cadet Corp, providing guidance and leadership to your men aged between 13 and 18. Your commanding officer, Lieutenant Colonel Martini, has also written a testimonial on your behalf and, like the other matters, I take that into account. Your involvement in the Cadet Corp ceased in about 2004.

41 On the evidence available before me, it is clear that the role you had in relation to this matter was significant. You were clearly a close confidant of Mr A, although perhaps not as close as your brother George Elias, but you were trusted to handle and deal with millions of dollars, large quantities of drugs and personal information relating to Mr A. You and your brother accompanied him on the trip across the Nullarbor to Perth. You stayed with him for many days prior to the boat being ready to leave the country and he put you in a position in which he placed great trust and faith in you.

42 Your counsel submitted that there was nothing to indicate that you had in fact received any money that could be described in any way as substantial and that appears to be correct. He does concede, however, that you were expecting to be financially compensated.

43 The factors in your favour, which I take into account in mitigation of penalty, are your plea of guilty, the relatively early stage at which it was made, your lack of prior convictions, and your family situation.

44 Your role was, however, a very important one, you were one of a handful of trusted confidants of Mr A. Your assistance was one of the factors that enabled him to leave the country and to maintain and afford his life on the run, whilst living in Greece. All of this did significant damage to the interests of justice, and caused some disquiet in the community, about the granting of bail to persons charged with offences of this nature, and their ability to avoid detection.

45 The community and the legislature expect that persons who are involved in such high level criminality will be justly and appropriately punished and others deterred by that punishment from being tempted to become involved in such crimes. The maximum penalty for the offence is a guide that the legislature provides to the court to indicate the seriousness with which offences of a certain type are viewed. There is no doubt that trafficking in large commercial quantities will usually attract a significant penalty, in that the maximum penalty for the offence is life imprisonment.

46 Whilst your plea of guilty is one that I accept merits a reduction in the sentence that would otherwise be imposed, as is required by the parliament, it does not, in my view, demonstrate any remorse for your involvement in these crimes. The version of events that you have advanced through your counsel is unbelievable and thoroughly contemptuous of the court, demonstrating a complete lack of remorse for your criminality.

47 In terms of the hierarchy of those involved in the offending, I have determined that whilst you are at a level lower than that of Rizzo, Mansour and Pantarzis (on the information currently provided) your role is still a very significant one, involved with dealing with very substantial quantities of drugs and money over the period of the offending and you are only one step below those persons.

48 Taking into account all of the matters to which I have referred as well as the principles of totality, just and appropriate punishment, deterrence both general and specific and the need to not impose a crushing sentence, I sentence you as follows:

• Count 1 - attempting to pervert the course of justice between 31 March 2006 and 5 May 2007; - you are convicted and sentenced to be imprisoned for 8 years

• Count 2 trafficking a large commercial quantity of methylamphetamine between 30 July 2006 and 5 May 2007 - you are convicted and sentenced to be imprisoned for 8 years

• Count 3 dealing with approximately $1,735,500, knowing it to be the proceeds of crime between 30 July 2006 and 5 May 2007 you are convicted and sentenced to be imprisoned for 4 years and,

• Count 4 possession of cannabis on 5 June 2007 - convicted and fined $300.

49 I direct that Count 2, the large commercial quantity trafficking, is the base sentence and I direct that 4 years of Count 1 and 6 months of Count 3 be served cumulatively upon each other and upon Count 2, making a total effective sentence of 12 years and six months imprisonment.

I direct that you are to serve a minimum of 8 years and six months before being eligible for parole.

Declare that a period of pre-sentence detention, being 903 (nine hundred and three) days be reckoned as having been served as part of this sentence.

Direct that this declaration and its details be entered into the records of the Court.

Subject to s 6AAA of the Sentencing Act declare that, but for your plea of guilty, the sentence imposed would have been on Count 1: 10 years, Count 2: 10 years , Count 3: 6 years.

Application for retention of forensic sample 464ZFB(1) is granted.

Disposal Order granted and Forfeiture Order granted

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