Director of Public Prosecutions v Aboueid
[2021] VCC 1327
•10 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01206
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YAHYA ABOUEID |
---
JUDGE: | HER HONOUR JUDGE LEIGHFIELD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2021 (Sentence Indication); 10 September 2021 | |
DATE OF SENTENCE: | 10 September 2021 | |
CASE MAY BE CITED AS: | DPP v Aboueid | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1327 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law
Catchwords: Sentence – arson – use firearm in public place – theft – failing to comply with an order to provide assistance to access data – guilty plea after sentence indication – parity – delay – impact of Covid-19
Sentence: Charges 1 and 3 – aggregate term of imprisonment 27 days; pre-sentence detention of 27 days declared as time already served; Charges 1, 2, 3 and 4 – community correction order for a period of 36 months with 240 hours of unpaid community work, supervision, assessment and treatment for drug issues, alcohol issues, and mental health issues, assessment and participation in programs to address offending, non-association condition, and judicial monitoring
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. R Champion | Office of Public Prosecutions |
| For the Accused | Mr C. Farrington | Milides Lawyers |
HER HONOUR:
Introduction
1Yahya Aboueid, you have pleaded guilty to four charges being theft (Charge 1), use a firearm in a public place (Charge 2), arson (Charge 3), and failing to comply with an order to provide assistance to access data (Charge 4). The maximum penalty for theft and use a firearm in a public place is 10 years’ imprisonment, for arson is 15 years’ imprisonment, and for failing to comply with an order to provide assistance to access data is five years’ imprisonment.
2The offences arise from a series of incidents which occurred on 14 July 2018 and 1 August 2018. At the time, you were 25 years of age.
Circumstances of the Offending
3
The full circumstances of the offending for which you fall to be sentenced, are set out in the ‘Summary of Prosecution Opening’ dated 9 September 2021. However, in summary, during the early hours of 14 July 2018, you and a co-accused,
Mr Mustafa Yuksel, were travelling together in a stolen Hyundai i30 Hatch (Charge 1 – theft). It is not alleged that either yourself or Mr Yuksel were responsible for stealing the vehicle, rather the theft charge is based on the use of the Hyundai, whilst knowing that the car was stolen.
4The Hyundai travelled from Brunswick to Clarendon Street in South Melbourne. At approximately 1.51am, it pulled up outside the City of Ink Tattoo Parlour at 216 Clarendon Street and either yourself, or Mr Yuksel, exited the vehicle and fired five shots at the tattoo parlour from a .38 firearm (Charge 2 – use a firearm in a public place). No one was at the premises when the shots were fired, nor was there anyone in the immediate vicinity of the incident. You have pleaded guilty to this charge on the basis of being complicit in the offence – the prosecution being unable to prove beyond reasonable doubt, which of the two of you actually fired the weapon.
5
After the firearm was discharged, you and Mr Yuksel both then travelled back to Brunswick in the Hyundai and met with a third co-accused, Mr Hakan Akbal.
6HER HONOUR: Mr Akbal. Mr Aboueid, are you on the phone?
7OFFENDER: Yeah.
8HER HONOUR: Are you talking to someone - - -
9OFFENDER: Hello.
10HER HONOUR: - - - Mr Aboueid?
11OFFENDER: Sorry?
12HER HONOUR: Are you talking to someone on the phone at the moment?
13OFFENDER: No.
14HER HONOUR: Very well. You just need to make sure that you are not - that you are listening to what is being said, all right?
15OFFENDER: Yeah, yeah, I've been - I'm on the line. You're telling me the Hyundai i30 - I'm on the line.
16HER HONOUR: Very well, good.
17OFFENDER: (Indistinct words).
18HER HONOUR: All right. So Mr Akbal drove to meet you in a white Ford and brought with him a jerry can of petrol. Less than thirty minutes after the shooting had occurred, that petrol was used to set the Hyundai alight in a laneway off Donald Street in Brunswick (Charge 3 – arson). Again, you have pleaded guilty to this charge on the basis of being complicit in the offence, as the prosecution cannot prove beyond reasonable doubt as to which one (or more) of the three of you actually set fire to the vehicle. However, it is clear that the Hyundai was set alight for the purpose of destroying evidence connecting yourself and Mr Yuksel to the shooting, and that all three of you were fully aware of that purpose. The three of you then left the scene in the White Ford with Mr Akbal driving.
19Police who were patrolling the area on an unrelated job located the Hyundai fully ablaze, with the adjacent fence also being alight. The police officers called the Fire Brigade who attended and extinguished the fire. At around the same time as police officers were attending to the scene of the arson, the white Ford, in which the three of you were travelling, was intercepted by a different police unit on Moreland Road for driving without headlights on. The jerry can was still in the vehicle at this time.
20The three of you were arrested, and interviewed on 14 July 2018 at the St Kilda police station. You gave a predominantly ‘no comment’ record of interview and were ultimately released, without being charged, on this day.
21During the subsequent investigation, there were a number of items of evidence of particular relevance which were uncovered. Located in the Ford vehicle, in which the three of you had been travelling, was a key to the Hyundai; and in the burnt out Hyundai was a .38 calibre snub-nose revolver, with five fired casings still in the cylinder. There were some particles highly consistent with gunshot residue found on your hands, the clothing you were wearing, and on a pair of white Mighty Rigger gloves found in the white Ford, which could potentially be linked to you via DNA results – albeit it was conceded at committal by the expert witness that the deposit of all of the particles could have occurred by transference. Similar particles were found on Mr Yuksel’s hands, clothing and a different pair of gloves, which could potentially be linked to him through DNA evidence. No gunshot residue was located on Mr Akbal’s hands or clothing.
22On 1 August 2018, you were again arrested, and a search warrant was executed at your home. During the search, police located four mobile phones and requested, pursuant to s465AA of the Crimes Act, that you provide passcodes for those phones. You refused to do so. You were then interviewed for a second time and again made a predominantly ‘no comment’ record of interview. During the interview, police again asked for access to the mobile phones, and you refused. This conduct constitutes Charge 4 – failing to comply with an order to provide assistance to access data.
23After being interviewed, you were charged and remanded in custody, and were not released on bail until 27 August 2018. You therefore have 27 days of pre-sentence detention.
Prior Convictions and Subsequent Matters
24You have a prior criminal history, having appeared before the courts on a number of occasions between 2012 and mid-2016.
25A vast majority of your appearances relate to driving offences and it is fair to say that you have an appalling driving record when it comes to driving whilst your licence is suspended or disqualified.
26Of greater relevance to the current proceedings, you also have prior convictions for a criminal damage in 2012, for which you received a $1000 fine; for injury and assault-related offences in 2014, for which you received a three month term of imprisonment, wholly suspended for 12 months; and for possessing a controlled weapon in 2014, for which you received a $500 fine. You have also, on a number of occasions, breached court orders including bail, community corrections orders and licence disqualifications and suspensions.
27This current offending is however, by far, the most serious offending which you have been involved in and, despite having numerous appearances before the court, the period you spent on remand for the current offences was your first time in custody.
28I am told that you also have five pending matters, some of which you are seeking to contest. The most serious of the outstanding matters is the possession of a police baton, which was located by police when a search warrant was executed at your home on 15 March 2021. That matter may resolve to a plea. Of the four other matters, one concerns a speeding charge which you are seeking to contest on the basis of necessity, one relates to failing to wear an appropriate face mask in public, and the other two are both charges of failing to stop at stop signs, which were originally the subject of infringement notices, but which you have sought to contest in court. Given that none of these matters have as yet been determined, they have limited relevance to sentencing you in the current matter, albeit that it cannot be said on your behalf that you have not come to the attention of the police in some form during your three years on bail awaiting the resolution of this matter. Of some comfort though is that, even if proven, all of these matters are of limited seriousness, especially when compared to the current offending before the court.
Gravity of the Offending
29As identified in the prosecution submissions, your offending in this matter is serious – irrespective of whether you were the person who fired the shots or set the vehicle alight. You were involved in an incident where a gun was discharged five times in a public place, where four of the bullets which were discharged, passed into a building. You travelled to and from the scene in a stolen vehicle which on the face of it would not be able to be connected to you or Mr Yuksel. You were then involved in an attempt to completely destroy the evidence connecting yourself and Mr Yuksel to the offending.
30As I indicated when sentencing Mr Yuksel, I am of the view that there must have been a level of premeditation involved in this offending. This is reflected both in the use of a stolen vehicle to travel to and from the City of Ink; and the seamless manner in which that stolen vehicle was driven from Brunswick to South Melbourne, paused for the shots to be fired, and was then driven immediately back to Brunswick for the liaison with Mr Akbal, who had a jerry can of petrol ready to destroy the evidence, and the Ford ready to drive you all away from the scene of the arson. For the same reasons, I also accept Ms Champion’s submission that this was a targeted attack – insofar as it is clear from the manner in which the incident unfolded, that the City of Ink was the intended target of this incident. However, as is the case with Mr Yuksel, whilst I may have some suspicions as to the motive for the offending, there is simply insufficient evidence upon which I could be satisfied, as to the actual motivation behind the discharge of the firearm.
31When considering the relative seriousness of the charges, I note that whilst serious, the discharge of the firearm occurred in the early hours of the morning, when there was no-one in the immediate vicinity of the discharge and where no person was placed in danger. This reduces the gravity of the firearm offence to some degree.
32However, I consider that both the theft of motor vehicle and the arson fall towards the mid to higher range of those kinds of offences. Whilst the value of the vehicle was not in the highest order, and no person was placed in immediate danger by the arson, both offences were committed in an attempt to avoid responsibility, and escape apprehension, for the shooting incident. This elevates their seriousness considerably, as against other similar examples of these offences, which were not committed for the purposes of avoiding apprehension for another serious crime.
33Insofar as your failure to comply with the order to provide assistance to access your phones is concerned, this is also a serious matter, but to a lesser degree than the other offences which I am sentencing you for today. It is not suggested that there are any particular aggravating features of that offending, so I do consider it to fall towards the lower end of such offending, bearing in mind that it is always a serious matter to obstruct police from being able to access and consider potential evidence.
Guilty Plea
34This matter has a long history – with the initial filing hearing being more than three years ago, on 2 August 2018. The matter was initially listed for a contested committal hearing in February 2019, but could not proceed at that time. It was adjourned to 24 May 2019, and then further adjourned part-heard to 18 June 2019. Only two witnesses were called for cross-examination on your behalf at the contested committal, being the firearms expert and the informant. You did not seek at any point to cross-examine any civilian witnesses. At the conclusion of the hearing, you were committed to stand trial on all but two charges.
35The charges the subject of this indictment were then listed to proceed as a trial in the County Court on 31 August 2020, however, due to the impact of COVID-19 restrictions, the trial date had to be vacated.
36Shortly prior to when the trial was due to commence, on 8 July 2020, one of your co-accused Mr Akbal, entered a plea of guilty to one charge of arson, and one charge of assisting an offender. He was sentenced on 27 August 2020.
37
Your second co-accused, Mr Yuksel, then pursued a sentence indication on
9 October 2020, and after receiving an indication that the court was not likely to impose an immediate term of imprisonment, he entered a plea of guilty in respect of one charge each of theft, use firearm in a public place, arson and possess drug of dependence. He was sentenced on 21 October 2020.
38Your matter had been adjourned from 1 July 2020 and was not listed to come back to court until 14 April 2021, for a final directions hearing. On 14 April 2021, your matter was administratively adjourned to 30 July 2021, for a sentence indication hearing before me. In response to an indication from me that I would not impose an immediate term of imprisonment, you were arraigned and pleaded guilty to each of the four charges on the indictment as it was framed at that time. The matter was then adjourned to today’s date for a plea. I note that in the interim, the particulars of Charge 4 on the indictment have been amended, and you were arraigned for a second time today, again pleading guilty to each of the charges.
39Despite the significant history to this matter which sees your plea coming before the court more than three years after the initial filing hearing, I do still consider your plea, globally, to be a valuable plea of guilty, for a number of reasons.
40Firstly, whilst the prosecution case on the arson was, in my view, a relatively strong circumstantial case, I am of the view, as I was with Mr Yuksel, that there were arguments open to you to pursue, in respect of the charge of discharging a firearm.
41Secondly, I accept that your pleas of guilty have facilitated the course of justice, which is particularly important given the impact of the COVID-19 pandemic, on the smooth running of the criminal justice system.
42Thirdly, I accept that you have saved almost all of the witnesses from having to give evidence in this case, and saved the community the time and expense of a trial.
43Fourthly, I accept that your pleas reflect an acknowledgement by you of responsibility for your part in the offending.
44Finally, I note that I am of the view that the fact that your plea of guilty was entered almost a year after that of your co-accused Mr Yuksel, does not diminish the value of your plea as against the value of his plea. It has been apparent since April of this year, that you wished to try and resolve this matter through a sentence indication, and the delay between then and now is due to the availability of the court to hear your matter, not through any fault of yours. Further, despite there having been a substantial passage of time, you asked for a sentence indication and entered your pleas of guilty, in circumstances where your matter was in a ‘holding pattern’, without a further trial date having been listed and without the matter having progressed any further than Mr Yuksel’s had.
45Accordingly, despite your pleas of guilty not having been entered at the earliest opportunity, I have still given you a significant discount for those pleas.
Personal circumstances
46You are now 28 years of age. You are one of four children born to your mother and father, and you also have three older half-siblings from your father’s previous marriage. You have always had close relationships with your family members, and you considered your father to be your best friend. Sadly, he passed away last year from a heart attack. You are currently living with your mother and she continues to be supportive of you, as do your siblings.
47You were initially raised in Brunswick and attended Bellevue Primary School, in Brunswick East. You had difficulties at school, struggling to attain basic literacy skills and being made to repeat Grade 3. In addition, you had significant issues with obesity from an early age, which impacted upon your self-esteem.
48When you were 13 years of age, your family moved from Brunswick to Broadmeadows and you attended Box Forrest High School. As with primary school, you faced significant challenges in the mainstream school setting. You were bullied due to your physical appearance; and continued to struggle with your education. You became very aggressive towards other students and were suspended on a number of occasions, before ultimately being expelled at the beginning of Year 9. You subsequently attended a secondary school in Coburg, which specialised in providing education for young males, with significant behavioural challenges, and which provided more hands-on education. Whilst at that school you participated in training for boiler making, horticulture, cabinet making and completed a Certificate II in Hospitality.
49Whilst you were at school, you commenced drinking alcohol and by your late teens, you were binge drinking on weekends. You also commenced using cannabis, and your use rapidly escalated to the point where you became reliant on cannabis, to alleviate feelings of depression and inadequacy.
50Upon leaving school, you gained casual employment at several fast food outlets, but struggled to maintain this employment, due to weight issues and drug abuse problems. You were also, at one point, involved in establishing a Shisha shop and restaurant, but this venture was ultimately unsuccessful. You have otherwise experienced long periods of unemployment.
51During one of these periods of unemployment, you joined the Comancheros Motorcycle Club. Whilst joining the club provided you with a sense of being accepted and socially connected with others, it had other significant disbenefits. You were socialising with negative peers, your drinking increased to the point where you were drinking heavily on a daily basis, and you commenced using a variety of stimulant-related drugs, including speed, ice and cocaine. It is notable that your criminal history commences in 2012, when you were 20 years of age and continued throughout the next four years, aligning with your difficulties in finding employment, your interaction with the Comancheros and your increased abuse of drugs and alcohol.
52Then, in 2016, you ended your association with the Comancheros, after you were the victim of a shooting, whereby a car intercepted yours and several men in balaclavas jumped out of their car and fired a number of bullets at you, shooting you in both legs. You managed to drive yourself to hospital, despite having life threatening injuries, and needing to undergo emergency surgery to avoid the amputation of both of your legs. You spent some eight months in hospital and had to undergo extensive rehabilitation. You still experience significant pain from your injuries to this day and are medicated with Lyrica, which provides you with some relief. As noted by Ms Champion, it is somewhat concerning that having been the victim of such an incident yourself, and knowing the significant toll a gunshot wound can have on an individual, that you are now facing court for an offence which involves the discharge of a firearm in a public place.
53Post the shooting incident in 2016, you managed to reduce your intake of alcohol, and have subsequently also managed to reduce your drug use, albeit you still have some difficulties with cannabis. You had a relapse into alcohol abuse in 2020, after the death of your father, but in more recent months, have again managed to reduce your intake.
54I am told that your older brother Ali, who is married and works as a truck driver, has been particularly supportive of you in recent times. As a result of the support given to you by Ali, and your discussions with him, you now have a goal to try and obtain your forklift licence and to obtain work either as a forklift driver or a truck driver. This of course may be put on hold by reason of any further driver licence suspensions, which are imposed as a result of your current offending, and your outstanding matters if you are found guilty of them, but it places you in a position of having a goal to work towards for the future, and an incentive to remain away from substance use.
Mental Status
55You were assessed by Dr Mathew Barth, psychologist, on 14 and 19 July 2021 in respect of your mental health, and a report authored by Dr Barth was tendered on your behalf on the plea.
56Dr Barth noted that you have a history of mental health issues suffering from multiple bouts of depressive mood disturbance, including periods of suicidal ideation. You have also experienced ongoing anxiety, in particular in the aftermath of the shooting in 2016. In his opinion, you currently meet the DSM-5 criteria for ‘Major Depressive Disorder, with Anxious Distress – Recurrent Episodes of Moderate Severity’.
57Additionally, Dr Barth advised that you present as a concrete thinker, with simplistic social reasoning which results in you reducing even complex problems to simplistic ‘black and white’ terms. This results in you making poor decisions, and choosing your course of action based on short-term considerations, (such as excitement or pleasure), rather than on their long-term impacts. Despite those challenges, in Dr Barth’s opinion, your moral reasoning is intact.
58In Dr Barth’s opinion, your rehabilitation in the community is dependent upon you receiving ongoing mental health treatment, to address your emotional distress and self-esteem issues, which have developed from your childhood, and also to assist you in processing the grief associated with your father’s death and the residual anxiety you experience from being shot in 2016. Further, you also require substance abuse treatment, including a supervised detoxification program and advanced relapse prevention training. Dr Barth notes that you are currently in the very early stages of addressing your drug addiction, but that you have some insight into the issues associated with your substance use, particularly in the context of your lifestyle and attempts to self-medicate during periods of grief and depression. He further noted that you understand the need for personal change and have motivation to make those changes.
59Your counsel relied on the contents of Dr Barth’s report, and in particular, the diagnoses he makes, and his opinion that you remain at risk of deterioration of your mood in the aftermath of sentencing, particularly if sentenced to a further period of custody. Whilst Mr Farrington has not suggested that your mental health issues should result in any reduction of your moral culpability for the offending, or a reduction in the need for general or specific deterrence, Mr Farrington did submit that the matters raised in Dr Barth’s report, make it apparent that it is in both your interest, and the community’s interest, that any sentence I impose, have a strong therapeutic focus. He also submitted that I should take into account that any additional term of imprisonment which I might impose, would be more burdensome upon you than another offender without the same issues.
60
I note that in oral submissions today, Ms Champion did not seek to address
Mr Farrington’s submissions, in respect of the impact of your mental health on the burden of imprisonment, given my previous indication that a further term of imprisonment will not be imposed.
61
Ultimately, I accept Dr Barth’s opinion as to the status of your mental health, how both your mental health issues and your drug and alcohol issues have arisen, and their impact upon you. In my view, the most significant matters arising from
Dr Barth’s report, insofar as sentencing is concerned, are his opinions as to what will be required to ensure your ongoing rehabilitation, and your current state of insight and motivation to address your issues. These aspects are particularly important to an assessment of your prospects for rehabilitation; and the weight to be given to rehabilitation and community protection in the sentencing synthesis.
Relevance of Delay and Prospects of Rehabilitation to Sentencing Purposes
62Three years have now passed since the offending.
63During that time you have been on bail – with very strict conditions. The conditions on your bail included living at a static address, thrice-weekly reporting, a curfew and a number of other conditions which were restrictive of your movement, associations, and use of technology.
64During that time, you have also had these charges hanging over your head – the stress of which, in Dr Barth’s opinion, has exacerbated your mental health issues. The fact that you, up until the point of entering your pleas, were exercising your right to contest the charges, does not impact upon the assessment of the extent to which the delay is mitigatory. I accept that a period of three years to progress from charge to plea with, I might add, no trial date in sight, is a considerable time to have charges hanging over your head and I take that into account in your favour.
65Taking into account all of the material before the court, and in particular, the material in Dr Barth’s report, prosecuting counsel submitted that your prospects of rehabilitation should be considered to be guarded. By contrast, your counsel submitted that your prospects should be considered reasonable and that any sentence imposed should be structured to afford you with the opportunity for rehabilitation.
66I accept the submissions of both counsel. I agree that there must be a degree of circumspection, when considering your prospects for rehabilitation, given your prior criminal history and your history of drug and alcohol abuse. However, you are now in a position where you have the support of family; you have stepped away from your previous associations with negative peer influences; you have undertaken some preliminary steps in addressing your drug and alcohol issues including reducing your intake of substances and undertaking some sessions of drug and alcohol counselling; you have gained some insight into the issues which you need to address; you have expressed a motivation to engage in treatment to address those issues; you have an employment goal to work towards; and you have, for the first time, served a short period of time in custody. In the circumstances, I am of the view that rehabilitation should be given some weight in the sentencing synthesis, and further, that rehabilitation also has a part to play when considering how the sentencing purpose of community protection can be achieved in this case.
67I do note, however, that any sentence which I impose must also reflect the gravity of the offending in this case and must deter you from offending in the same manner in the future. Your conduct must also be denounced, and substantial weight must be given to general deterrence in a bid to deter others from behaving in the way you did.
Parity
68As indicated earlier, both of your co-accused have already pleaded guilty to offences in respect of their part in this offending.
69On 8 August 2020, Mr Akbal entered pleas of guilty before Her Honour Judge Cannon to one charge of assisting an offender, (in respect of the offence of using a firearm in a public place) and one charge of arson. On 27 August 2020, he was convicted and ordered to undertake a community corrections order for a period of two years with special conditions to perform 100 hours of unpaid community work, be under the supervision of Corrections, participate in programs and/or courses that address factors relating to offending behaviour, and to not contact or associate with either yourself or Mr Yuksel for the period of the order.
70On 16 October 2020, Mr Yuksel pleaded guilty to one charge each of theft, using a firearm in a public place, arson and possession of a drug of dependence. He was fined in respect of the drug offence. On the charges of theft and arson, he was convicted and sentenced to an aggregate term of imprisonment of 27 days. In respect of the theft and arson charges, and also on the charge of using a firearm in a public place, he was additionally placed on a community corrections order for a period of 30 months, with special conditions, to perform 200 hours of unpaid community work, be under the supervision of Corrections, participate in programs and/or courses that address factors relating to offending behaviour, and not to contact or associate with either yourself or Mr Akbal for the period of the order.
71Your counsel submitted that parity – in particular with Mr Yuksel – is a relevant consideration in this case. He submitted that whilst there are different mitigating factors applicable to yourself and Mr Yuksel, they ultimately balance each other out, such that your sentence should not be disparate from that of Mr Yuksel.
72By contrast, prosecuting counsel submitted that there are relevant distinguishing features between you and both of your co-offenders regarding sentence – for example, your prior convictions and less positive prospects of rehabilitation – which would justify a different sentence being imposed upon you than on your co-offenders.
73When looking at the issue of parity in this case, there are two distinct aspects which inform the application of the principle – being the role of each of you in the offending and your individual personal circumstances.
74
Insofar as the offending is concerned, there is nothing to distinguish you from
Mr Yuksel in respect of Charges 1, 2 and 3, as you both fall to be sentenced on the same factual basis for those charges. The additional offences which each of you committed (subject of Charge 4 on each of your indictments), whilst different in nature, are much less serious than Charges 1, 2 and 3 and have little, to no, impact when considering parity.
75Your offending can, however, be distinguished from that of Mr Akbal, given your involvement in the additional offences of using a firearm in a public place and theft of the motor vehicle, which makes the gravity of your overall offending more serious than Mr Akbal’s.
76Turning to your personal circumstances, there are some distinguishing features between you and both of the other co-accused, in that each of them have no prior or pending criminal matters, strong work histories, ongoing employment, significant supports in the community, and good prospects of rehabilitation. Whilst you can call in aid some mitigation of sentence by reason of your mental health issues, which is not available to the other co-accused, you do have a prior criminal history, are unemployed, have a history of drug and alcohol issues and have guarded prospects of rehabilitation. This leads in turn to a need to place weight on the sentencing purposes of specific deterrence and community protection in your case, which – in particular – was not required in the case of Mr Yuksel.
77Accordingly, whilst it is appropriate that you be sentenced to a more severe sentence than that imposed on Mr Akbal, to reflect the greater gravity of your offending, and a more severe sentence than that imposed on Mr Yuksel, to reflect the need for greater weight to be placed on specific deterrence and community protection in the sentencing synthesis, the sentences imposed on both Mr Akbal and Mr Yuksel are a relevant consideration, in determining what would be a just punishment in your case.
Impact of COVID-19
78In determining the type of sentence to be imposed, I also take into account that if you were to be imprisoned again now, the burden of any further period of imprisonment would be increased by reason of the COVID-19 restrictions, which are currently in force. At minimum, you would be subject to a 14 day period of quarantine, would be unable to have any face to face contact with your family and friends, and would have limited ability to access courses and programs whilst in custody. Further, any term of imprisonment during the current pandemic would lead to an increased anxiety on your part, as to not only your own health in custody, but also the health of your family in the community.
Submissions on Sentence
79Turning now to the sentencing submissions which were made in this case.
80Mr Farrington, on your behalf, at all times submitted that an appropriately structured community corrections order, combined with a term of imprisonment, commensurate with the period of time which you have already served on remand, can adequately address and reflect all of the sentencing considerations in this case.
81I note that Ms Champion, by contrast, submitted on the sentencing indication that given the nature and gravity of the offending, combined with your criminal history and the requirement to give sufficient weight to general deterrence, the only sentence reasonably open to the court is one which requires you to serve an immediate term of imprisonment, (that is a term greater than you have already served). Ms Champion did, however, concede at the sentence indication, that it would be open to the court to combine this term of imprisonment with a community corrections order.
82Given the submissions of each counsel, I had you assessed for a community corrections order prior to the plea commencing today. You have been assessed as suitable with the assessing officer making note, that during the assessment, you showed some insight into your offending behaviour and the need to address your abuse of drugs and poor emotional control. It was recommended that the order contain a number of treatment conditions, as well as unpaid community work, supervision, judicial monitoring and a non-association condition. It was further recommended that the order be at least 18 months in duration, to allow for your assessment and participation in programs and/or treatment as recommended by the Forensic Intervention Services Branch.
Is a Further Term of Imprisonment Required to Meet all of the Sentencing Purposes?
83As is apparent from the sentence indication which I gave on 30 July 2021, I agree with defence counsel that a term of imprisonment commensurate with time already served on remand, combined with a community corrections order can sufficiently address the sentencing purposes in this case.
84UNIDENTIFIED SPEAKER: (Indistinct words).
85HER HONOUR: Mr Aboueid are you still with us?
86OFFENDER: Yeah I'm here.
87HER HONOUR: Very well. It's just getting - we're hearing some talking so it's not clear to me whether you're talking or whether it's someone else, so that's why I thought I'd check.
88OFFENDER: No, I'm outside, I'm outside.
89HER HONOUR: As I have already said on a number of occasions, in both this sentence and in my reasons for sentence for Mr Yuksel, I consider the offending to be serious and substantial weight must be given to principles of general deterrence and denunciation. In your case, weight also needs to be given to specific deterrence and community protection. However, s5(4C) of the Sentencing Act 1991 provides that a court must not impose the confinement of an offender, unless it considers that the purpose or purposes for which the sentence is imposed, cannot be achieved by a community corrections order.
90Having carefully considered the various sentencing considerations raised by this case, I am of the view that there is sufficient scope for me to address each of the sentencing purposes, in respect of all of the charges, by imposing an aggregate term of imprisonment commensurate with time served in respect of Charges 1 and 3, together with a ‘properly-conditioned’ community corrections order of significant length on all charges.
91In my view, the gravity of the offending and the need to address deterrence and denunciation, can be met through both the length of the correction order imposed and the conditions imposed upon it, in combination with the period of imprisonment already served; rather than requiring a further term of imprisonment. Further, I am of the view that your rehabilitation and long-term community protection are best addressed, through the imposition of a community corrections order, where you can be under the supervision and guidance of Corrections for an extended period of time. As noted above, there is a need in your case to place greater weight on specific deterrence and community protection in sentencing, than there was in the case of Mr Yuksel. This can, in my view, also be adequately reflected by adjusting the length of the order and the number and type of conditions attached to it. It does not require a further term of imprisonment to be imposed.
92Finally, I note that in determining the length of imprisonment, the length of the community corrections order, and the conditions imposed on the community corrections order, I have also taken into account the principles of proportionality and totality.
Sentence
93Mr Aboueid, you will be sentenced on each charge as follows.
94On Charge 1 (theft) and Charge 3 (arson), you are convicted and sentenced to an aggregate term of imprisonment of 27 days.
95Additionally on Charges 1 and 3, and also on Charge 2 (use firearm in a public place) and Charge 4 (failing to comply with an order to provide assistance), you will be convicted and placed on a community corrections order for a period of 36 months – assuming that you consent to such an order.
96That order will contain a number of mandatory conditions which are as follows:
(i)you must not commit another offence for which you could be imprisoned during the time that the order is in force;
(ii)you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011;
(iii)you must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);
(iv)you must report to Coolaroo Community Corrections Centre before 4 pm within two clear working days of today;
(v)you must let Community Corrections know within two clear working days of you changing your address or job;
(vi)you must not leave Victoria without first getting permission to do so from the Secretary (or delegate);
(vii)you must obey all lawful instructions from and directions of the Secretary.
97The conditions that will apply in addition to the mandatory conditions are as follows:
(a) you must perform 240 hours of unpaid community work over a period of 36 months) as directed by the Regional Manager;
(b) you must be under the supervision of a Community Corrections officer for a period of 36 months;
(c) you must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the Regional Manager;
(d) you must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the Regional Manager;
(e) you must undergo assessment and treatment for mental health issues as directed by the Regional Manager;
(f) you must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager;
(g) you must not contact or associate with Mustafa Yuksel, Hakan Akbal or any outlaw motorcycle gangs, for a period of 36 months; and
(h) you must re-appear at court for a review of your compliance with the order as directed by the court. You must attend for your first review before me at 9.30 am on 14 December 2021 at the Melbourne County Court – although I note that that appearance is likely to occur via Webex or Zoom because at this stage I am supposed to be on circuit.
98Further, I direct that up to 40 hours of satisfactorily-completed treatment and rehabilitation may be credited as hours of unpaid community work, for the purposes of the unpaid community work condition.
99What that means Mr Aboueid, is that for each hour you do of treatment, so I am requiring you to do treatment in relation to drug issues, alcohol issues, mental health and programs, for each hour you do of treatment related to any of those areas, you do one less hour of community work. So the most community work you will need to do is 240 hours. The least you will need to do is 200 hours. So the more treatment you do, - - -
100OFFENDER: Yep.
101HER HONOUR: - - - the less community work you have to do. Does that make sense?
102OFFENDER: Yes it - yeah, yeah, yep.
103HER HONOUR: All right. Do you understand all of the conditions of the order?
104OFFENDER: Yes I do, Your Honour.
105HER HONOUR: Very well. I have to tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order by Corrections and the matter will be brought back before me. One of the potential outcomes if you breach the order, is that you may fall to be re-sentenced on all of the charges and you may face a further term of imprisonment. Do you understand that?
106OFFENDER: Yep, yep I understand that.
107HER HONOUR: Very well. Given all of those matters which I have told you and the conditions which apply, do you consent to undertaking that community corrections order?
108OFFENDER: Yes.
109HER HONOUR: Very well. Given that we are conducting this as a remote hearing, what will happen is that a copy of that order will be forwarded to Mr Aboueid and also obviously to counsel. But it will be noted on the order that the consent has been given orally and of course today's proceeding has been recorded, so there will be a recording of that oral agreement to the order as well if that comes up as an issue at any point.
Pre-Sentence Detention
110Pursuant to s18 of the Sentencing Act 1991 (Vic), I declare that the period of 27 days is to be reckoned as a period of imprisonment already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
s6AAA Declaration
111Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today, and been convicted of them, you would have been sentenced to a total term of imprisonment of 40 months with a non-parole period of 28 months. So your plea of guilty or your pleas of guilty in relation to this matter have resulted in a significant discount on the sentence you would have otherwise received.
112OFFENDER: Thank you very much, Your Honour.
Licence Suspension
113HER HONOUR: Having convicted you of Charge 1, theft of motor vehicle, I am required, pursuant to s89(4) of the Sentencing Act 1991 (Vic), to either suspend your licence, or cancel your licence and disqualify you from driving for a period of time.
114In determining how to deal with your licence in this case, I take into account that you do have a history of driving offences. However, I also take into account that your licence falls to be impacted on this occasion, in circumstances where there is no evidence to confirm who was driving the vehicle in question, nor is there any evidence of bad driving. Further, I am aware that if I was to impose a lengthy licence suspension upon you, it could (when lockdown ends) impinge upon your ability to easily access appointments for your order, and also would interfere with your employment ambitions, and therefore upon your rehabilitation.
115Accordingly, whilst the period of suspension I am going to impose is greater than that imposed on Mr Yuksel, to reflect the fact that you have committed prior driving-related offences and he has not, I am not going to suspend your licence for an extensive period of time.
116On Charge 1, your licence - - -
117OFFENDER: Thank you.
118HER HONOUR: - - - will be suspended for a period of 60 days commencing today – 10 September 2021. Now if you are the person driving that vehicle that you are in at the moment - have you got someone else with you?
119OFFENDER: No.
120HER HONOUR: You do not? All right. What I will do is I - - -
121OFFENDER: I'm the only - I'm the only - I'm the only one that drives it home, Your Honour.
122HER HONOUR: Very well.
123OFFENDER: No one else drives it, apart from my old man.
124HER HONOUR: That is all right. What I am going to do - what I will do is I will make that licence suspension start from midnight tonight, so that will give you the ability to be able to drive home, but from midnight tonight, you are suspended for a period of 60 days, all right?
125OFFENDER: Yep no worries, thank you.
126HER HONOUR: All right. It is really important that you understand that if you drive during that period of suspension, not only are you committing an offence, but it is an offence that is punishable by imprisonment. So not only will you potentially be charged for driving whilst suspended, it will also breach that community corrections order that I have just given you, which would mean that you would be brought back before the court and as I have already said to you, I would have to look at whether to resentence you in relation to the charges. So it is incredibly important that you come up with another way - - -
127OFFENDER: Yep.
128HER HONOUR: - - - of getting around over the next 60 days. Do you understand that?
129OFFENDER: Yep.
130HER HONOUR: All right.
Other Ancillary Orders
131Pursuant to s33(1) of the Confiscation Act 1997 (Vic), I order that the 11 items of property, listed at items 1-7 and 10-13 in the schedule to the draft forfeiture order provided by the prosecution, be forfeited to the Minister.
132I note that I announced during the plea hearing, after hearing submissions from both counsel, that I would not make a forfeiture order in respect of items 8 and 9 in the schedule, given the lack of sufficient evidence before the court to determine that those items of property are tainted items of property. Do counsel require me to give any greater reasons in the reasons for sentence than that?
133MR FARRINGTON: No, Your Honour.
134MS CHAMPION: No, Your Honour.
135HER HONOUR: No? All right. Are there any other matters that counsel that either of you wish to raise at this stage in respect of either the sentence or the reasons for sentence?
136MR FARRINGTON: No, Your Honour.
137MS CHAMPION: No, Your Honour.
138HER HONOUR: All right. So Mr Aboueid, what will happen is that you have already done the 27 days imprisonment, so that is done and dust. You do not have to worry about that. You now have to do - - -
139OFFENDER: Yep.
140HER HONOUR: - - - this community corrections order. As I said, a copy of it will be given to you. The most important thing is that you need to report to Coolaroo Community Corrections Centre by phone, by 4 pm on - what day is it today, Friday, so by 4 pm on Tuesday. When that order is sent through to you, it will have a phone number on there that you need to call. You need to make sure you do that, all right, or else otherwise - - -
141OFFENDER: Yep.
142HER HONOUR: - - - you will have tripped up on your order on the first very step, all right? So do you understand that?
143OFFENDER: Yes, yep. Yeah, yeah I understand that.
144HER HONOUR: All right. The other thing that I want to just point out to you is that you do need to come back to court, and as I say, it will probably be by video again, on 14 December and that will be for me to see how you are going on this order. So what will happen is Corrections will provide me with a report and that will tell me what has been happening, what you have been doing, what they have set you up with, how you have been going, whether you have been going to all your appointments, et cetera. And we will discuss any issues you are facing and also discuss any positive things that are happening for you as well. Do you understand that?
145OFFENDER: Yeah, yeah I do.
146HER HONOUR: Yes very well, so it is important that you keep that date in mind, but the most important thing as I say, is that you make that initial call to Corrections by 4 pm on Tuesday, all right?
147OFFENDER: Yes.
148HER HONOUR: Very well. All right, anything further from anyone?
149MR FARRINGTON: No, Your Honour.
150MS CHAMPION: No, Your Honour.
151HER HONOUR: Mr Farrington, are you going to give Mr Aboueid a call or do you need some time on the link?
152MR FARRINGTON: We'll have a conference call with him after this. Thank you, Your Honour.
153
HER HONOUR: Very well. Thank you, Mr Farrington. All right, thank you
Ms Ventura, if you could adjourn the court.
- - -
0
0
0