IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-01637

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
GEORGE EL SHEIKH		

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JUDGE:	HIS HONOUR JUDGE LAURITSEN	
WHERE HELD:	Melbourne	
DATE OF HEARING:	31 July 2023	
DATE OF SENTENCE:	5 September 2023	
CASE MAY BE CITED AS:	DPP v El Sheikh	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1594	

REASONS FOR SENTENCE
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Subject:		CRIMINAL LAW
Catchwords: 		Charges of trafficking in a commercial quantity of a drug of dependence, possession of a drug of dependence and dealing with property suspected of being the proceeds of crime – interception and search of vehicle where drugs and money located – example of serious offence – no criminal history – plea of guilty – evidence of remorse and rehabilitation – delay – youth
Legislation Cited:		Sentencing Act 1991 (Vic)
Cases Cited:		DPP v Gregory [2017] VSCA 151; Hogarth (2012) 37 VR 658; Rodriguez v DPP (Cth) (2013) 40 VR 436; Azzopardi v R [2011] VSCA 372; Boulton v R [2014] VSCA 342; Power v R (1974) 131 CLR 623
Sentence:		Total effective sentence 3 years and 3 months imprisonment. Non-parole period of 9 months imprisonment. 
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms N. Burnett	Office of Public Prosecutions	
			
For the Accused	Mr C. Mandy SC	Melasecca Kelly & Zayler	

HIS HONOUR:
Introduction
1	Mr El-Sheikh, I propose to sentence you to 3 years and 3 months' imprisonment and set a non-parole period of 9 months' imprisonment. I will declare your 64 days of pre-sentence detention as time served under my sentences. 
2	You pleaded guilty to a charge of trafficking in a commercial quantity of a drug of dependence, a charge of possession of a drug of dependence and the summary offence of dealing with property suspected of being the proceeds of crime. 
3	Circumstances 
4	At the time of your offending, you were 20, as was your co-accused, Fabio Perrone. 
5	On Monday, 8 July 2019, you were driving a car on Cumberland Road in Pascoe Vale. Mr Perrone was seated in the front passenger seat. He was the registered operator of the vehicle. 
6	At 5.20 pm, two police members intercepted the car. After speaking to both of you, one of the police members became suspicious. He requested both of you to get out of the vehicle, which you did. He searched the vehicle and in the rear driver's side located numerous empty bags and a red and white Coles supermarket shopping bag. 
7	The shopping bag contained five zip lock bags, each holding five zip lock bags, wrapped in tissue and containing a white powder. The shopping bag also contained a plastic bag containing 4 zip lock bags with writing on them. Those bags contained white powder and white blocks
8	The writing on the four bags said: 
(a)	bag 1: 184.3g MiH55; 
(b)	bag 2: 250 190g loose and 148.4g; 
(c)	bag 3: 85.7g Rep D; and 
(d)	bag 4: 57.3g Rep r. 
9	The meaning of some of the writing is unknown. 
10	You and Mr Perrone were arrested. The police searched you and found about $2,000 in cash in your front left pants pocket. This discovery constitutes part of the summary charge, a charge of dealing with property suspected to be the proceeds of crime. 
11	Further searching of the vehicle by the police disclosed: 
(a)	two zip lock bags containing 10 pills in each bag (20 in total); 
(b)	$5,000 in cash concealed in a box underneath the front passenger seat in an empty alcohol box. This is another part of the summary charge of dealing with property suspected to be the proceeds of crime; 
(c)	four mobile phones located in the centre console; 
(d)	a shopping bag containing numerous empty zip lock bags in the boot; and 
(e)	digital scales located in the spare tyre well in the boot. 
12	At midnight your home was searched by police members. They found a mobile phone in your bedroom and $10,000 in cash hidden inside a shoe inside the wardrobe of your bedroom. The moneys are part of the summary charge of dealing with property suspected of being the proceeds of crime.  
13	You were interviewed the next day, giving 'no comment' answers to the questions asked.  
14	Analysis of the powder revealed a total of 1.1 kilograms of powder which included cocaine. The bags were analysed in separate groups and contained the following approximate purity (in percentage terms) of cocaine: 
(a)	item 5: 67.9 grams of cocaine, 22 per cent; 
(b)	item 7: 148 grams of cocaine, 41 per cent; 
(c)	item 9: 125 grams of cocaine, 19 per cent; 
(d)	item 11: 55.1 grams of cocaine, 65 per cent; 
(e)	item 14 (combined): 140 grams of Cocaine, 63 per cent; 
(f)	item 16 (combined): 417.9 grams of cocaine, 71 per cent; and 
(g)	item 18 (combined): 111.8 grams of cocaine, 67 per cent. 
15	A large commercial quantity of a substance including cocaine is 1 kilogram. These circumstances constitute Charge 1, trafficking in a commercial quantity of a drug of dependence, being cocaine. 
16	The total weight of the pills was 5.7 grams, containing 3, 4-methyenedioxyamphetamine (MDA). More particularly: 
(a)	item 1 was 2.9 grams, containing MDA with a purity of 10 per cent; and
(b)	item 3 was 2.8 grams, containing MDA with a purity of 11 per cent. 
17	These circumstances constitute Charge 2, a charge of possessing a drug of dependence, being MDA. 
Criminal history 
18	You have no previous convictions or findings of guilt. In the material, there is a mention of an incident, involving criminal charges, which led to a diversion. In one of the mentions, you deny the circumstances of the offending. Since a successful diversion does not involve a conviction or finding of guilt, I will ignore that matter. 
Personal 
19	You are now 24. You were 20 at the time you offended. You were born and raised in Melbourne and are the youngest of four children. Your parents emigrated from Lebanon in about 1994. 
20	With the onset of puberty in Year 6, you became acutely conscious of your appearance in the form of excessive body hair. This led to relentless teasing and bullying by other students between the ages of 10 and 18. Your consciousness of your appearance has caused you not to form relationships with women until recently.  
21	You completed Year 12 with a modest ATAR score. You started a diploma of construction course but left after six months through lack of interest. For three months in 2018, you undertook a pre-apprenticeship course. You then worked in plumbing for six months and then in carpentry before resigning in March 2019 owing to the effects of your drug addiction. Until your arrest, your father gave you an allowance of $300 per week. 
22	Your association with substances started in 2018 with cannabis. It began at a social stage but quickly escalated to smoking the drug weekly. At the start of 2018, you used cocaine. Again, your usage started low but grew rapidly so that by February 2019, you were using a half to 1 gram of the drug every second day. You used this drug to give you confidence and feel accepted by others. You occasionally used ecstasy. You used alcohol excessively but in combination with cocaine.
23	Now, you are employed in your father's transport business. He owns four refrigerated trucks, of which you drive one. You work between 30 and 45 hours a week. According to your friend, Mark Pinti, you have assumed a leadership role in the business, striving to expand it. 
24	You have also bought a house with members of your family and have financial obligations under a mortgage. You no longer live at your parents' home.  The only reason you no longer live with your parents is you changed your bail address in order to bring yourself within the catchment of this Court's Drug Court Division. 
25	You are now in the early stages of a relationship with a woman. 
Psychologists 
Allen
26	Tracey Allen is a psychologist. She has counselled you. By 25 July 2022, you had seen her on 17 occasions, having started in January 2021. By then she had finished her treatment of you. She was pleased with your progress under her treatment. Provided you do not use substances, she believed you will remain offence-free. She noted, at that stage, you had not used substances for three years. 
Armstrong
27	Luke Armstrong is a consultant psychologist. At the request of your solicitors, he interviewed you on three occasions with the first in August 2019 and the last on 20 June 2023. His first interview was for the purposes of a bail application. 
28	In 2019, Mr Armstrong diagnosed you as suffering from a Stimulant Use Disorder, moderate to severe. Owing to your age, he did not diagnose you as suffering from a personality disorder although traits or features of it were present and he felt could it develop into a disorder if untreated. He recommended residential and outpatient drug and alcohol treatment as well as psychological treatment. In his last report, Mr Armstrong noted your involvement with the types of services he recommended.   
29	At your last meeting with Mr Armstrong, your mental state was stable, while noting the absence of a vacancy in the Drug and Alcohol Court increased the possibility of you receiving a sentence of imprisonment. To him, your understanding of what is necessary to avoid a relapse into drug usage was consistent with a person in the fourth year of his recovery from an addiction. But, for someone with your background, recovery can be a life-long endeavour.   
30	Mr Armstrong noted: 
(a)	you no longer associate with drug users; 
(b)	your mental state was stable. He placed a rise in a particular indicator as being due partly to your uncertain legal position and difficulties with relationships; and
(c)	although ceasing treatment in July 2022, he recommended the resumption of that treatment for another 12 months. 
31	Apart from pointing out the deleterious effects of imprisonment, Mr Armstrong said: 
'I would also suggest that Mr El-Sheikh's mental state is more vulnerable than the mental state of an offender who does not present with his complex dual diagnostic history. This would in my view make a sentence of imprisonment more arduous for your client than it would for an offender without his mental health profile.'
Treatment  
32	As I said, in 2019, Mr Armstrong recommended certain measures. Unlike many persons in your position, you have followed his recommendations to the letter. 
Habitat
33	Habitat Therapeutics operates a residential drug and alcohol rehabilitation programme. You entered the programme on 9 September 2019. In a report prepared after you had spent 74 of the planned 90 days, the author spoke of your honesty, open-mindedness and willingness to change. Your example to other residents was described as 'exemplary'.  
Brown
34	Amanda Brown is a drug and alcohol counsellor. She assessed you on the day of your arrest. Later, you entered and completed a residential rehabilitation programme of 90 days' duration. After your release from custody, Ms Brown started treating you on 13 January 2020. It ended on 25 May 2022. 
35	Ms Brown found you co-operative with her treatment. She believed you did not use drugs, as evidenced by repeated negative urine analyses.  Her conclusion was: 
'Subsequent of an acquisition of a considerable drug free status, he has now turned a corner, enjoying his drug free life. He presents as stable and settled in his newly developed lifestyle and is in good health. In short, he is happy and healthy and very pleased to be drug free.' 
References 
36	The letters of your sister, friends, sister-in-law were admitted into evidence, some were written this year and some, last year.  
37	Each asserts your offending is out of character while some attest to your remorse. All speak of the person they have known over the years. It stands in contrast with the person who committed these offences. 
Current sentencing practice   
38	Neither counsel referred me to comparable cases for the purposes of establishing current sentencing practices. That is understandable given the pronouncements of the Court of Appeal in the past few years. For example, that Court said in DPP v Gregory:    
'It would therefore be expected — and Parliament must be taken to have intended — that there would be a spread of sentences across the statistical range.  In particular, sentences well into double figures would have been expected for Commercial Quantity trafficking offences where one or more of the following features was present: 
•	the quantity involved approached the large commercial quantity threshold;
•	the offender was in charge of the trafficking business;
•	the business was conducted for a substantial period;
•	the offender pleaded not guilty; and/or
•	the offender had relevant prior convictions.'
39	The proposition as to quantity applies here but the other propositions are not established or do not apply.  
Discussion 
40	Each of the purposes of sentencing is relevant to you. My sentences should represent just punishment after considering the purposes of general and specific deterrence, denunciation, protecting the community from you and rehabilitation.  
41	The maximum penalties for these offences are: 
(a)	trafficking in a commercial quantity of a drug of dependence – 25 years' imprisonment;  
(b)	possessing a drug of dependence - 5 years' imprisonment; 
(c)	dealing with property suspected to be proceeds of crime - 2 years' imprisonment or a fine of 240 penalty units. 
Gravity
42	One of the things one wants to know is why you offended. This does not emerge directly in the material. You did not tell the police when they interviewed you. Apparently, you did not tell the psychologists or drug and alcohol counsellors who interviewed you. Admittedly, some of the interviews were conducted when your attitude to the charges was unknown and the interviewers possibly steered clear of the issue. Very possibly, this continued to apply in the later interviews. However, your counsel submitted two things: 
(a)	your possession was consistent with the movement of the cocaine from one place to another, on behalf of others and at a particular time; and
(b)	at the time you were significantly addicted and was being rewarded for your participation in trafficking by easy access to the drugs to feed your addiction, there being no evidence of sales of the drug by you.  
43	The material does not support any more serious allegation than those in (a). Your possession of the moneys, and your guilty plea to the charge relating to them, sits uneasily with the proposition of your reward consisting solely of receiving drugs to feed your addiction. Accordingly, I am satisfied your offending included an element of monetary reward.     
44	In assessing the gravity of your offending, the weight of the drugs in the trafficking charge plays an important part. The weight was near the threshold of a large commercial quantity for which the maximum penalty is life imprisonment. 
45	These considerations render this charge a significant example of a serious offence.   
Guilty pleas
46	An evaluation of the value of a plea of guilty involves when the plea was entered or, at least, an indication was given as to an intention to plead guilty. In your case, your intention to plead guilty occurred in December 2020 after a committal hearing. It was not an early plea of guilty, happening at about the mid-point of the proceeding, which starts with the laying of the charges and ends, theoretically, with a trial. 
47	A guilty plea means you have accepted your guilt for an offence. To others, especially those who know you well, this is an unequivocal acceptance of your responsibility for the particular offence. In some cases, people do not accept a person is guilty until he or she pleads guilty. This is so even though the person has been found guilty following the verdict of a jury.  
48	The fact of a guilty plea is usually a piece of evidence establishing your remorse. Along with the other evidence, I consider you are remorseful despite the delay in you indicating an intention to plead guilty. Your remorse is important because it shows a determination not to re-offend. Your sorrow extends to the effect on your family. In your words, 'they're all freaking out, and it's all my fault.' 
49	Your guilty pleas have the practical effect of assisting the criminal justice system in dealing with criminal cases. It removes your proceeding from the list of those requiring a trial. A jury trial is a time consuming and expensive exercise. You have created space for those proceedings which genuinely require a trial and avoided the need for witnesses to give evidence in this Court. 
50	Even though the problems caused by the virus to the criminal justice system have waned, they have not disappeared. The virus still disrupts the progress of trials in this Court. Even now, a guilty plea deserves a greater discount on sentence than would be the case in normal times. 
Delay 
51	You were charged on the day of your arrest. It took about 17 months to reach a committal hearing. You pleaded guilty on 27 July 2021, more than 2 years after your arrest. The plea hearing was adjourned several times. As your counsel put it, you are not responsible for much of the delay following your arrest. The effects of the virus have played a large part in the delay. In an ideal world, you should have been sentenced within a year of the commission of the offences. Owing to the virus, delays of such length are not uncommon, even for someone in custody. 
52	Since your release on bail, you have sought to understand the issues underlying your offending and address them. You have largely rehabilitated yourself.  
53	In Rodriguez v DPP (Cth), the Court said: 
'Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one's head during the period of delay is akin to punishment in itself.'
54	These ways apply to you. You have used the time profitably. You have sought professional treatment for your drug addiction and underlying psychological issues. You have stopped using drugs. You have obtained worthwhile employment. You have bought a property with others. You have formed a relationship. For four years, you have obeyed the conditions of your bail and have not re-offended. You have matured. To a large extent, you have reformed yourself. This lessens the need for a sentence which deters you from further offending and protects the community from you.    
55	You have lived with the threat of imprisonment hanging over you. Contrary to your counsel's submission, it is unlikely the possibility of youth detention was a realistic option because of your age at the time of offending and the normal delay to finalisation of proceedings. However, the possibility of a drug treatment order was explored. This involves the only remaining form of suspended sentence under Victorian law. In his last report, Mr Armstrong directed some of his attention to this disposition. Owing to the limited number of places on the scheme in this Court, it was unavailable to you.
Youth 
56	You were youthful at the time of the offending and are still young. It requires careful consideration before one sentences a person of your age to a term of imprisonment. Why this is so was explained by Redlich JA in Azzopardi v R. I will quote passages from his Honour's judgment. They are lengthy but I will not summarise them for doing so tends to undervalue the strength of the propositions. Those passages apply to you:  
'There are a number of considerations which underlie the general primacy of an offender's youth as a sentencing consideration.  First, young offenders being immature are therefore "more prone to ill-considered or rash decisions".  They "may lack the degree of insight, judgment and self-control that is possessed by an adult". They may not fully appreciate the nature, seriousness and consequences of their criminal conduct…  
'Secondly, courts "recognize the potential for young offenders to be redeemed and rehabilitated". This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour.  No doubt because of this potential, it has been stated that the rehabilitation of young offenders, "is one of the great objectives of the criminal law". The added emphasis for the purposes of sentencing on realisation of a young offender's potential to be rehabilitated is further justified because of the community's interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending…  
'Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender's prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed.  Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated.  The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community'.
57	Your involvement in the drug trafficking was ill‑considered for you lacked the degree of insight, judgment and self-control possessed by an adult. The delay has enabled you to gain those attributes.  
58	From the perspective of your continued rehabilitation, imprisonment may be counter-productive. It depends on your ability to ward off the corrosive effects of being in custody. Sending you to prison for the first time is due to the influence of the sentencing purpose of general deterrence. A person cannot traffick drugs of dependence as you have done and not expect a term of imprisonment.   
Rehabilitation 
59	In the intervening period, you have taken great steps to rehabilitate yourself. I would not go as far as your counsel and describe your rehabilitative efforts as 'hardly be more exceptional'. However, the efforts and results are impressive. I agree you are most unlikely to re-offend in this or a similar way. 
60	Your counsel argued in favour of a community correction order. Not unnaturally, he relied on the observations of the Court in the case of Boulton v R. He acknowledged the hurdle to that type of sentence presented by s5(2H) of the Sentencing Act 1991. I will explain. 
61	Trafficking in a drug of dependence of a commercial quantity is classified as a category 2 offence under the Sentencing Act. Section 5(2H) requires a court to impose a sentence of imprisonment for that offence unless an exception is established. The sub-section sets out four exceptions. You rely on the exception contained in s5(2H)(e). This is an extraordinarily narrow exception. First, it requires the existence of substantial and compelling circumstances that are rare and exceptional which justify not sentencing you to a term of imprisonment. Second, s5(2HC) and s5(2I) tells a court what it must pay regard to in determining whether the circumstances are substantial and compelling. It also says what a court cannot have regard to. Relevantly, I cannot have regard to your previous good character, an early plea of guilty or your prospects of rehabilitation.     
62	Those circumstances I can consider do not satisfy the test posed by s5(2H). The delay is long but, unfortunately, not rare and exceptional. As I said earlier, there are cases of similar delay even where the accused person was in custody and not on bail as you are. Eliminating your prospects of rehabilitation removes one of your strongest points. Your youthfulness, then and now, does not bring you within the test. Similarly, the combination of these and other factors do not satisfy the test.  
63	There is one other matter. For a category 2 offence, in determining whether there are substantial and compelling circumstances, a court must regard general deterrence and denunciation as having greater importance than the other purposes of deterrence. Once the test is not satisfied, I do not consider this stricture then applies to your sentencing, which must proceed normally. 
Non-parole period 
64	Sentences of imprisonment of two years or more require the fixing of a non-parole period. In Power v R, the Court said: 
'…the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention'.  
65	I consider the non-parole period for you should be short. General deterrence and denunciation require you to serve a period of imprisonment, but the other sentencing purposes persuade me to set a short period of nine months.   
Community corrections order 
66	You were assessed as suitable for a community correction order. You were also interviewed by a registered nurse from Forensicare's Mental Health Advice and Response Service. In light of what I have said about s5(2H) of the Sentencing Act, a community correction order is not a sentence I can impose. However, the reports re-affirm you are a very different person from the person you were when offending.   
Sentence 
67	On Charge 1, a charge of trafficking drugs of dependence in a commercial quantity, I sentence you to 3 years and 3 months' imprisonment. 
68	On Charge 2, a charge of possession of a drug of dependence, I sentence you to one month's imprisonment.  
69	On the summary charge of dealing with property suspected of being the proceeds of crime, I sentence you to 3 months' imprisonment. 
70	The sentences on Charge 2 and the summary charge are to be served concurrently with themselves and the sentence on Charge 1. The total effective sentence is 3 years and 3 months' imprisonment. I will fix a non‑parole period of 9 months' imprisonment. 
71	You were arrested on 8 July 2019 and released on bail on 9 September 2019. There are 64 days of pre‑sentence detention, which I declare as time served under my sentences.  
S6AAA
72	Instead of pleading guilty to these charges, if you had pleaded not guilty but had been found guilty after a trial, I would have sentenced you to a total effective sentence of 4 years' imprisonment and fixed a non-parole period of 18 months' imprisonment.  
Forfeiture and disposal orders 
73	I will make the forfeiture and disposal orders in the terms sought. 
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