Director of Public Prosecutions v Abdou
[2022] VCC 1679
•29 September 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR 21-02360
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AHMAD ABDOU |
---
JUDGE: | HIS HONOUR JUDGE ROZEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2022 | |
DATE OF SENTENCE: | 29 September 2022 | |
CASE MAY BE CITED AS: | DPP v Abdou | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1679 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Obtain Property by Deception – Make Threat to Inflict Serious Injury – Common Assault contrary to the Common Law – Theft – Abusive and Controlling Relationship – Intellectually Disabled Victim – Rehabilitation Prospects – Suitability for a Community Correction Order
Legislation Cited: Crimes Act 1958 (Vic); Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342
Sentence: Three year community correction order with conviction – s 6AAA declaration – Six months' imprisonment and a community correction order of three years
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Stevenson | Office of Public Prosecutions |
| For the Accused | Mr Lewin | Emma Turnbull Lawyers |
HIS HONOUR:
1Ahmad Abdou, you have pleaded guilty to eight charges:
(i)Charge 1 is that on 17 December 2019 you obtained property by deception contrary to s 81 of the Crimes Act 1958 (Vic).
(ii)Charge 2 is a rolled-up charge of making threat to inflict serious injury contrary to s 21 of the Crimes Act.
(iii)Charge 3 is a charge of making threat to inflict serious injury contrary to s 21 of the Crimes Act.
(iv)Charge 4 is a charge of common assault contrary to the common law.
(v)Charge 5 is a further charge of common assault contrary to the common law.
(vi)Charge 6 is a rolled-up charge of making threat to inflict serious injury contrary to s 21 of the Crimes Act.
(vii)Charge 7 is a further rolled-up charge of common assault contrary to the common law.
(viii)Charge 8 is a charge of theft contrary to s 74 of the Crimes Act.
2
I sentence you on the basis of the agreed prosecution summary dated
9 September 2022.
Background
3
You were born in January 1990, and at the time of the offences to which you have pleaded guilty you were 30 years of age. You are a qualified tradesman and were the supervisor of the Victim, Timothy Rogers, at
Dynamic Plumbing Solutions.
4Mr Rogers was 26 years of age at the time of the allegations; he suffers from an intellectual disability and a speech impediment. He was known to you and worked with you at a previous place of employment before both of you became employed at Dynamic Plumbing Solutions. At the time of the offences , you and the victim had been working together at Dynamic Plumbing Solutions for around 18 months.
5
The offending conduct spans the period 27 November 2019 through to
10 February 2020. Part of the offending involves a series of WhatsApp messages that were exchanged between you and Mr Rogers between 27 November 2019 and 13 February 2020. During this period, the conduct that you directed towards the victim was abusive and controlling, for example, you would demand that he perform arbitrary tasks such as driving to different suburbs of Melbourne as punishment for poor behaviour, to text or call you at various points of the day, and to perform personal errands for you outside of work.
6He acceded to your instructions. He was requested to purchase items for you, including appliances, children's toys, men's clothing, household products, game consoles, et cetera. He was not reimbursed for those items. That is an uncharged act. The instructions occurred in the context of a relationship in which Mr Rogers was regularly abused and harassed by you, and examples of that harassing conduct are set out below:
(a) On 13 December 2019 you made a request for the Victim to run errands at Woolworths. Following the request, you repeatedly messaged the Victim to “call Cunt” and stated “want me to kill you cunt?” and “hurry the fuck up”; (uncharged)
(b) On 19 December 2019 you stated to the Victim: “How dumb are you”; “your exactly like a fukin robot”; and “a dumb one”; (uncharged)
(c) On 21 December 2019 you messaged the Victim: “I fkn said”; “head to cut your hair now”; “Then go to Ivan’s”; “Go cut your fkn hair now”; “then Ivan’s”; and “you fkn ugly Cunt”; (uncharged)
(d) On 26 December 2019, when the Victim purchased a baby swing set instead of a toddler swing set for you, you messaged “a u retarded [sic]”; “want me to fuckin kill u?”; “are u sure cunt?”; “are you fkn sure sure”; “Cause I’ll fuck you yo”; and “Up”; (uncharged)
(e) On 4 January 2020, the Victim messaged “good morning mate. How are you feeling today mate”, you responded “U up” and “have you left”, to which the Victim responded, “no I haven’t left mate”. You responded to the Victim: “and how fkn dare you”; “why not”; “answer me”; “you cunt”; “dog”; and “Face”;
(f) On 9 January 2020 the Victim messaged: “how’s your night going mate”. You responded, “Is that it” and “Where the fuck are the updates you cunt”. The Victim responded, “I’m at home now mate”, to which you replied, “Is that it???” and “So you want me to kick your head in”. The Victim then messaged: “no I don’t want you to kick my head in mate”, to which you responded, “So that’s all you say” and “Are you fkn serious cunt”; (uncharged)
(g) On 18 January 2020, you messaged: “Cap”; “???????”; “Fuckwit”; “???????”; “Where the update you fukin dog”; “you still don’t get it”; “your fkd”; “watch”; and “tonight”; (uncharged)
(h) On 1 February 2020, you messaged: “Did you forget to do something cunt”, to which Victim responded, “I forgot to say good night last night I pass out mate sorry”. You responded, “Really” and “I’m gonna smash your head in” (uncharged)
7On 17 December 2019, you messaged Mr Rogers and instructed him to provide you with $5,000 for the purchase of a vehicle. He withdrew $5,000 from a bank in Werribee for the purposes of the purchase. You indicated that upon receipt of the money, you would transfer ownership of the vehicle to him. Although he provided you with the $5,000 in cash, you did not provide the vehicle to him and had no intention of doing so. (Charge 1 obtaining property by deception.)
8On 20 December 2019 you demanded that the Victim leave a work Christmas party. At 9:04pm you called the Victim a “dog” and stated, “Give me one reason not to knock your teeth out????”, later stating, “give me a reason I shouldn’t knock u out?”. At 9:14pm that night, the Accused sent a message to the Victim, stating, “Get the fuck to chadstone a”; “And I’m not playing”; and “your fkd when I see you”. You sent further messages between 9:48 pm and 9:49 pm stating: “Have you not learned your lesson”; “When I fkn ring you answer”; “So now you’re going to cop abekting”; and “Belting”. (Charge 2 – Threat to Inflict Serious Injury – Rolled Up)
9On 21 December 2019 you continued to argue with Mr Rogers, stating that he was lying to you. You demanded that he get a haircut. At 8:56 am you sent Mr Rogers a text stating, “Stop writing one word msg or I’ll smash your head in”. (Charge 3 -Threat to Inflict Serious Injury)
10At various times between 1 January 2020 and 4 February 2020, you requested that Mr Rogers assist you in the theft of tools and plumbing equipment from your employer, Dynamic Plumbing Solutions. You would variously remove items from the workplace and would ask him to not tell anyone about the theft, and also to lie for you and say that the tools belonged to you. You would take the stolen property from within the garage of your residence and then instruct Mr Rogers to store the property at his home. (Commencement of Charge 8 – Theft)
11In furtherance of the above theft, you sent a message to Mr Rogers on 30 December 2019 stating: “remember all the shit you got say you got it from a retired plumber mate of yours for free”; “Yeah just make up something like that and make so no dynamic writing anywhere”; “Also thanks for your help man I really appreciate it bro”; and “delete chat”.
12On 30 January 2020 you and Mr Rogers were working together in Williamstown. You were angered at the amount of time he was taking on a basin and threw a piece of PVC piping at his head. The piping struck him and caused a laceration and bleeding to the head. He received treatment in the form of a bandage patch over his injury. (Charge 4 – Common Assault)
13On 5 February 2020 you were present at your home address and Mr Rogers was in the garage. You told him not to go to work the following day as you wished him to work for you privately. He told you that he could not take the day off. You then punched him in the face causing a cut to his lip. (Charge 5 – Common Assault)
14On 10 February 2020 you made further demands for Mr Rogers to run errands for you. You wrote to him that, “your fkd when I see you” and “That’s all I know”. He responded, “keep doing this mate”. You responded, “Oh I will and until your paralised (sic)”. Mr Rogers responded, “I will do something if you do that mate”. You replied: “Like what bitch”; “By mid year I want you in a wheel chair”; and “Do you understand”. He responded, “I’m not saying a word mate” (Charge 6 – Threat to Inflict Serious Injury – Rolled up)
15Later on the same day, you punched Mr Rogers to the right side of his head whilst you were both inside your vehicle. During the assault his t-shirt was torn. You then sent Mr Rogers to purchase multiple items for you from various stores. Upon his return, he asked for reimbursement for the money he had spent. You responded by scratching his face with your car key. (Charge 7 – Common Assault – Rolled Up)
16On 13 February 2020 your employer, Louis Simadopolous, attended at Mr Roger’s home. Simadopolous had been made aware of the messages between you and Mr Rogers but did not at that point know who was responsible for items that had been removed from his business.
17Whilst at Mr Rogers’ residence, Simadopolous located property that had been stolen from Dynamic Plumbing Solutions. That property had been stored at Mr Rogers’ address as per your instructions. That property included:
(a) Rem water and gas crimpers;
(b) A Galaxy Tab A8 Airpad in a green protective case;
(c) A Stihl petrol blower;
(d) Milwaukee drills;
(e) Zupper battery pex pipe expander tools;
(f) Multiple pipes;
(g) Fittings; and
(h) Glue and construction paraphernalia
18The stolen property indicated above was returned to Simadopolous who collected it the following day. The Prosecution concedes that the exact value of the property is not known. (Conclusion of Charge 8 – Theft)
19I note that fortunately serious injury was not caused on the occasions you assaulted Mr Rogers.
20You were interviewed by police on 16 February 2020, and you made a number of admissions and a number of comments about the alleged offending. I will discuss these below.
Impact of Offending
21You applied for a sentencing indication in this case under s 207 of the Criminal Procedure Act 2009 (Vic) in June 2022. The hearing of that sentencing indication application was adjourned at the Court’s request so that the Court could be informed about the impact of the offending on Mr Rogers.
22On 4 August 2022, the prosecution filed submissions ‘in order to assist the court in appreciating the scope of the impact of the alleged offending upon the victim’. In those submissions, the Court was informed as follows:
'The Crown has not sought a victim impact statement from the victim but has engaged in a conference in which some further clarity has been obtained. The prosecution is in a position to indicate as follows:
(a) The victim still works at Dynamic Plumbing Solutions.
(b) The victim completed his apprenticeship in May 2021 and is now a registered plumber.
(c) The victim has regular work each day and is now in charge of his own apprentice.
(d) The victim has not seen a psychologist or psychiatrist.
(e) The victim does intend to ultimately provide a victim impact statement upon plea to give more fulsome detail.
This is the extent of the information the Crown is able to divulge at this point.'[1]
[1] Submissions of Prosecution dated 4 August 2022.
23On the basis of this information about the impact of the offending, as well as the submissions the Court heard and the other information that was provided to the Court, the Court gave a sentencing indication that a community correction order without a term of imprisonment was the likely sentence subject to the accused being assessed as suitable.
24At the hearing of the plea, the prosecution filed a sworn victim impact statement dated 5 September 2022 from Mr Rogers. At page 5 of that victim impact statement, Mr Rogers described the emotional impact of your crimes on him:
'My freedom was taken away by Ahmad who controlled every aspect of my life. My freedom to live was taken away from me and I felt totally helpless because if I objected, he would threaten me or assault me. This caused me significant distress. I was unable to sleep properly because I was required to answer his texts/phone calls at all hours of the day/night. If my response was not immediate or appropriate, he would abuse me at his earliest convenience. He laughed at me, belittled me and made me feel that I was useless. He also called me his slave and joked about it, which made me feel totally degraded and worthless. At times I was so unhappy I wanted to end my life. I felt that I was trapped and unable to escape because of his threats to both myself and my family. Presently, I am receiving counselling to help rebuild my sense of wellbeing, however, I will have to live forever in fear of revenge from him towards both myself and my family for exposing him.'[2]
[2] Victim Impact Statement of Timothy Rogers dated 5 September 2022.
25I note that this victim impact statement was made more than two and a half years after your offending.
26Mr Rogers also stated that the money you stole from him will affect his future life because it will be difficult for him to finance the purchase of a house.
27I take the impact of your offending on Mr Rogers into account in determining the appropriate length of your community correction order and the conditions that I impose.
Objective gravity and moral culpability
28I assess the objective gravity of your offending as high. You engaged in a sustained campaign of bullying of a man that you knew was vulnerable due to his intellectual disability. You treated Mr Rogers as a type of slave, and you regularly humiliated him. Your conduct was outrageous, and I condemn it in the strongest terms. You should be ashamed of yourself.
29Your moral culpability is considerable. In relation to the $5,000 you stole from
Mr Rogers, I note that there was no serious attempt to repay that money until I raised the matter at the previous occasion on which your plea of guilty was being heard by this court. No good explanation had been provided until that time for your failure to repay Mr Rogers. However, I note that in court today your counsel has indicated that you have provided a bank cheque payable to Mr Rogers, which is now with the Office of Public Prosecutions in the sum of $5,000.
Personal circumstances
30I note that you are 32 years old, and you are married with 2 children. Your
7-year-old son suffers from autism. The evidence of his treating doctor is that you play an important role in facilitating your son’s treatment by calming him when he sees the doctor.[3] I have taken this into account as a reason why it would be detrimental to your family for you to be imprisoned.[3] Report of Dr Dean Popa dated 8 June 2022.
31You have stable employment as a plumber. You have no history of alcohol or other drug abuse.
32You have one prior conviction from 2015 for offending that is quite different to the current matter. I note that you were convicted and sentenced to a 12-month community correction order which you completed successfully.
33Your counsel’s submissions state that you have been ‘diagnosed with depression/anxiety’, but no medical report has been provided to the court on your behalf. You were assessed by the Court’s Mental Health Advice and
Response Service (‘MHARS’). The MHARS report dated 19 August 2022 notes that you have had no contact with the Victorian Public Mental Health Services.[4] The MHARS assessor concluded that although you did not present as mentally unwell on interview, you had experienced some traumatic events since 2015. The assessor concluded that you have mild mental health concerns and recommended that ongoing mental health care be made a requirement any community-based order made by the court.[4] Report of Brenda Hughes dated 19 August 2022.
34In these circumstances I can give your medical status only moderate weight in the sentencing process.
Mitigation
35You pleaded guilty after a contested committal hearing. Your guilty plea has the utilitarian benefit of sparing Mr Rogers and other witnesses from giving evidence at a trial. It also saves the court’s resources. Given the ongoing backlog in this court, your plea of guilty entitles you to an additional benefit over and above that which was accorded a plea of guilty prior to the pandemic.[5]
[5]Worboyes v The Queen [2021] VSCA 169.
36There has been considerable delay in the finalisation of this matter. The delay is relevant because the matter has been hanging over your head. I also take into account in your favour that you have not re-offended during the time it has taken to finalise your case.
Rehabilitation Prospects
37I do not accept your counsel‘s submission that your prospects of rehabilitation are good. Based on what you told the community correction order assessor, I am concerned that you have not fully accepted responsibility for your offending. As against that, I note that you have the stability that comes from a supportive family and steady employment. Further, as I have noted, you have not re-offended since the date of this offending. In the circumstances, I assess your prospects of rehabilitation as fair.
38It is in both your interests and those of the community more generally to promote your rehabilitation. I have tailored the conditions of the community correction order to best achieve this outcome.
Suitability for a community correction order
39At the court’s request, your suitability for a community correction order was assessed. A report of that assessment dated 16 August 2022 is before the court.[6] You were assessed as a low risk of re-offending and were considered suitable for a community correction order with all of the conditions identified by the court in the request being endorsed.
[6] Report of Havovi Panthaki dated 16 August 2022.
40However, as I have noted, there are some concerning features of the report. You told the assessor that it was your intention to re-pay the victim the $5,000, but you had not done so as you had not interacted with the victim since the date of the offending. You said that the other thefts to which you pleaded guilty did not occur. However, I note that when you were asked to reflect on your offending behaviour you did concede that ‘looking back now it was wrong’.
41And as I have noted, you were also assessed by the Court’s Mental Health and Response Service.
Submissions
42Your counsel submitted that a non-custodial sentence consisting of a community correction order with appropriate conditions is within the range of an appropriate sentencing disposition for your offending.
43The prosecution submitted that a combination sentence was the appropriate outcome given the seriousness of your offending.
Sentence
44Mr Abdou, I have given anxious consideration to your case. On the one hand your moral culpability as I have noted is high, and the long-term effect of your offending on your vulnerable victim is clear from his victim impact statement. On the other hand, you have pleaded guilty, you have no relevant prior convictions, and you have a stable family life and ongoing employment and you have been assessed as suitable for a community correction order.
45Having given you a sentence indication, I must not impose a more severe sentence than that indicated, namely a community correction order without any time in jail time.[7]
[7]Criminal Procedure Act 2009 (Vic) s 209.
46The primary sentencing considerations in your case are denunciation, just punishment, specific deterrence and promoting your rehabilitation.
47Having regard to relevant Court of Appeal authority, I consider that an appropriately lengthy community correction order with suitable conditions is the sentence that is best able to meet all of the relevant sentencing purposes. In the case of Boulton v The Queen,[8] the Court of Appeal held that a community correction order could punish an offender and promote the offender’s rehabilitation simultaneously. It can serve both the best interests of the community and the best interests of the offender and of those who are dependent on her or him, in your case including your two young children.
[8] [2014] VSCA 342.
48I have had regard to s 5(4C) of the Sentencing Act1991 (Vic) which provides that a court may not impose a sentence of imprisonment on an offender unless it considers that the purposes for which the person is to be sentenced cannot be achieved by a community correction order with one or more conditions attached, and I consider that those purposes can be achieved by a community correction order.
49Although your offending spans a period of nearly three months, it was committed against the one victim, with the exception of Charge 8. I consider that the offending is founded on the same facts, and I therefore consider it appropriate to make one community correction order in respect of all of the offences under s 40(1) of the Sentencing Act 1991. I therefore order you to serve a three-year community correction order with conviction commencing today.
50I need to explain to you, Mr Abdou, the standard terms attached to all community correction orders:
(a) You must not commit, whether in or outside Victoria, during the period of the order an offence punishable by imprisonment.
(b) You must comply with any obligations or requirement prescribed by the regulations.
(c) You must report to and receive visits from the Secretary or their delegate during the period of the order.
(d) You must report to the Community Corrections Centre specified in the order within two clear working days after the order comes into force, that is within two clear working days of today.
(e) You must notify the Secretary or their delegate of any change of address or employment within two clear working days after the change.
(f) You must not leave Victoria except with the permission of the Secretary or their delegate either generally or in relation to a particular case.
(g) You must comply with any direction given by the Secretary or their delegate that is necessary for the Secretary or their delegate to give to ensure that you comply with the order.
51In addition, the following special conditions apply to the community corrections order that I impose today:
(h) You must report to Werribee Justice Centre within two working days of today’s date.
(i) Subject to (l) below, you must complete 300 hours of unpaid community work.
(j) You are to be supervised, monitored and managed as directed by the Secretary or their delegate.
(k) You are to undergo treatment and rehabilitation as directed by the Secretary or their delegate in order to address your offending behaviour and, in particular, you are to attend:
(i)any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility; and
(ii)any program that addresses factors related to your offending behaviour.
(l) Up to 50 hours satisfactorily undertaken for treatment and rehabilitation are to count as hours of unpaid community work.
(m) You will be subject to judicial monitoring. You must appear before me as directed so that I can monitor your progress. The first monitoring date will be Wednesday 14 December 2022 at 9.15 am.
52I will request that the community correction officer provide an updated progress report no later than three working days prior to that date to the court. The prosecution need not attend at the judicial monitoring hearing unless there is good reason to do so, but the OPP will be contacted through my chambers if that were to be the case.
53Mr Abdou, I cannot make a community correction order unless you agree to the terms and conditions. Do you agree to comply with the community correction order with the terms and conditions which I have set out?
54OFFENDER: Yes, I do, Your Honour.
55HIS HONOUR: You must understand, Mr Abdou, that if you contravene any of the conditions of the community correction order which will commence forthwith, then that in itself is an offence punishable by a maximum of 3 months’ imprisonment. Should that occur, you will be brought back before this court and it is possible that, depending upon the circumstances, the order will be cancelled, and you will be ordered to serve a term of imprisonment instead.
56Mr Abdou, you will be on a three-year community correction order. It is a condition of that order that you be supervised, undergo ongoing mental health treatment, and engage in programs to address your offending behaviour. You will come back before me for what is called judicial monitoring on Wednesday 14 December 2022 at 9.15 am. The community corrections office will provide me with a report that outlines your progress. On that day, I will see how you are going under the order, and I will then decide if I need to you to come back before the court for any further monitoring. It is likely that there will be at least one more occasion when I will require you to come back.
57Finally, I indicate pursuant to s 6AAA of the Sentencing Act that had you pleaded not guilty to these charges and been found guilty by a jury of them, the sentence that I would have imposed would have been six months' imprisonment and a community correction order of three years.
- - -
0