CDirector of Public Prosecutions v Taleb

[2024] VCC 260

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-02321

DIRECTOR OF PUBLIC PROSECUTIONS

(CTH)

v

KHALED TALEB

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2024
DATE OF SENTENCE:	8 March 2024
CASE MAY BE CITED AS:	CDPP v TALEB
MEDIUM NEUTRAL CITATION:	[2024] VCC 260

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Intentionally Damage Property; Make Threat to Kill; Aggravated Burglary; Theft; Robbery; Commit Indictable Offence whilst on Bail; Unlawful Assault; Resist Emergency Worker on Duty

Legislation Cited:      Sentencing Act 1991 (Vic); s16(4) of the Sentencing Act 1991

Cases Cited:

Sentence: Total Effective Sentence of 2 years imprisonment with 21 days reckoned as served – Summary Charge 9: Convicted and Fined $200 – Summary Charges 10,11 and 13: Aggregate sentence of 2 months imprisonment imposed concurrent sentence imposed on indictment – S6AAA: But for plea of guilt, TES of 3 years imprisonment with 2 year non-parole period structured in a way where there would have been a 3 month increase on the Commonwealth Sentence

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions (Cth)	Ms N. Burnett	Office of Public Prosecutions
For the Offender	Mr S. Kenny	Theo Magazis Lawyers

HER HONOUR:

1Khaled Taleb, also known as Jacob Rohen, you have pleaded guilty on indictment to charges of intentionally damage property, make threat to kill, aggravated burglary, theft and robbery.

2You have also entered guilty pleas to related summary offences of commit indictable offence whilst on bail, two charges of unlawful assault and one charge of resist emergency worker on duty.

3In sentencing you for your crimes I am obliged to consider the maximum penalties for each of the offences you have committed as they reflect the seriousness with which Parliament regards each offence. Those maximum penalties are as follows:

·     Aggravated burglary, 25 years' imprisonment;

·     Robbery, 15 years' imprisonment;

·     Intentionally damage property, make threat to kill and theft, each carry 10 years' imprisonment;

·     Resist arrest, 6 months' imprisonment;

·     Unlawful assault and commit indictable offence whilst on bail, 3 months' imprisonment.

4The circumstances of your offending were set out in a document entitled 'Prosecution Opening for Plea' dated 29 January 2023.  This is an agreed document and represents your acceptance of each of the elements of the offences to which you have entered your guilty pleas, as well as the factual basis on which I am to sentence.

5I will refer to the facts only briefly but I have had recourse to the complete document.

6At 9:40 pm on 17 May 2019, you attended at Stewart Grove in Campbellfield. Your victims, Vicky Lemillour and Anis Yanni, and four children aged between one and seven years, were present at their home. Mr Yanni and Ms Lemillour you were known to you.

7With an unknown object, you smashed holes in the passenger side windows and rear windscreen of a vehicle owned by Kemal Sevinc parked outside a neighbouring premises.

8You then parked your vehicle behind Mr Yanni and Ms Lemillour’s vehicle in their driveway. Using an unknown object, you smashed the rear window and all driver-side passenger side windows of that vehicle. The damage to both vehicles forms the basis for Charge 1, intentionally damage property, which is a rolled-up charge encompassing the damage to both motor vehicles.

9Mr Yanni opened the door to see what was happening and saw you. When you saw him you ran in his direction and called out 'You’re dead, man! I’m gonna kill you and your missus! I’m not gonna kill the kids.' These facts form the basis for Charge 2, make threat to kill.

10Scared, Mr Yanni went back inside and closed the door. You smashed a lounge room window causing glass to fall near the children.  Ms Lemillour retreated with the children into the laundry.

11Using an unknown object you smashed the front wooden door and called to Ms Lemillour, 'Let me in, I’m going to get in, you’re involved in this too.'  You continued to smashed the door and gained entry to the premises forming the basis for Charge 3, aggravated burglary.

12Mr Yanni, Ms Lemillour and the children retreated to the back yard.

13You then moved your car before returning to the premises and smashed and damaged various items. You remained inside for approximately 15 to 20 minutes and could be heard yelling, 'Where are you, Yanni, I want to stab you! I want to stab your missus!' before you left on foot in the direction of Sydney Road.

14Mr Yanni contacted Triple 0 and police attended shortly after.

15Meanwhile, at approximately 10:30 pm, you approached a 7-Eleven service station at 1603 Sydney Road, Campbellfield, a short distance from Stewart Grove.

16You approached the attendant, Mr Noon, and asked for paper towel. You walked to the side of a counter and tried to open the door. Mr Noon told you to go back and gave you some paper towel.

17You then asked for cigarettes explaining that you were drunk and without money but would return the following day and pay double. Mr Noon declined to provide you with cigarettes. You picked up a pack of Krispy Kreme doughnuts and left the store without paying. This forms the basis for Charge 4, theft.

18You returned to the store, picked up a lighter stand and straw container and threw them. You then grabbed a computer monitor and tried to pull it over the counter but fell over as you did so. You again asked Mr Noon for a packet of cigarettes saying, 'You don’t know what I can do to you, so do what I say.'.

19Mr Noon said he would give you what you wanted and not to harm him. You again tried to climb the counter but were unable to do so. You pulled a stand from the counter and smashed it. Fearing he might be killed due to your level of aggression, Mr Noon gave you a packet of cigarettes. You then demanded $100 in cash and Mr Noon provided you with an unknown quantity of money. These facts form the basis for Charge 5, robbery.

20You left the store and Mr Noon contacted police.

21At 10:46 pm you walked into the McDonald’s restaurant next door to the 7-Eleven store. You approached an unknown male customer, pushing him by his jumper. You then left the store before returning and punching the same male to the face causing him to fall back into a chair. That male received a blood nose and appeared dazed before running off. You yelled, 'Go call the cops you fucking dog.' or 'Come here you fucking dog.'. This forms the basis for related summary Charge 10, unlawful assault.

22You were approached by a McDonald’s employee, Zakaria Khodr, who observed that you stunk of alcohol and suggested you leave. You refused and walked around the restaurant screaming and speaking in a mix of Lebanese and English.

23The manager, Elizabeth Zampogna, contacted Triple 0. She advised staff not to engage with you any further and shook her head, returning with Mr Khodr behind the counter. You saw this and walked behind the counter towards her saying that you hated her and asking why was she laughing at you and why was she shaking her head. Ms Zampogna feared she was going to be hit by you and feared for the safety of herself and her staff, moving them out of a door at the rear of the premises. These facts form the basis for the related summary charge, Charge 11, unlawful assault.

24Police subsequently attended. You left and walked to the Sylvania hotel which was nearby.

25Police approached you in the hotel and directed for you to get on the ground. You followed this direction, laying on your stomach. You allowed Senior Constable Archdale to handcuff your right wrist but refused to allow your left wrist to be handcuffed, placing it underneath your head. There was then a struggle between two police members and yourself for several minutes. Additional police attended and assisted Senior Constable Archdale and First Constable Chircop to handcuff you. These facts form the basis for summary Charge 13, a rolled-up charge of resist arrest.

26You were searched and police located cash, a packet of cigarettes and a Hyundai car key. You presented to police as unstable, erratic and either drug or alcohol affected.

27Paramedics were called and you were sedated and taken to the Northern Hospital. You were deemed unfit to be interview by police.

28At the time of this offending you were on bail granted by the Melbourne Magistrates Court on 16 May 2019 for unrelated offending. This fact forms the basis for summary Charge 9, commit an indictable offence whilst on bail.

Victim Impact Statements and gravity of offending

29There are no victim impact statements but this does not equate with your victims being unaffected by your actions.

30Whilst your presentation was described as erratic and unstable, your offending, particularly the aggravated burglary, is serious. This charge is particularised as entry with an offensive weapon and with an intention to assault.

31You attended the premises at Stewart Grove later in the evening, armed, and entered those premises where two adults and four children were present. This was a family home in which the occupants were entitled to feel safe. You were aggressive and undoubtedly frightening.

32Your entry was accompanied by threats and damage to property. 

33Your offending otherwise was against a random range of victims of persons unknown to you and including the damage to Mr Sevinc’s car, and your offending in 7-Eleven and McDonalds.

34Mr Noon and the McDonald’s employees were in their place of employment where they were also entitled to feel safe. Other customers of McDonald’s would have been exposed to your behaviour.

35Police members, then having to interact with you, were only doing their job when they incurred your violent and aggressive behaviour.

36You did have some kind of weapon with you when you attended the Stewart Grove premises, otherwise I do accept your offending on this day does not appear particularly premeditated, but it is also very disturbing as it would have been for each of your victims.

37You wreaked havoc on 17 May 2019 over a period of about an hour and a half. You apparently have the safety of little recollection of events. Your offending remains largely unexplained.

38It is concerning that you were subject to a grant of bail at this time showing a disrespect for court orders. This is the subject of separate summary charge.

39General deterrence, protection of the community, denunciation and specific deterrence are obviously important sentencing considerations.

Plea of guilty

40The Sentencing Act 1991 obliges me to consider the stage at which you entered your guilty pleas.

41A contested committal hearing was held on 19 November 2019, at which time Mr Yanni and Ms Lemillour and the informant were subject to cross-examination.

42There were a number of trial listings which appear to have been adjourned for a number of reasons which include the COVID-19 pandemic and its impact on the court, your health, your ability to fund a trial as well as the fact that you were also awaiting a trial in relation to Commonwealth offending to which I will later refer.

43You pleaded guilty to the charges on the current indictment on 8 February 2023 and your trial hearing was vacated.

44Whilst not at an early stage, your plea does save the court the time and expense of contested proceedings, a factor which has utilitarian value, and in your case, additional value as it occurred when the court was still responding to the impact of the COVID-19 pandemic and the resultant backlog in trials.  Your plea therefore offered finality and certainty to all persons involved. 

45In addition, your plea saves the trauma for witnesses in having to give evidence and relive distressing events, of particular importance given the circumstances of your offending. 

46I am satisfied on the materials before me that your plea reflects a willingness to take responsibility for your offending.

47These factors will be taken into account in your favour. 

Totality

48The totality principle requires that where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains 'just and appropriate' for the whole of the offending.  This is a significant matter in sentencing you.

49In considering this issue, a chronology is of some assistance.

50As has already been referenced, the offending before me occurred on 17 May 2019.

51At that time you had already been charged with an offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug (being cocaine) which had occurred in May of 2017. This was referred to in the plea before me as the 'Commonwealth offending.'

52You were remanded into custody for the offending before me on 17 May 2019.

53Between 8 June 2019 and 10 December 2019, you were remanded into custody for unrelated summary offending. On 10 December 2019 you received a sentence of 187 days' imprisonment with 187 days reckoned as served. This impacted on your available presentence detention for the matters now before me.

54On 29 June 2020, bail which you held in relation to Commonwealth offending was revoked and you were remanded into custody.

55You were granted bail, by me as it would happen, on 12 August 2020 having served 453 days in custody inclusive of the 187 days imposed on 10 December 2019. You have remained on bail for the matters before me since. You were granted bail in relation to the Commonwealth offending which saw you remanded on 29 June 2020 on the same day, that is 12 August 2020.

56On 7 June 2022, you were remanded into custody for the Commonwealth offending having been found guilty by a jury.  Your bail in relation to the matters now before me continued, which is perhaps unfortunate in all the circumstances.

57On 24 August 2022, you were sentenced by His Honour Judge Bourke to 10 years' imprisonment with a non-parole period of six years and six months' imprisonment. 488 days was reckoned as having already been served.  You are presently undergoing this sentence.

58As referred to earlier, you entered your pleas of guilty in relation to the matters before me on 8 February 2023. Your plea was adjourned on a number of occasions as you awaited the outcome of an application for leave to appeal against the conviction and sentence relating to the Commonwealth offending.

59Leave to appeal against the conviction and sentence for the Commonwealth offending was refused on 12 January 2024

60The sentence for the Commonwealth offending is due to expire on 23 April 2031 with your earliest eligible release date, if given parole, being 24 October 2027.

61The period declared by His Honour Judge Bourke by way of pre-sentence detention has the effect that the period which you served in custody between 8 June 2019 and 10 December 2019 has been counted twice. The fact that you remained on bail for the matters now before me has resulted only 21 days being directly referable pursuant to section 18 of the Sentencing Act 1991, being the period between your arrest on 18 May 2019 and 8 June 2019. However, the periods you have served in custody, and are currently serving, are not without their relevance to the sentencing task.

62Whilst in part it has been a reflection of your decision making in terms of the management of your Commonwealth offending and the matters before me, you should not lose the benefit of the consideration of concurrency between the two matters.

63In my view, the correct approach is to consider what would have been an appropriate total sentence, both head sentence and minimum term, for the Commonwealth offending and the offending before me, and then for this court to impose a sentence which is consistent with that determination, that is, the court may be placed in circumstances where it is necessary to impose a disproportionately lenient sentence in order to avoid a total sentence across both matters which is disproportionate. It does require an assessment of the overall or total criminality, and, of course, a crushing sentence is to be avoided.

Personal circumstances

64You are now 41 years of age and are of Lebanese heritage.

65You are the eldest of a sibship of 10.

66Your home environment was particularly challenging. Five of your siblings, including your twin brother, suffer severe cerebral palsy. Your twin is currently in palliative care, as I understand it. Two of your siblings have passed away, one in a drowning incident when you were six and another in palliative care. You had considerable responsibilities for your siblings from a very young age.

67Your father worked long hours as a taxi driver whilst your mother took care of the family home.

68Your father was particularly strict and wanted you to become a Muslim Sheikh. Your father was demanding and verbally, psychologically and physically abusive to both you and your mother.

69Your parents separated about two years ago. You have a close relationship with your mother but minimal contact with your father.

70You struggled with your schooling and stopped attending whilst in Year 9. You had been moved to an Islamic school and you were unable to keep up with the expectations of that school and of your father, who would punish you for failing subjects.  You were also bullied at school.

71On leaving school you were sent to Lebanon by your parents to live with your paternal grandparents but returned to Australia when you were aged 16 years.

72You started to use alcohol and drugs from your teenage years and have used MDMA and methamphetamines for a significant part of your adult life.

73I accept that there are aspects of your upbringing which were particularly difficult given the health challenges faced by your siblings, the absence, yet demands of and abuse from your father, and your mother having to manage such a household. This would appear to have impacted your schooling and seen your resort to early drug use.

74I take this into account in a general sense.

75You have had some employment in traffic control and as a security guard.

76From an arranged marriage in 2005, you have a 17 year old daughter with whom you maintain contact, although she and her mother reside in Lebanon. That marriage lasted approximately 11 months.

77You have a de facto relationship of some six years standing.

78In 2014, you were diagnosed with schizophrenia and since have been prescribed antipsychotic medication, antidepressant medication and benzodiazepines.

79A report dated 20 July 2022 and authored by Naomi Cameron, psychologist, has been tendered on your behalf. I have had recourse to its contents.

80Ms Cameron noted your history of using substances as a form of self-medication for unresolved grief and mental health comorbidities. Your mental state was relatively stable when she attended upon you.

81Ms Cameron was of the view that your diagnosis of schizophrenia may need to be further investigated.

82A report dated 26 July 2023 authored by Dr Sam Calvin, forensic psychiatrist, was also tendered on your behalf. He found no evidence to suggest that you were mentally unwell at the time of your offending. His primary diagnosis was one of significant substance use disorder.

83In Dr Calvin's opinion you do exhibit psychological vulnerability which contributes to your maladaptive behaviours. These vulnerabilities are assessed as largely stemming from your adverse childhood experiences leading to chronic emotional regulation difficulties.

84Whilst you do have a historical diagnosis of schizophrenia, in Dr Calvin’s opinion your condition was most likely due to excessive drug use and a diagnosis of drug induced psychosis was, in his opinion, more appropriate.

85It is perhaps obvious that Dr Calvin recommends that you remain abstinent from drug use and that the primary aim of any treatment should focus on your substance addiction.

Criminal Record

86You have an admitted criminal history in New South Wales and Victoria.

87Your offending in New South Wales involved some minor driving offences in 2008 for which you received fines. On 20 October 2011, the Sydney District Court dealt with a charge of supply prohibited drug and fail to appear in accordance with a bail undertaking for which you were imprisoned for three years and ordered to serve a minimum of two years' imprisonment before being eligible for parole.

88In Victoria your criminal history spans the period between 21 July 1999 and 13 April 2018 and involves some 10 court appearances for a range of offending which has included dishonesty offences, an offence of violence, drug possession, weapon possession, driving offences, drug cultivation and contravention of court orders.

89You have been required to serve an immediate term of imprisonment on one occasion based on that history. On 10 March 2011, the Melbourne Magistrates Court sentenced you to 120 days' imprisonment for charges of obtaining property by deception and possession of cannabis. 94 days were reckoned as served. Otherwise, you have been subject to financial penalty or supervisory orders.

90You do not appear to have much of a history for violence. Your offending in May of 2019 would appear to be an escalation in your offending compared to that of the past.

91You are not to be punished for your criminal history a second time but it is relevant to your sentencing in the weight that should attach to the principles of specific deterrence, denunciation and protection of the community. It is also relevant to the assessment of your prospects for rehabilitation, where I now turn.

Prospects for rehabilitation

92Your prospects are somewhat difficult to assess.

93You have a long history of drug and alcohol abuse, antisocial behaviour, and the events of 17 May 2019 would indicate, as already described, an escalation in your behaviour and in its violence.

94You did comply with bail orders from 12 August 2020 until the jury's verdict on the Commonwealth matters on 7 June of 2022, representing a period of some 22 months. This is very much to your credit.

95You have also lived with a diagnosis of schizophrenia since 2004 but if the diagnosis of Dr Calvin is correct you now have a new understanding of your presentation and it is a situation which can be addressed through both treatment and abstinence.

96You are now undergoing what can only be described as a substantial term of imprisonment for what has been described as your Commonwealth offending. It should act as a deterrent into the future and also plays a role in protection of the community providing you choose to learn from that experience.

97It is not lost on me that the Commonwealth sentence which you are presently undergoing also offers an extended period of supported transition into the community. This seems capable of fostering your rehabilitation and, in that sense, offers a mechanism for community protection as does the swift response of parole authorities should there be issues with your compliance. 

98A document entitled 'Programs Work Report' dated 22 February 2024 confirms that you have had the role of a room cleaner since August of 2023. You are described as having great attention to detail and that the rooms cleaned by you have been consistently clean and tidy to a very high standard. You are described as being friendly with a good attitude towards your work which you appear to take great pride in. You are described as a trusted worker.

99A document entitled 'Prisoner Education Summary Report' dated 19 February 2024 confirms that you have completed a wide range of courses including a licence to operate a forklift, traffic control course, Prepared to Work Safely in the Construction Industry, and Write Short and Simple Workplace Information.

100You seem to be using your time productively and wisely whilst in custody.

101You are apparently settled in your current prison location and are compliant with prescribed medication.  You maintain regular contact with your mother and partner.  

102This augurs well for the future and programs undertaken by you offer an alternative career path upon your release. Your circumstances as just described elevates your prospects for rehabilitation.

Sentencing

103The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.

104I am also required to balance the interests of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

105I have taken into account the sentencing guidelines referred to in section 5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of totality and proportionality.  

106Ms Burnett and Mr Kenny, I am just checking whether there are any matters you need to bring to my attention.

107MR KENNY:  No, Your Honour. 

108MS BURNETT:  No, Your Honour. 

109HER HONOUR: Thank you. Section 16 (3C) of the Sentencing Act requires that every term of imprisonment imposed on a person for an offence committed whilst released on bail must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term. 

110In your case you do not have a relevant history for committing further offences on bail. For summary Charge 9, you are convicted and fined the amount of $200.

111The remaining summary offences numbered 10, 11 and 13 involve the assault of the unknown male at McDonalds, the assault upon Elizabeth Zampagna and your resisting of arrest by officers Chircop and Archdale.  As referred to earlier, you have a limited history for violence and the maximum penalties are relatively low.  

112For these three offences, I propose to impose an aggregate sentence as I am satisfied that these offences are founded on the same facts, or form, or are part of a series of offences of same or similar character. They were all part of the one incident.

113For these matters you are convicted and sentenced to two months' imprisonment. This term is to be concurrent with the sentence I am about to impose on the indictment.

114For the offences the subject of the indictment, I also propose to impose an aggregate sentence as I am also satisfied that these offences are founded on the same facts, or form, or are part of a series of offences of the same or similar character.  I bear in mind that all matters that I am dealing with today were part of the same series of events, occurring in slightly less than 90 minutes.

115Pursuant to s16(4) of the Sentencing Act 1991, a court that imposes a term of imprisonment for an offence against the law of Victoria on a person already undergoing a sentence of imprisonment for an offence against the law of the Commonwealth, must direct when the new term commences. This new term must be no later than immediately after the completion of that sentence or sentences, if a non-parole period was not fixed in respect of them, or at the end of that period if one was fixed.

116In all circumstances of your case, I propose to impose a straight sentence of two years' imprisonment, reckoning 21 days as having already been served. That sentence is to commence today. I do not propose to set a non-parole period given the particularities of this case as outlined.

117It is my intention that the sentence I have just imposed does not interrupt the Commonwealth sentence in any way, as I see this as sufficient to encompass the entire criminality associated with both the State and Commonwealth offences and the factors which I have taken into account.

118Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges.  This is somewhat artificial in your case given the significance of totality, but if not for your pleas of guilty I would have sentenced you three years' imprisonment with a minimum of two years' imprisonment and structured a sentence such that there would have been a three month increase on the Commonwealth sentence.

119Anything further from either of you?

120MS BURNETT:  Excuse me, Your Honour.  Sorry, Your Honour, just excuse us. 

121MR KENNY:  Nothing that springs to mind, Your Honour, we just couldn't remember whether there's any forfeiture or any other orders that are sought.

122MS BURNETT:  There weren't any ancillary orders.

123HER HONOUR:  All right.  I do thank you very much both of you for your assistance and your patience with my difficulty in calculating how to deal with the sentencing exercise, I am very grateful for the assistance.  As indicated, Mr Kenny, I will give you the opportunity to speak with your client.

124MR KENNY:  Thank you, Your Honour. 

125HER HONOUR:  Otherwise, I will close the court until Monday - - - 

126MR KENNY:  Tuesday, Your Honour.

127HER HONOUR:  Tuesday, thank you.

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