Director of Public Prosecutions v Abdullah
[2017] VCC 743
•6 June, 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00142 (Ali Abdullah)
Case No. CR-17-00143 (Mohammed Abdullah)
Case No. CR-17-00144 (Eid Aboueid)
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ALI ABDULLAH MOHAMMED ABDULLAH EID ABOUEID |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 & 25 May, 2017 | |
DATE OF SENTENCE: | 6 June, 2017 | |
CASE MAY BE CITED AS: | DPP v Abdullah & Ors | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 743 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Kapitaniak | Office of Public Prosecutions Victoria |
| For A. Abdullah | Ms N. Kaddeche | Emma Turnbull Lawyers |
| For M. Abdullah | Mr A. Chernok | Theo Magazis & Associates |
| For Eid Aboueid | Mr A. Patton | Valos Black & Associates |
HER HONOUR:
1 Ali Abdullah and Eid Aboueid, you have both pleaded guilty to a charge of attempted armed robbery and criminal damage. Mohammed Abdullah, you have pleaded guilty to charges of attempted armed robbery, possessing an unregistered general category handgun and criminal damage. The attempted armed robbery was committed on 20 April 2016 over a drug-related debt said to be owed by the victim, Blair Barnett to another male.
2 Ali and Mohammed Abdullah, you are twin brothers born on 11 July 1994 and you were 21 years of age at the time of the offending. You are now 22 years old. Eid Aboueid you were born on 7 February 1993 and are now 23 years of age. You were 22 years old at the time of the offending. You are youthful offenders.
3 In sentencing you today, I have had to balance the serious nature of your offending and the need for you to be appropriately punished, with the strong public interest in ensuring that as youthful offenders you are supported, supervised and monitored in your rehabilitation.
Maximum penalties
4 The maximum penalties for these offences are as follows. For attempted armed robbery the maximum penalty is 20 years’ imprisonment; for criminal damage the maximum penalty is 10 years’ imprisonment and for possession of a general category handgun, the relevant maximum penalty is 600 penalty units or seven years’ imprisonment. I have had regard to these maximum penalties in sentencing each of you today.
Circumstances of the offending
5 I turn now to the circumstances of the offending. The prosecutor presented a summary of the offending which was marked as Exhibit A. It is not my intention to repeat the summary in its entirety.
6 The background to the offending is relevant. In mid-March 2016 you, Eid Aboueid, phoned the victim Blair Barnett and asked her to attend your home. She drove there in her car, a late model maroon Volkswagen Golf. When she arrived you, Eid Aboueid and Ali Abdullah got in the backseat of her car and asked her if she owed your friend Hamza Kahn any money. Ms Barnett denied owing any money. In response you, Ali Abdullah said she did owe him money for drugs and asked her to come inside the house to talk about it.
7 The two of you walked the victim inside a rear bungalow to the house. You, Ali Abdullah led her to a couch to sit and placed a silver handgun on a table in front of her. Following a discussion the victim agreed to pay another person money for some ice that had belonged to Mr Kahn. The victim then left the house. Neither of you have been charged in relation to this incident. The prosecution relies upon it as context for the offending that occurred on 20 April 2016.
8 On 19 April 2016 the victim’s mother Julia Barnett called the victim after two men attended at her house asking if “Blair” was home, as she owed one of their brothers’ money. The pair left when Julia Barnett told the men that she would speak to her daughter about it. Again, the prosecution does not allege that any of you were involved in the attendance at the victim’s mother’s home.
9 On the evening of 20 April 2016 Ms Blair went to visit her friend, Daniel Clohesy at the Stay Inn, located in Sydney Road Coburg. Mr Clohesy was staying in Room 5. Ms Barnett arrived at about 8 pm and was soon joined by another friend, Melissa Frittolini.
10 At around 10 pm there was a knock at the door. A male voice was heard to ask if Blair was there. Mr Clohesy asked who was at the door. In response he heard “Ali, where’s Blair?” The victim told Mr Clohesy that she owed some people money for drugs and asked him not to open the door. The victim sent a series of text messages to her friend, Richard Fowler asking for help. Minutes passed and a further demand was made to open the door in an aggressive tone. The three of you then entered the entrance door to the motel room, damaging it as you entered by kicking it. That conduct constitutes Charge 1 – Criminal damage.
11 Demands were made for money by one of you. Ms Barnett said that she did not have any money on her. A demand was made for her car which was parked outside the hotel.
12 You, Mohammed Abdullah then pulled out a handgun from the front of your pants. This conduct constitutes Charge 2 – Possessing an unregistered general category handgun. The victim believed it was the same gun she had seen placed on the table at Ali Abdullah’s home in mid-March. You Mohammed Abdullah then pointed the handgun in the direction of Ms Barnett as she sat on the bed. In response, Mr Clohesy jumped up and stood between you, the gun and Ms Barnett. You then pointed the gun to Mr Clohesy’s head. You screamed at Ms Barnett to give you the car or you would shoot Clohesy. This conduct constitutes Charge 3 – attempted armed robbery.
13 The victim initially yelled that she was not going to give the keys to her car however Mr Clohesy quickly persuaded her to go to her car to collect her possessions. CCTV footage captures you, Mohammed Abdullah and Ms Barnett heading down the stairs to her car to collect her belongings. As it was taking time you, Eid Aboueid, went to hurry them up. Soon after Mr Clohesy went down to the victim’s car to help her and then all of you returned to the room where the three of you and the victim continued to argue.
14 At 10.20 pm police were dispatched to the motel. On their arrival, police heard arguing described as “aggressive male voices”. The officers yelled out, “Police, open the door”. Before the police entered you, Mohammed Abdullah ran to the window and tried to jump out but could not. Instead you threw the gun out of the window. At approximately 10.27 pm police then entered the motel room and tried to separate you, the victim, Mr Clohesy and Ms Frittolini. As they were doing so you, Mohammed Abdullah, pushed through the police and ran out the motel room fleeing the scene.
15 At 10.50 pm police attended 32 Barkers Road, Coburg after receiving a report about a suspicious loiterer. These premises are directly behind the Stay Inn Motel. Police searched the backyard area and located and seized a silver handgun. The handgun was loaded with 5 bullets. After throwing the handgun out of the motel room you, Mohammed Abdullah went back to retrieve the handgun from the rear of 32 Barkers Road in Coburg.
16 Both Eid Aboueid and Ali Abdullah were arrested and conveyed to Moonee Ponds Police Station after the victim and Ms Frittolini made statements implicating you both. Mohammed Abdullah was arrested the following day, 21 April 2016.
17 When interviewed by police you, Ali Abdullah, denied any involvement in the incident. You admitted being present in the room but said you had been allowed to enter and were just having a conversation with two girls. You said you were drug affected at the time.
18 Mohammed Abdullah, during your record of interview you admitted possessing the firearm which you described as “a silver 45 Magnum”. You admitted throwing the firearm out the window and running out of the room when police arrived. You denied any threats saying that you “pulled it out (ie the handgun) to show the boyfriend”. When asked about the demand for the victim’s car, you said you asked her if she had the money and if she didn’t that she give you the keys to the car. You said you were going to take the car with her permission. In reference to the drug debt, you said “she knows she’s in the wrong in the situation she’ll – obviously if you don’t have the money you give me something else instead”.
19 Eid Aboueid, when you were interviewed by police you admitted being in the hotel room but denied knowing about demands for money and denied any involvement in the attempted armed robbery; also denying seeing any gun. You told police the story sounded fictional, “like a movie to me”.
Objective Gravity of the Offending
20. This is a serious example of the offence of attempted armed robbery. Your counsel accepted it was serious offending. It was carried out in company, three offenders in all. It was executed in a confrontational and aggressive manner. It involved the use of a loaded firearm; the gun was wielded and pointed in the direction of the victims. It was intended to instil fear in them in the context of a demand for payment of a drug debt.
21. On your behalf it was submitted that the offence was unplanned and unsophisticated with counsel emphasising that although the victims were known to you, no disguises were used. However, the context of two of you arranging to meet the victim about the outstanding drug debt in mid-March and then of you all attending the hotel she was visiting in April – one of you armed – is relevant to my assessment of that submission. Having regard to those circumstances, I conclude the offending involved some degree of planning or forethought. It was not entirely unsophisticated offending and could not be characterised as spontaneous. I consider it to be a mid-range example of this type of offending.
20 While the victims have declined to make victim impact statements, it must have been a frightening ordeal for them.
Your roles
21 The pleas are entered on the basis that you were all complicit in the offending and accordingly, are each equally responsible for the criminality involved. However, it remains relevant to analyse the role each of you played in the offending.
22 It is clear from the prosecution summary that you, Mohammed Abdullah, played a dominant role in the offending on the evening of 20 April 2016. It was you who produced the firearm; it was you who pointed the firearm in the direction of the victims and it was you who made the demand for the car, threatening to shoot Mr Clohesy if Ms Barnett did not met your demands. Your moral culpability for the offending on the evening is significant.
23 In contrast, you Ali Abdullah and Eid Aboueid were involved in the offending by your presence and encouragement, but I conclude your role was peripheral to that played by Mohammed Abdullah in the attempted armed robbery.
Personal circumstances
24 Mohammed and Ali Abdullah, you were both born in the Rafha Refugee Camp in Saudi Arabia in 1994, arriving in Australia at the age of two years. You are of Iraqi descent. You have two older sisters. You both have a good relationship with your parents, who remain supportive of you.
25 You, Ali Abdullah attended school, including Ilim College and later Fawkner High School until Year 10. It appears your schooling was disrupted by your behaviour, being expelled from one school and lasting two terms at another. You completed a one year apprenticeship, but stopped going to TAFE because you found it boring. To your credit, you have worked as a plumber for National Metal Roof for four years prior to being remanded. I am told that this employment option remains open to you in the future.
26 You have a prior criminal history dating back to appearances in the Children’s Court in April 2013 for driving offences. Relevantly, you were sentenced to twelve months’ detention in a Youth Justice Centre by the County Court for two counts of armed robbery in April 2013. The offences involved you and a co-offender committing separate armed robberies on taxi drivers with the use of a knife. You were 18 years old at the date of that offending. In November 2013 you were sentenced to six months’ imprisonment for intentionally causing injury in circumstances where you were detained at Malmsbury Youth Detention. You have other priors from 2015 and 2016 for driving and dishonesty offences.
27 You were assessed for the purposes of this plea by Forensic Psychologist, Dr Aaron Cunningham via video link on 10 April 2017. You told him that you started using cannabis at the age of 16 and methyl amphetamine from the age of 19. You were a heavy ice user at the time of this offending. It is positive that you have expressed interest in drug counselling and have attended drug related group sessions at Barwon prison.
28 You told Dr Cunningham you lived in Iraq for four-months at the age of 15 and witnessed the impact of war there. You told him many family members have died in Iraq, including two uncles who were killed by ISIS one year ago. In Dr Cunningham’s opinion you would benefit from counselling associated with grief and loss, but he does not assess you as having any other mental health issues. His assessment, with which I agree, is that your drug use and peer influences are the most significant risk factors associated with your offending.
29 Mohammed Abdullah, you have no prior criminal history. As such, you are to be sentenced as a person of otherwise good character.
30 Like your brother, you also attended various schools, completing Year 10 at Fawkner Secondary College. After leaving school, you worked in a number of trades after completing a roof plumbing apprenticeship. You last worked approximately six months before being remanded. You married in February and your wife currently lives with your parents.
31 You were assessed for the purposes of this plea by Ian McKinnon, a forensic psychologist via video link on 5 May 2017. In his report dated 7 May 2017, Mr McKinnon recounts your history of visiting Iraq in 2001, 2007 and 2012 and having also been exposed to the impact of war which he says left you feeling “traumatised and haunted by your experiences in Iraq”. He expresses the opinion “that you were probably suffering from symptoms that meet the clinical criteria for post-traumatic stress disorder at the time of the offending.
32 You also told Mr McKinnon that you used cannabis irregularly from the age of 17 and began using methyl amphetamine regularly in late 2015, using in excess of 1 gram of ice daily at the time of the offending.
33 As to the relationship of the Post-Traumatic Stress Disorder with the offending, Mr McKinnon expresses the opinion that your PTSD probably made a significant contribution to his offending by degrading his ability to reason and make sound judgement.” He adds however, that your “abuse of ice is also likely to have made him prone to erratic and impulsive behaviour, raised his aggressive impulses and weakened his capacity for consequential thinking”. I turn to the relevance of his assessment in sentencing you later in my reasons.
34 Eid Aboueid, you completed your formal schooling at Islamic schools, completing half of Year 11 at Ilim College. Having left school, you then completed four years of a carpentry apprenticeship. You intend to complete your apprenticeship upon your release from custody. You have a close relationship with your family, your older sister and three younger brothers. Your family continue to support you. This is evident from a letter written by your sister in support of your plea outlining her concern regarding your use of drugs, the strain your father’s depression placed on you and others in the family and your desire to return home and “turn your life around”.
35 You were assessed by Dr Aaron Cunningham for the purposes of a bail application on 8 November 2016 at Port Phillip Prison. In his report dated 10 November 2016, Dr Cunningham outlines the psychometric testing he administered and expresses the opinion that you present with an Autism Spectrum Disorder, which contributed to your difficulty in adjusting to your father’s mental illness. He says you are easily led and influenced by others. Dr Cunningham says you do not suffer from any mental illness.
36 As with your co-accused, you had developed a significant addiction to ice and at the time of the offending, using between 1.7 to two grams daily at that time. You have previously attended drug and alcohol counselling with Caraniche.
37 You have a limited prior criminal history. In 2014 you were fined, without conviction, for use of cannabis and an unregistered vehicle. In September 2014 you were sentenced to a one-month term of imprisonment wholly suspended for driving whilst suspended and fined for other driving offences and possession of cannabis. These priors are of some relevance in sentencing you for this offending. Your counsel accepts that this offending represents a serious escalation in your offending behaviour.
38 I turn now to your pleas. You each pleaded guilty to the offences on the first day of a scheduled committal hearing in February 2017. The prosecution accepts this is an early plea. You are each entitled to the benefit of your early plea for its utilitarian benefit and in saving the victims the trauma and distress often associated with giving evidence. I also accept that your pleas are an indication of remorse for your offending.
Youthful offenders
39 At 22 and 23 years of age respectively, you are each still youthful offenders. The youth and rehabilitative considerations and principles discussed in cases such as Mills and Azzopardi apply. I have taken into account your relative youth, maturity and the need to tailor a sentence so as to maximise your prospects of rehabilitation in sentencing you.
40 In my assessment, each of your prospects of rehabilitation remain positive – although somewhat more guarded for you, Ali Abdullah given your prior history - and that you will each benefit from supervision, support and monitoring of your engagement in employment, drug counselling and further mental health assessment and counselling as a component of your sentence.
Mental health and Developmental disorder
41 On behalf of you, Mohammed Abdullah it is submitted that the opinion of Mr MacKinnon provides “an evidentiary foundation for the enlivening of the R v Verdins considerations” as you were affected by his condition at the time of the offending, leading to a moderation of the need for sentence to operate as a general deterrent.
42 However, the evidence in support of this contention requires analysis. Mr McKinnon gave evidence in the plea at the request of the prosecution on 25 May 2017. In his evidence, Mr MacKinnon agreed he undertook no psychometric testing during his assessment due to the limitations imposed in having to conduct the assessment by video link. Further, Mr McKinnon agreed that the basis of his assessment was entirely reliant on the account given by you. Mr McKinnon said he completed the assessment within 60 minutes on the one occasion.
43 When asked specifically about whether there was a connection between your diagnosis of PTSD and the offending, Mr McKinnon said that the symptoms of PTSD from 2012 were maintained by being exposed to violence whilst living in the Northern suburbs. He expands upon this proposition in his report, stating that Glenroy is “a rough neighbourhood where there have been many serious crimes committed including shootings, stabbings, run-through’s, assaults, burglaries, car thefts and so on”. However, his report makes no specific reference to you being subjected to or exposed to any particular violence whilst living in Glenroy that would support his conclusion that “living in a constant state of conflict and high drama had become ‘normal’ for you".
44 Having regard to complicating factor of your ice use at the time of the offending and the limitations on Mr McKinnon’s one hour assessment, I am not persuaded there is a direct causal nexus between this offending and his diagnosis of a post-traumatic stress disorder at the time of the offending. I accept however that this diagnosis is relevant in sentencing you by impacting on your decision-making ability at the time of offending.
45 Similarly, in relation to Dr Cunningham’s assessment that you, Eid Aboueid, suffer from an Autism Spectrum Disorder, I consider this relevant in moderating to some degree your moral culpability for the offending given the impact that neurodevelopmental disorder had on your propensity to be influenced and led by others. I further accept that this disorder has the potential to increase your vulnerability in a custodial setting, noting the social and communication deficits outlined in Dr Cunningham’s report.
Sentencing considerations
46 Counsel representing each of you quite properly agreed that the only disposition open is an immediate term of imprisonment. However, in respect of each of you it is submitted that you should be sentenced to a period of imprisonment equivalent to time served, followed by a community correction order, directed at programs to address your offending.
47 Counsel for each of you submitted that there should also be application of the sentencing principle of parity given that you are each to be sentenced for being complicit in the offending with no differentiation in criminality.
48 The Crown accepts the application of the sentencing principle of parity is appropriate, but contends that some disparity is warranted, particularly having regard to the prior criminal history of you, Ali Abdullah. The Crown submits that a sentence of imprisonment followed by a community correction order is not appropriate in your case.
49 The Crown concurs that for you, Mohammed Abduallah and Eid Aboueid a sentence of imprisonment combined with a community correction order is an appropriate disposition, but contends that a further period of imprisonment is warranted having regard to the objective seriousness of the offending and to give effect to the principles of just punishment, general and specific deterrence, denunciation and protection of the community. I agree that with that submission.
50 The Crown accepts that you are each youthful offenders and that your rehabilitation remains a paramount sentencing consideration. However, in your case, Ali Abdullah, the Crown submits that a lengthier sentence of imprisonment is the appropriate disposition, having regard to your relevant prior criminal history and the need for the sentence to operate as a specific deterrent to you committing further offences. However, given my observations regarding your role in this offending, notwithstanding your prior history, I consider the various sentencing considerations are able to be met by a combined sentence of imprisonment followed by a community correction order.
51 In my view some differentiation in sentencing is appropriate in each case, having regard to my observations of the role played by each of you during the offending and, accordingly your moral culpability for the offending.
52 In my view you, Mohammed Abdullah bear a greater moral culpability for your role on the evening and having regard to the additional charge of possessing a firearm. It was an aggravating feature of that offence that the firearm was used by you during the course of the attempted armed robbery.
53 In addition to the matters personal to each of you to which I have referred, I must also take into account other relevant sentencing considerations. I accept that significant weight should attach to your youthfulness and the need to foster and encourage your rehabilitation and to address factors underlying your offending, particularly your use and abuse of the drug ice, by supervised treatment and counselling. General and specific deterrence must still be given weight in the sentence I will impose today, particularly in relation to you Ali Abdullah, having regard to your relevant prior criminal history.
54 This was serious criminal offending. The Court must send a clear message that offending of this kind, aimed at seeking to enforce outstanding drug debts is not to be tolerated. While the influence of general deterrence must be moderated in light of your youth, I consider the need to tailor a sentence that meets all sentencing objectives is best met by a combined sentence of imprisonment followed by a lengthy community correction order in respect of each of you. However, each sentence is to be differentiated having regard to the factors I have outlined.
55 Eid Aboueid, if you could please stand. Eid Aboueid, you are convicted and sentenced on Charge 1, criminal damage and Charge 3, attempted armed robbery, to an aggregate sentence of eighteen months’ imprisonment, noting the offending arose from the same set of circumstances. A total of 411 days will be reckoned as served pursuant to s.18 of the Sentencing Act. The sentence of imprisonment will be followed by a community correction order of two years’ duration. You have been assessed as suitable for such an order and I note it is made with your consent. Under the community correction order you will be subject to the supervision of a community corrections officer, and in addition to the mandatory conditions of the order, you must engage in treatment and counselling for drug abuse and mental health issues and other programs to reduce the risk of further offending. I also intend that you be subject to judicial monitoring by me during the course of the order.
56 Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have imposed a total effective sentence of 3 years’ imprisonment, with a non-parole period of 2 years.
57 Pursuant to s.464ZF of the Crimes Act 1958 I order that you undergo a forensic procedure for the taking of a sample from the inside of your mouth. I make this order noting that it is not opposed and being satisfied that such an order is justified having regard to the seriousness of the circumstances of your offending and is in the public interest. I am required to inform you that if you do not consent to the forensic procedure, then a blood sample may be taken from you and police may use reasonable force to enable that forensic sample to be conducted.
58 Mohammed Abdullah, if you could please stand. You are convicted and sentenced on Charge 1, criminal damage and Charge 3, attempted armed robbery, to an aggregate sentence of eighteen months’ imprisonment followed by a community correction order of two years’ duration. On Charge 2 – possess an unregistered general category handgun, you are convicted and sentenced to six months’ imprisonment of which three months is to be served cumulatively on the sentence of imprisonment imposed on Charges 1 and 3. That is a total effective imprisonment term of 21 months’ imprisonment. A total of 410 days will be reckoned as served pursuant to s.18 of the Sentencing Act. You have been assessed as suitable for a community corrections order I note that it is made with your consent. Under the community correction order you will be subject to the supervision of a community corrections officer, and in addition to the mandatory conditions of the order, you must engage in treatment and counselling for drug abuse and mental health issues and other programs to reduce the risk of further offending. I also intend that you be subject to judicial monitoring by me during the course of the order.
59 Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have imposed a total effective sentence of three years, six months’ imprisonment, with a non-parole period of two years and eight months.
60 Pursuant to s.464ZF(2) of the Crimes Act 1958 I order that you undergo a forensic procedure for the taking of a sample from the inside of your mouth. I make this order noting that it is not opposed and being satisfied that such an order is justified having regard to the seriousness of the circumstances of your offending and that is in the public interest. I am required to inform you that if you do not consent to the forensic procedure, then a blood sample may be taken from you and police may use reasonable force to enable that forensic sample to be conducted.
61 Ali Abdullah, if you could please stand. You are convicted and sentenced on Charge 1, criminal damage and Charge 3, attempted armed robbery, to an aggregate sentence of 23 months' imprisonment. A total of 411 days will be reckoned as served pursuant to s18 of the Sentencing Act. The sentence of imprisonment will be followed by a community correction order of three years’ duration. You have been assessed as suitable for such an order and I note it is made with your consent. It will commence following completion of your term of imprisonment. Under the community correction order you will be subject to the supervision of a community corrections officer and in addition to the mandatory conditions of the order you must engage in treatment and counselling for drug abuse and mental health issues and other programs to reduce the risk of further offending. I also intend that you be subject to judicial monitoring by me during the course of the order.
62 Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have imposed a total effective sentence of four imprisonment, with a non-parole period of three years.
63 Finally, I make an order pursuant to s.151 of the Firearms Act that the firearm and ammunition seized by police be forfeited to the Minister, noting that the order is not opposed.
64 Finally in relation to the judicial monitoring, on each community correction order, I order that these matters be listed before me for judicial monitoring on 4 June 2018 at 10 am at this court.
65 They are the orders that I have made. Are there any queries or questions in relation to the order?
66 MS KADDECHE: Your Honour, if we could just have a brief moment.
67 HER HONOUR: Yes.
68 MS KADDECHE: If I could speak to the Crown and my friends.
69 HER HONOUR: Yes, certainly. I'll stand down, thank you.
(Short adjournment.)
70 MS KADDECHE: Thank you, Your Honour for that time.
71 HER HONOUR: Thank you. There was a question about s.44 was there?
72 MS KADDECHE: Correct, that's exactly right.
73 HER HONOUR: Yes.
74 MS KADDECHE: In terms of and I don't want to speak for everybody on this side of the bar table but I might and I will be corrected if I'm wrong but it would seem that it's not permissible at a sentence imposed of more than 12 months but I understand the Crown have a different view and they say that it is permissible so I will allow.
75 HER HONOUR: This was raised when we were - - -
76 MS KADDECHE: At the time
77 HER HONOUR: At the time.
78 MS KADDECHE: Yes.
79 HER HONOUR: And no issue was taken by defence that it was not permissible.
80 MS KADDECHE: It was put on the basis, I understand, that it - that's correct. At the time. I'm not sure whether I specifically raised it, I can't recall but there were no figures - - -
81 HER HONOUR: Sure but what was being anticipated was that - and I recall we raised it, that when time reckoned as served because there was a lot here - - -
82 MS KADDECHE: M'mm - - -
83 HER HONOUR: That after deduction of that provided the term of imprisonment was 12 months or less that s.44 envisages that that can occur.
84 MS KADDECHE: Well, I can't specifically recall what was raised on the last occasion.
85 HER HONOUR: Yes, yes.
86 MS KADDECHE: But I understand that the Crown - and it might not, it might have gone through to the keeper if I could put it, use the colloquial term, because of the Crown's attitude and they, they believe that it is permissible so I will allow my friend to confirm that.
87 HER HONOUR: Thank you.
88 MS MELLIOS: Your Honour, unfortunately I was not here on the last occasion so I can't confirm or deny about those conversations.
89 HER HONOUR: Yes.
90 MS MELLIOS: However, I have sought advice from our office and my reading of s.44(1) is that if the period of imprisonment left to be served after the deduction of a period of custody is less than one year, that it is permissible.
91 HER HONOUR: Yes.
92 MS MELLIOS: Yes.
93 HER HONOUR: And that that is, I'm happy to hear from defence if defence want to make any submission as to how they say - - -
94 MS KADDECHE: It's perhaps - - -
95 HER HONOUR: - - - the plain wording of s.44(1) means something other than how that's being construed.
96 MS KADDECHE: Sorry, Your Honour. I understand that there is a Court of Appeal decision on point.
97 HER HONOUR: Yes.
98 MS KADDECHE: It might perhaps be prudent to get that decision. I understand it's a matter of Grech. I'm not sure whether that's the one that the Crown are relying upon but Boulton was most definitely before the change in the two years down to a 12 months.
99 HER HONOUR: Certainly, certainly.
100 MS KADDECHE: Which was changed in March.
101 HER HONOUR: And that was the only change made.
102 MS KADDECHE: Yes.
103 HER HONOUR: Was from 2 to 12 months.
104 MS KADDECHE: To 12 months but it - sorry.
105 HER HONOUR: Does the prosecution have a copy of that Court of Appeal decision?
106 MS MELLIOS: I don't have it on me, Your Honour. I do have the decision of Boulton which I have been forwarded because I don't have it with me but I am told the relevant passages are from Passage 236 to 238.
107 HER HONOUR: Yes.
108 MS MELLIOS: I haven't had a chance to read that yet, Your Honour. In any event, the prosecution don't take issue with what Your Honour has sentenced.
109 HER HONOUR: Do the parties want an opportunity to review that authority?
110 MS KADDECHE: It is a bit difficult because the Crown are saying it is going to be simple and it is counter-productive for my client to say that it is not permissible but I think that it's perhaps prudent that we do look at that. I understand that it is the decision of Grech prior to and then make further submissions if it is not. I believe that Grech is on point.
111 HER HONOUR: Can that be searched quickly? Have we got Grech there?
112 MS KADDECHE: I have only got my phone, Your Honour so my apologies.
113 HER HONOUR: That's all right. We have got slightly bigger technology.
114 MS KADDECHE: No, that's - I've been shown - I believe it is, it is this, this year or - - -
115 MR MAGAZIS: Your Honour, my understanding of Grech was that it was a decision that related, it was a decision of last year, approximately October last year. My understanding is there was a decision relating specifically to pre-sentence detention and whether the court can disregard pre-sentence detention.
116 HER HONOUR: So under s.44? Under s.44?
117 MR MAGAZIS: Not certain Your Honour, whether it is under s.44. The decision of Grech related to whether according or imposing a sentence of a terms of imprisonment and a combined community correction order could disregard any pre-sentence detention in coming to the calculation of the terms of imprisonment to be imposed.
118 HER HONOUR: That's slightly different then, isn't it?
119 MR MAGAZIS: Yes.
120 HER HONOUR: That's a different issue. It is this issue - - -
121 MR MAGAZIS: It is not post March of this year.
122 HER HONOUR: I had a recollection really from about five years ago, maybe four years ago that this very issue was looked at by one of the higher courts and look, I am happy to have the parties review any potential authority but it should be on s.44(1) really.
123 MR MAGAZIS: Yes, Your Honour.
124 HER HONOUR: It seems to me that the plain language of the section permits what I have done but I am happy to give the parties time to look at the authorities.
125 MS MELLIOS: Yes, Your Honour. Perhaps if we bring the matter back if there is an issue.
126 HER HONOUR: Are you able to do so over the luncheon adjournment?
127 MS MELLIOS: Yes, Your Honour.
128 HER HONOUR: And we will come back at 2 pm.
129 MS MELLIOS: Yes, Your Honour.
130 HER HONOUR: Is that suitable?
131 MS KADDECHE: Yes, Your Honour.
132 HER HONOUR: All right, thank you. All right. If you could kindly take each of the accused. Please, sorry. Sorry, if you could be just taken downstairs, thank you.
(Offenders removed.)
133 HER HONOUR: All right, thank you. I will stand down until two.
134 MS KADDECHE: Apologies again, Your Honour. I do believe that there is something in existence from March. The change from the 12 months, two years to the 12 months but I will do my best to find that authority.
135 HER HONOUR: Certainly. All right, I will stand down until two.
(At a later stage)
136
MS KADDECHE: Your Honour, I will not say much more. I did forward the case of R v Tannous to Your Honour. It is not directly on point and
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137 HER HONOUR: That was about the fixing of a non-parole period. Am I correct?
138 MS KADDECHE: Non-parole period, correct, that's correct, and also the, we made reference to the DPP in Grech. I did not send a copy through to Your Honour in relation to that but that also deals with that same precise issue in relation to non-parole.
139 HER HONOUR: So it is slightly different, yes.
140 MS KADDECHE: It is not exactly on point in terms of what has been raised here but I understand that the position from the Crown hasn't changed. That it is permissible so I won't say any more, Your Honour.
141 HER HONOUR: All right. Ultimately, it is a matter for the parties as to whether they wish to take any of the matters further.
142 MR MAGAZIS: I don't take it any further, Your Honour, on behalf of Mr Aboueid.
143 COUNSEL: Nor do I, Your Honour.
144 HER HONOUR: Thank you. So I will have the community correction orders shown to each of you so that you're content with those and then they can be signed by your clients, thank you.
145 (Orders signed.)
146 All right, those other orders have also been signed and have been provided to you?
147 MS MELLIOS: Yes, Your Honour, I believe your associate has it now, thank you.
148 HER HONOUR: Thank you. If you could take them to the men.
149 (Offenders removed.)
150 HER HONOUR: Thank you for your assistance. I will adjourn.
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