Director of Public Prosecutions v Abdou
[2015] VCC 330
•20 March 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-13-02139
CR-13-02140
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHMMED ABDOU AHMED CHEBIB |
---
| JUDGE: | HIS HONOUR JUDGE PARSONS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 December 2014, 6, 20 March 2015 |
| DATE OF SENTENCE: | 20 March 2015 |
| CASE MAY BE CITED AS: | DPP v Abdou & Anor |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 330 |
REASONS FOR SENTENCE
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Catchwords:
Legislation Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K. Doyle | |
| For Offender Abdou | Mr D. Sala | Balmer & Associates |
| For Offender Chebib | Mr D. Cronin | Turnbull Lawyers |
HIS HONOUR:
1You, Ahmed Chebib, have pleaded guilty before me to four charges of armed robbery and one charge of criminal damage, and you, Mohammed Abdou, have pleaded guilty to one charge of attempted armed robbery, four charges of armed robbery, one charge of criminal damage and one charge of obtaining property by deception.
2In addition, you, Mr Abdou, have pleaded guilty to two summary charges which are before me pursuant to the relevant provisions of the Criminal Procedure Act. They are possessing a prohibited weapon on 16 September 2012 and another charge of possessing a controlled weapon, namely a machete, without lawful excuse on the same day in Campbellfield, and you have pleaded guilty to both of these matters.
3The prosecution have tendered a very extensive opening in the matter, which I have marked as Exhibit A. After some discussion, necessary alterations to that document have been made in my hand.
4
It is there stated that both of you were part of a group of at least six males who committed armed robberies over a ten month period in the north and
north-eastern suburbs during 2012. A further offence was committed in Bentleigh East.
5You, Mr Chebib, at the time of offending, were aged between 19 and 20 and lived with your parents in Campbellfield. You were employed as a roof plumber for H & A Majestic Plumbing.
6You, Mr Abdou, were born on 13 June 1992 and, at the time of the offending, were aged between 19 and 20. You lived in Broadmeadows with your mother and siblings. You were employed as a roof plumber for H & A Majestic Plumbing.
7I have previously sentenced Erik Lahteenmaa, who was aged 25 at the time of the offending. He was also employed as a roof plumber for H & A Majestic Plumbing.
8I have also sentenced Mahmoud Halabi, who was born on 21 December 1993. At the time of the offending he was 18 and lived with his parents in Campbellfield and was unemployed.
9I have also sentenced Mohamed Elrajeb, born on 20 July 1993, and at the time of the offending he was aged between 18 and 19 and lived at home with his parents in Campbellfield. He was employed as a boilermaker.
10Finally, I sentenced Mr Abdoullah Ghazi, born on 18 August 1994. He was aged between 17 and 18 at the time of the offending and lived at home with his parents and siblings in Broadmeadows. He was employed as a roof plumber for H & A Majestic Plumbing.
11Charge 1, attempted armed robbery on the Eltham Hotel on 8 March 2012 concerns you, Mr Abdou.
12On this day, at approximately 12.05 am, Mr Elrajeb, one of your co-accused, conducted a reconnaissance on the premises. Shortly thereafter, you and other males arrived at the Eltham Hotel. Two of the males were armed with handguns and you had a milk crate. Your movements were observed and captured on CCTV footage. When one of the persons inside noticed the males outside, he ran to the gaming area and told staff to call police. You all unsuccessfully attempted to force open the front doors and then left. You and another were seen to be wearing disguise.
13Charge 1, with respect to you, Mr Chebib, an armed robbery at the Boundary Hotel, Bentleigh East on 26 March 2012.
14Prior to 26 March, you and an unknown male conducted reconnaissance on the premises. On 26 March 2012 you and two other males arrived at the Boundary Hotel in the early hours of the morning. You had a pump action shotgun and the other two males had handguns. There were numerous patrons present. There is a description of what happened in the premises at that time provided in the opening. It is clear that the recollections of those people present are both graphic and detailed.
15Amongst other matters, you pointed a firearm at a guard, cocked it and told him to get on the ground. You told him if he moved you would blow his head off. After unsuccessful attempts, you and your co-offenders gave up on the main safe and took money from the various machines. You all wore disguises to conceal your identities and you and your two unknown friends left the venue by way of the main entry. The amount of cash stolen was $22,836.
16On 24 September you made various admissions to committing this crime whilst you were watching news reports of the armed robbery. These admissions were recorded on a listening device.
17Charge 2, armed robbery, at the Furlan Club, Thornbury, on 23 April 2012 concerns you, Mr Chebib, and you, Mr Abdou.
18Reconnaissance was conducted by both of you, together with another, prior to the armed robbery. On Monday 23 April 2012, with others, you gathered in preparation for the armed robbery. You, Mr Chebib, distributed firearms and disguises. In fact, you, Mr Chebib, were armed with a pump action shotgun, and you, Mr Abdou, were armed with another firearm. All of you then travelled to the Furlan Club.
19After further reconnaissance was conducted, you decided to change your plans and wait for the venue to close. When it did close, you confronted the staff, forced them to the ground and tied them up. Again the events are described in detail in the opening and I have no need to repeat them here. In due course, both of you and the others made off with a total amount of $43,565.
20Charge 3, armed robbery at the Furlan Club, Thornbury on 13 July 2012. This concerns you, Mr Chebib, and you, Mr Abdou.
21On that date, at approximately 10.03 pm, reconnaissance was conducted on those premises. At about midnight, both of you, accompanied by others, arrived at the club in your vehicle, Mr Chebib, which had stolen registration plates. You, Mr Abdou, were armed with a metal pole, and you, Mr Chebib, were carrying a bag.
22
The detail of what then occurred is set out in the opening at paragraphs
34 to 42 inclusive. Various patrons made statements about how they were told to lie on the ground and had guns pointed at them. The total amount of cash stolen was approximately $8,863. This incident was also captured on CCTV footage, and I should point out, of course, that six CCTV discs were tendered with respect to these matters.
23
Charges 4 and 5, armed robbery and criminal damage at the Manningham Club, Bulleen on 15 September 2012 concerns you, Mr Chebib; and
Charge 4, armed robbery, concerns you, Mr Abdou.
24On that day reconnaissance was conducted prior to both of you arriving, accompanied by two others, at 1.30 am in your vehicle, Mr Chebib. Disguises were employed and you, Mr Abdou, broke the automatic door release. You then disguised yourself, and thereafter events are described in some detail up to and including paragraph 53.
25Included in those details is, of course, the fact that the manager sustained a serious cut to his head and which required stitches. A total of $5,940.50 was taken. The window smashed by you, Mr Chebib, was replaced at a cost of $6,752,, and the locking mechanism on the front automatic doors, which was damaged by you Mr Abdou, was prepared at a cost of $528. Again, all this was captured on CCTV footage.
26Charge 5, criminal damage at Ezy Glass Campbellfield on 16 September 2012 concerns you, Mr Abdou.
27
On that evening, you, Mr Abdou, in company with others, including you,
Mr Chebib, met in Campbellfield at the rear of an industrial estate. You,
Mr Abdou, and a co-accused, in order to test how best to break glass, broke six large panes of glass with a hammer, causing $5,000 worth of damage.
28Charge 6, armed robbery at Alice Lu Ping's milk bar, Railway Crescent, Broadmeadows, on 26 September 2012 concerns you, Mr Abdou.
29At about 8 pm on that evening, you, Mr Abdou, and a co-accused went to the milk bar. CCTV footage clearly reveals the events which are depicted in the opening at paragraphs 64 to 66 inclusive. Your co-accused pointed a pistol directly at the victim's face amongst the other activities there described. Finally, you both left, taking $400 in cash.
30Charge 7, obtaining property by deception concerns you, Mr Abdou.
31On the evening of 12 October 2012 you and a co-accused, together with others, were in the vicinity of Renown Street, Coburg North when the two victims in this matter were walking in the street. You robbed the victims and stole property including a purse which contained a Commonwealth Bankcard which you and another subsequently used to obtain two cartons of cigarettes to the value of $36.
32You, Mr Chebib, were arrested on 25 October 2012. There was a recorded interview conducted, during which you admitted to having been to several of the gaming venues prior to the armed robberies but denied any knowledge of the armed robberies.
33A search warrant was executed at your home and various items of clothing and other matters relevant to the investigation were seized. You, Mr Abdou, were arrested on 25 October 2012 by the Special Operations Group as you travelled in a vehicle. A search of that vehicle located various items which implicated you in some of the crimes to which you have pleaded. Subsequently a recorded interview was conducted to which you answered "no comment." A further search warrant was executed on your home address on Monday 10 December 2012 and again various items were located which implicated you in these robberies.
34
With respect to the timing of the plea, both of you ran a contested committal on 7 November 2013. Subsequently there were a number of mentions in the County Court whilst plea negotiations took place. Others of your co-offenders settled their cases in this time. A year elapsed before a trial was listed in the County Court for September 2014, although that was adjourned given the unavailability of a Crown witness. The trial was relisted for 21 October 2014 and at that stage plea negotiations resumed and the matter was finally settled in October 2014. You, Mr Abdou, pleaded on 16 October 2014, and you,
Mr Chebib, on 21 October 2014.
35Both of you have been in custody since your arrest on 25 October 2012, and I am informed that the period of pre-sentence detention, not including today, is 876 days.
36Disposal orders were sought in relation to you both, and also a forfeiture order is sought against you, Mr Chebib, with respect to the Holden Commodore which was used in some of the robberies, and a Suzuki motorbike, which the Crown alleges was purchased and modified with proceeds of crime. There were various discussions ongoing, and accordingly, the application for the orders sought was put over until the matter resumed. I am informed today that in fact those discussions have concluded and I am to sign those orders.
37The compensation orders sought against you, Mr Abdou, were not opposed by counsel on your behalf, and accordingly, I will also make those orders.
38There have been a number of victim impact statements tendered in this matter already. I have marked them as Exhibit C and they are before me. Exhibit C is contained within Exhibit B, which is a folder of prosecution plea materials. Of those victim impact statements a number had already been either read to the court or read by me, and they are set out in Exhibit B at markers 4 to 7 inclusive.
39The two victim impact statements which had not previously been tendered were the victim impact statement of Mrs Robyn Pappas, which was read to the court, and also the victim impact statement of Mr Samuel Yates, which is exhibited at Marker 5.
40It is very clearly stated in those exhibits and the annexures to those exhibits that each of your victims has suffered considerably as a result of what you have done. The memory will remain with them for a very long time to come and possibly will never completely leave them. The emotional, psychological, financial and physical repercussions are significant and are detailed in those victim impact statements. It is clear, for example, that Ms Pappas, whose victim impact statement was read to the court, struggles in a significant way with the results of that particular evening. One can only hope she can eventually come to terms with what you did. But you should understand the enormity of the impact that you have had on other people's lives. You terrified, humiliated and assaulted a number of innocent and decent members of our community.
41I do note that each of you have written and tendered letters to the court indicating your remorse. I did say at that time that I accepted that as an indicator of remorse, and indeed there have been other expressions of remorse by you to other persons including professional persons. Further, you, Mr Abdou, have made a payment towards the orders of compensation which have been made against you by consent, and I regard that as a further indicator of your remorse.
42
The matter was listed before me on 12 December 2014, at which time
Mr Cronin, who appears for you, Mr Chebib, tendered a number of exhibits including his outline of plea submissions, various testimonials with a letter from the Broadmeadows Medical Practice, various certificates of accomplishment, which are Exhibit 3, various certificates attesting to the fact that there was no evidence of drugs detected when you were tested, which are Exhibit 4, and finally, as I have already mentioned, a letter from yourself to the court.
43Mr Cronin highlighted the issues that he particularly advanced on your behalf, being your plea of guilty; your age at the time - you were 19 to 20 and you are now 22; your remorse as evidenced by your plea of guilty; the fact of delay, obviously with respect to both the anxiety that you have suffered knowing of the inevitable prison sentence; and that you have rehabilitated yourself insofar as you are able in the prison system; the matter of parity; and finally, the matter of totality.
44Mr Farrington, who appeared on behalf of you, Mr Abdou, tendered a number of exhibits, including his submissions made on your behalf (Exhibit 1A), a report from Mr Cummins dated 5 December 2014 (Exhibit 1B), an aged medical reference dated 30 July 2008 (Exhibit 1C), which spoke of the matters in Lebanon with respect to your uncle, a letter from you dated 10 December 2014 (Exhibit 1D), a testimonial (Exhibit 1E), certificates revealing the fact that you had no drugs in your system at the time you were tested (Exhibit 1F), three certificates with respect to the courses that you have undertaken whilst on remand (Exhibit 1G), and finally, a folder of materials which includes some of the above exhibits.
45Again, Mr Farrington, on your behalf, highlighted issues of delay, your prospects of rehabilitation, the issues of totality and parity and your mental health as revealed in the two reports dealing with that matter, and particularly the issue of what happened to you in Lebanon.
46With respect to both of you, I took the view at that time, given the absence of any psychological or psychiatric report on behalf of you, Mr Chebib, and given the circumstances relating to you, Mr Abdou, it seemed appropriate to me to order Forensicare reports. In particular, I sought assistance with respect to you, Mr Abdou, concerning the matters raised in the two medical reports from the psychiatrist and psychologist, and concerning you, Mr Chebib, given the fact that you had involved yourself in this criminal behaviour for no reason that seemed readily apparent.
47
You, Mr Abdou, were before the Broadmeadows Magistrates' Court on
7 March 2012 where you were convicted of the offence of failing to render assistance after an accident. The matter was, without conviction, adjourned for a period of 18 months on various conditions.
48
You, Mr Chebib, were before the Broadmeadows Childrens' Court on
16 November 2010 with respect to driving an unregistered motor vehicle and other associated matters and, without conviction, the matter was adjourned for six months.
49You were before the Broadmeadows Magistrates' Court on 3 September 2012 with respect to other driving charges, and indeed a number of them. You were convicted and a community corrections order for 12 months was the sentence. The armed robbery, to which you have pleaded, on the Manningham Club on 15 September 2012 was committed approximately two weeks after you were convicted and sentenced to that community corrections order.
50As has been pointed out by counsel on behalf of each of you, there are a number of mitigating factors. You have each pleaded guilty and are entitled to have that fact taken into account in your favour and I will do so. The community has, by your pleas, been spared the time and cost of a trial and possibly trials. Witnesses have been spared the ordeal of giving evidence upon your trial, and I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial. However, I take into account the circumstances in which you pleaded guilty, as outlined in the prosecution opening, which could certainly not be described as the first opportunity. In fact, it was after the trial had been listed on two occasions.
51I do note, of course, with respect to you, Mr Chebib, that you had offered to plead guilty on an early occasion with respect to three of the four matters to which you have now pleaded guilty. That does weigh modestly in your favour in the sentencing process, although, of course, the plea was not settled until you agreed to a further charge of armed robbery.
52I do accept in each of your cases that your pleas indicate remorse for your actions and indeed you have spoken of that in the letters that each of you have addressed to the court and I take that into account in each of your favours.
53
I have been told something of each of your personal histories and circumstances and I think it most appropriate to refer in that context to the two Forensicare reports which have been prepared and which are Exhibit F in the case of you, Mr Chebib, and dated 2 March 2015, and Exhibit G in your case, Mr Abdou, and that report is dated 24 February 2015. These documents were made available to the court and submissions were received in respect of them and further oral submissions on each of your behalves by your counsel on
6 March 2014 and again this morning.
54Ahmed Chebib.
55You, Mr Chebib, were born in Melbourne to parents of Lebanese origin. Your father is a labourer and your mother is a teacher. You are the first of a sibship of four. You described your life to Dr Glowinski, the author of the report, as "fairly normal early on." Your mother was very supportive of you, and you described your father as old school, by which you meant you would be frequently on the receiving end of yelling and occasional corporal punishment from a young age. You now apparently have a much better relationship with your father.
56You went to King College from Prep to Grade 3 and then you moved to a school where your mother worked as a teacher. You went to secondary college at Ilham College. In Years 10 and 11 you became more confident, your social life expanded and you apparently began seeing young women. You finished Year 12 and went on to work as a labourer before beginning a plumbing apprenticeship. You were apparently one and a half years into that apprenticeship when you were incarcerated.
57You were married when you were aged about 17 or 18, having been in a relationship for two years with the young woman. That marriage failed and, as a consequence, you resumed your friendship with a group of friends with whom you had previous contact and who were regular users of drugs. You said after the breakdown of your marriage you started using a significant amount of cannabis daily and shortly thereafter you were smoking one to two grams of ice per day.
58Dr Glowinski reported that whilst you initially had some difficulties when you were in custody, ever since you have been in a double cell you have better adapted to life in gaol. You have not been prescribed any psychiatric medication. You explained to Dr Glowinski that the reasons for your offending were concerned with the drugs you were using and that the crimes were committed in order to acquire money to support your drug habit. Apparently you could not think of how you could support your drug habit in any other way and the thought of ceasing to use drugs did not occur to you.
59You said that you had a relatively unremarkable childhood, and from the evidence before him, Dr Glowinski said it was difficult to conclude that you had an entrenched personality disorder. You were a young man at the time of the offending, and it was the doctor's view that your personality trajectory is uncertain and potentially malleable, depending on various factors, including your lifestyle choices, in the coming years. It was his view that there was little to indicate that you have a significant or enduring major psychiatric illness. You acknowledged significant cannabis and ice use which constitutes the substance dependence disorders which are in remission in the context of incarceration.
60It was the doctor's opinion that any diminishment of your capacity for judgment, which you described as meaning you were unable to judge right from wrong, related to your use of drugs rather than any coexistent psychiatric disorder. It was the doctor's view that your substance use has the greatest bearing on your risk of recidivism, and he particularly urged that you continue the courses you are undertaking in custody in order to address substance use prior to your release from custody, and the doctor's views, with the greatest of respect, seem to me to be very sensible and I adopt them.
61
Mohmmed Abdou, Dr Mark Ryan prepared the report with respect to you, and I think it convenient to refer to the personal history and otherwise the psychiatric and substance use history which he sets out in his report. As
Dr Ryan notes, your personal history is also described in some detail in the reports of Mr Cummins and Ms Dellas and further in the letters written by yourself and your mother. Of particular note was the fact that you were exposed to emotional and physical abuse from your father and witnessed domestic violence, with your mother and siblings as victims. You displayed conduct difficulties in your early childhood. Your father sent you to Lebanon, where you were subjected to physical, emotional and sexual abuse at the hands of your uncle between the ages of approximately seven to 14.
62The history of physical and emotional abuse in Australia and Lebanon is well established, in the doctor's view, and the sexual abuse has been disclosed more recently. You described frequent physical assaults perpetrated by your uncle for minor infringements, as a result of which you were punched, kicked, hit with objects and, on one occasion, received a burn to your face when hit with a hot skewer. The sexual abuse mainly involved anal rape, which occurred on multiple occasions when your aunty was out of the house, and only ceased when you became older and big enough to defend yourself when you were aged about 12 or 13.
63You returned to Australia at the age of 14 and then displayed emotional and behavioural problems, which are well described by your mother and Ms Dellas in their letters and reports.
64There were ongoing difficulties and you were expelled from several high schools. You eventually completed VCAL at TAFE before going on to commence an apprenticeship in plumbing, and you had completed two years of that apprenticeship before you were incarcerated.
65You had seen a psychologist, Ms Dellas, for about two years at the age of 15 and 16, and you described yourself as a very angry person, harbouring a lot of hatred which, in your view, was largely related to what had happened to you in Lebanon.
66Your substance use history is also described by the doctor, and you commenced regular cannabis consumption in the year following your return to Australia in 2007 when you were aged 15, and that escalated in the 18 months prior to your apprehension. You reported first using ice six months prior to going to prison, and that quickly escalated to daily use. Further, you consumed alcohol on a daily basis up to and prior to your offending and on occasions you would consume up to a bottle of spirits per day. In Dr Ryan's opinion you meet the criteria for diagnoses of post-traumatic stress disorder, poly substance abuse of alcohol, cannabis and amphetamines and conduct disorder in childhood and adolescence and it is likely you were also dependent on alcohol at the time of reception into prison.
67The PTSD diagnosis is based upon the presence of a significant recurrent trauma in which you experienced fear and helplessness and subsequent persistent intrusive re-experiencing of the trauma through memories, flashbacks and dreams. As the doctor observed, substance abuse is more common in such individuals. He noted your behaviour disturbance prior to your prolonged stay in Lebanon, but also noted the dysfunctional home environment with physical and emotional abuse. He further volunteered that in understanding your substance abuse, it was important to note your reporting of the alleviation of re-experiencing phenomena when intoxicated with alcohol, amphetamine and cannabis. In his view, you require ongoing treatment for your PTSD and you will also require ongoing attention in relation to substance misuse, particularly around relapse prevention on release.
68Clearly there have been no subsequent matters since your incarceration and generally your behaviour in gaol has been reasonable and you have sought to utilise the time on remand to achieve as best you can your rehabilitation, bearing in mind the odd difficulty you have each experienced and which is referred to in the relevant Forensicare report.
69I am, on balance, satisfied the chances of your rehabilitation depend entirely upon the attitude that you each adopt whilst serving the balance of your sentences. Clearly each of you has, according to the relevant expert opinions, significant difficulties, particularly with drugs, and those are matters that you will need to deal with prior to your release if there is to be any serious prospect of you successfully achieving your rehabilitation.
70With respect to your roles in the particular offences, I think all I need do is refer to the prosecution opening, which is Exhibit A. In particular with respect to you, Mr Chebib, various submissions have been made with respect to your role and indeed, as a result of those submissions, it was agreed that Exhibit A should be altered, and it now reads with respect to you as follows:
"The group consisted of:
(a) Ahmed Chebib, born on 9 April 1992. At the time of the offending he was aged between 19 and 20 and lived with his parents in Campbellfield. He was employed as a roof plumber for H & A Majestic Plumbing. Chebib recruited Halabi. This is apparent from statements made by Halabi. His Holden Commodore was used to transport offenders to the venues in a number of the offences. He was also the leading participant in the offences for which he is charged."
71Otherwise, of course, Exhibit A, with respect to the particular offences which have concerned each of you, provides a narrative which is agreed by your counsel on each of your behalves as accurately reflecting the facts and matters on which you are to be sentenced. Clearly, parity of sentence is a matter which is of significance and to that end the prosecution have provided Exhibit E. That document sets out in summary form your co-offenders, the offences, the date of their sentence and the result. Mr Ghazi's sentence has been appealed by the Director of Public Prosecutions, although, as I am informed, that has not yet come before the Court of Appeal.
72
One matter with respect to issues of parity which is of significance is, of course, the Court of Appeal's publication of its reasons for decision in the case of Boulton, which sets out the guideline sentence with respect to Community Corrections Orders. This matter was particularly drawn to my attention by
Mr Farrington, counsel for you, Mr Abdou. In a submission which I have received and marked as Exhibit 11, he drew my attention to particular paragraphs in the judgment, and, of course, again today with respect to Exhibit J he makes further submissions.
73He points out, quite rightly, that you fall to be sentenced after I had sentenced some of your co-accused prior to the Court of Appeal guideline judgment in Boulton. With respect to that particular judgment, I have the decision of the Court of Appeal in a case of Chantelle McAleer v The Queen [2015] VSCA at p.4, where Priest and Beach JJA, in a joint judgment, referred to that decision, and at paragraph 23 of their judgment said as follows:
"When called upon to sentence the appellant, as we have observed, the judge did not have the benefit of this court's recent judgment in Boulton, which provides guidelines concerning the imposition of community correction orders. Boulton recognised that a CCO is, by its nature, punitive and that a CCO may be appropriate even for offences of some seriousness and which might previously have attracted a sentence of imprisonment."
The court observed at paragraphs 113 to 115:
"The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.
The CCO option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he take personal responsibility for self-management and self-control and (depending on the conditions) that he pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.
In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him. On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor (or a judge) to say, ‘How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment?’ As we have endeavoured to explain, that question should mark the beginning, not the end, of the court's consideration."
74Their Honours, in paragraph 24, went on to consider the recent insertion into the Act of s.5(4C) which came into force on 29 September 2014, and Their Honours there set out what was there said with respect to that matter, but I will not go on to quote that portion of Their Honours' judgment.
75I sentence Mr Abdou in light of the changed sentencing landscape, mindful of issues of parity. Of course, I did not have the benefit of the decision of Boulton when considering Mr Elrajeb's case and, therefore, no submission was made and could be made in those circumstances as to his eligibility for a CCO, and, of course, that is a matter that may fall to be examined in due course. I think the case of Boulton has clear applicability to Mr Abdou's circumstances as revealed in the plea.
76On the last occasion I had each of you assessed for a community corrections order, bearing in mind that you had each, at the time, served just short of approximately two and a half years in custody on remand, that you were each young men able to be described as youthful offenders certainly at the time you committed the offences, and of course, as it was pointed out, pursuant to the provisions of the Sentencing Act, a community corrections order can be combined with a period of up to two years' imprisonment which does not include any pre-sentence detention. I did say at the time, particularly with respect to you, Mr Chebib, that the fact I was having you assessed for a community corrections order should be taken as no indication that I had reached a view that it was appropriate in either of your circumstances. Those reports have been received and I have also heard brief oral submissions concerning them, and those submissions are before me this morning. I have those reports and I have marked each as an exhibit (Exhibits H and I).
77I regard the applicability of the principle of general deterrence to be of considerable importance in matters such as this, involving, as they do, extremely serious acts of violence carried out by groups of armed youths on gambling and social clubs late in the evening or the early hours of the morning. I have absolutely no doubt this was a most frightening and life-changing experience for those who suffered physically, emotionally and psychologically as a result of what you and your co-offenders did whilst you committed the various offences to which you have pleaded guilty.
78
The principle of specific deterrence also has some applicability to you,
Mr Chebib, given the fact and timing of your prior conviction, as I have explained.
79Of course, with respect to you, Mr Abdou, I do note that the principle of general and specific deterrence should be sensibly moderated in view of the diagnosis of post-traumatic stress disorder and its applicability to you and your circumstances, given the findings of the author of the Forensicare report. The relevant causality is established, in my view, by the diagnosis of post-traumatic stress disorder clearly pre-existing your offending, the self-medication by ingesting drugs, being a typical way of dealing with such problems, and in that way it seems to me there should be some sensible moderation of the applicability of those principles in your case. Clearly, also the fact of your diagnosis means I accept your time in prison would be more difficult than otherwise for a normal prisoner.
80As I have already noted, there has been delay in the matters coming before me, and whilst that delay was a product of protracted negotiations conducted between your own counsel and counsel for the prosecution, it ultimately led to pleas of guilty.
81In the circumstances, I do give each of you some credit for the fact that you have utilised the passing of that time in gaol to do what you have to be begin your rehabilitation. There are reasonable indications that you have embarked in a meaningful way on your own rehabilitation, and hopefully that will continue.
82I have particularly been referred by counsel to various cases including Azzopardi v The Queen [2011] VSCA 372. I have had that decision referred to me in the context of other sentences of your co-offenders, and indeed have quoted Redlich JA at paragraph 34, where His Honour sets out various sentencing principles concerning youth, and Coghlan AJA, in McAuley, agreed with His Honour's comments. I will not repeat what I have already quoted of His Honour in other sentences. His Honour went on to particularly examine how the considerations are affected where the crimes have been particularly serious or persistent. R v Mills is another well-known authority, with respect to the sentencing of youths. Again, this matter was agitated further this morning by Mr Doyle, who appears for the prosecution.
83With respect to you, Mr Abdou, and bearing in mind the Court of Appeal's recent decision in Boulton, to which I have referred, it seems to me appropriate, in view of the positive recommendation in the community corrections order assessment report, that you be given the opportunity of such an order after you have served a further term of imprisonment.
84
With respect to you, Mr Chebib, notwithstanding you have been found suitable for a community corrections order, in my view, in your circumstances, a significant further term of imprisonment is warranted. This follows as a result of your leadership of the group, as is set out in the Crown opening, that you do not attract the benefit of having the principles of general deterrence and specific deterrence sensibly moderated for the reasons applicable to
Mr Abdou. Further, you have pleaded guilty to four charges of armed robbery, and finally and relatively less importantly, your pleas to the various counts were not forthcoming in a timely way as with the other co-accused, and of course there is the matter of your recent prior conviction when you committed one of the robberies.
85If you would stand, please.
86These are, without doubt, serious offences and in all the circumstances I have no alternative to the imposition of custodial sentences, and you, Mr Abdou, are convicted and sentenced as follows:
87There will be a community corrections order for a period of four years and that will be in respect of Charge 1, the attempted armed robbery at Eltham on 8 March. In respect of Charge 2, the armed robbery on the Furlan Club, Thornbury on 23 April 2012, and in respect of Charge 6, the armed robbery on the milk bar on 26 September 2012, so in respect of those matters, that is, Charge 1, Charge 2 and Charge 6, there will be a community corrections order for a period of four years. There will be an order for community work of 600 hours, and all the other conditions recommended by the author of that report will become conditions of the order, and they include: Treatment and rehabilitation for drugs; treatment and rehabilitation for alcohol; treatment and rehabilitation for mental health; and supervision. That is an addition to the community work. With respect to Charge 3, armed robbery, Furlan Club, 13 July, a sentence of imprisonment for two and a half years. On Charge 4, armed robbery, Manningham Club, Bulleen on 15 September 2012, a sentence of imprisonment of three years. On Charge 5, criminal damage, 16 September 2012, imprisonment for a period of six months. On Charge 7, obtaining property by deception, 12 October 2012, a fine of $250. On the two summary matters of possessing a prohibited weapon, you will be convicted and sentenced to two months' imprisonment on each count.
88I direct that the sentence on Charge 4, being the armed robbery on the Manningham Club, be the head count, and I direct that 12 months of the sentence imposed on Charge 3, the armed robbery on the Furlan Club, and two months of the sentence imposed on Count 5, of criminal damage, and one month each on the two summary matters be served cumulatively on the sentence imposed on Charge 4 and each other. That results in a total effective sentence of four years and four months.
89As prescribed by the Sentencing Act, I declare that the period of time you have already spent in custody is 876 days, and I direct that such be noted in the records of the court.
90Your counsel will explain what that means to you, but in broad terms it means you have another two years in prison to serve and then you will be released and you will be placed on a community corrections order with those conditions for a period of four years.
91Had you not pleaded guilty to these charges, I would not have sentenced you to a community corrections order, but instead a total effective sentence of eight years with a minimum term of six years.
92Yes, you can be seated, thank you.
93With respect to you, Mr Chebib, in all the circumstances I have no alternative to the imposition of custodial sentences, and you are convicted and sentenced as follows:
94
Charge 1, armed robbery, Boundary Hotel, Bentleigh East, 26 March 2012, four years' imprisonment. Charge 2, armed robbery, Furlan Club, Thornbury, 23 April 2012, four years' imprisonment. Charge 3, armed robbery, Furlan Club, Thornbury, 13 July 2012, four and a half years' imprisonment.
Charge 4, armed robbery, Manningham Club, Bulleen, 15 September 2012, five years' imprisonment. Charge 5, criminal damage, 15 September 2012, six months' imprisonment.
95I direct that the sentence on Charge 4 be the head sentence and that one year on each of Charges 1, 2 and 3 be served cumulatively on the sentence imposed. The head sentence is Charge 4, which is a period of five years, and one year on each of Charges 1, 2 and 3 be served cumulatively on the sentence imposed on Charge 4 and each other. That results in a total effective sentence of eight years, and I direct that you serve a minimum term of six years before becoming eligible for parole.
96Had you not pleaded guilty to these charges, I would have ordered a total effective sentence of ten years' imprisonment with a non-parole period of eight years. Yes, you can be seated, thank you.
97COUNSEL: As Your Honour pleases.
98HIS HONOUR: Now, gentlemen, I do not pretend that that was anything other than a very difficult sentencing exercise. It is always difficult when it is part of a series of sentences involving issues of parity, and particularly when the court's extremely important decision of Boulton is published midway through the process.
99Further, Mr Doyle, for counsel, I have taken the view, as I say, with respect to the operation of s.44(1) as explained in the case of Boulton, where the court accepted the DPP's submission with respect to the interpretation of that section being consistent with the approach taken in Hancock v The Queen, the reference to which I have given. But if that is not right, then obviously you should come back before me and that matter should be clarified within the time allowed under the statute, I think, for the correction of errors of that kind.
100MR DOYLE: Yes, Your Honour.
101HIS HONOUR: All right. Anything further, gentlemen?
102COUNSEL: No, Your Honour.
103HIS HONOUR: Thank you. I am reminded with respect to Mr Chebib, the pre-sentence detention is, of course, as prescribed by the Sentencing Act. I declare the period of time you have already spent in custody is 876 days, and I direct that such be noted in the records of the court.
104MR CRONIN: As Your Honour pleases.
105HIS HONOUR: Yes, thank you. Mr Abdou and Mr Chebib, I do trust you can continue on the path you have begun in gaol, and when you are released, that you can continue. You have got the support of your families, they remain strongly in support of you, and I hope you rely on that and I hope it continues.
106Yes, thank you.
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