Director of Public Prosecutions v Afram

[2019] VCC 638

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-00058

DIRECTOR OF PUBLIC PROSECUTIONS

v

FADI AFRAM

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	7 May 2019
DATE OF SENTENCE:	10 May 2019
CASE MAY BE CITED AS:	DPP v Afram
MEDIUM NEUTRAL CITATION:	[2019] VCC 638

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr D. Sala (For Plea Ms H. Boyland (For Sentence)	Furstenberg Law

HIS HONOUR:  

1Fadi Afram, you have pleaded guilty to one charge of aggravated burglary, one charge of intentionally causing injury, one charge of armed robbery, one charge of possess a drug of dependence and one charge of receiving stolen goods.  Those crimes carry maximum penalties of 25 years, 10 years, 25 years, one year and 15 years respectively.

2You are still only 29 years of age.  You pleaded guilty to a settled indictment and I accept that you have now shown appropriate remorse.  You must also of course get the utilitarian benefit of that plea of guilty.  There has been a significant delay in the matter coming on for plea.  It is no one's fault and I take that into account, but the fact of the matter is you were on remand in any event, so it has not really had that much of an effect.

3I note also that during the course of your confinement since you were originally arrested you spent something in the order of three months in lockdown and that is something else that I take into account.

4You do have prior convictions and some of them are for guns and they are obviously of genuine concern.  Your counsel explained to me the circumstances of that and I have got no reason to doubt him.  If you continue or decide to mix in that sort of milieu again you will suffer sever consequence, I would have thought.

5But in any event the nature of the offending was that you and a Mr Pascuzzi and a Mr Kapitan, both of whom I have already sentenced, went to an address of a Mr Chaddoud in the middle of the night.  He had been telephoned by a lady that you were associating with.  He was a licensed second-hand dealer, I am told, who no longer deals from a shop.  There is a milieu here that I do not profess to really understand.  The fact of the matter is what follows you should not have done and have to receive an appropriate punishment for it.

6In any event at about 1 o'clock you received a text message from Alicia.  She was also known to you.  At around about 2.09 am Mr Chaddoud and a Ms Davis were watching TV when there was a knock at the door.  He had security cameras installed in his house and on the camera monitor he could see you and Mr Pascuzzi.  He went to answer the door and noticed Mr Kapitan in the background.

7Mr Chaddoud asked you and Pascuzzi what you wanted.  You said, 'Just open the fucking door'.  He replied, 'I'm not going to open the door'.  You pulled out a silver-handled object which he believed to be a gun, whether it is or not is another matter, it is still a weapon, and said, 'If you don't open the door I'm going to jump through the window and shoot you'.  He opened the door.

8The two of you entered the house.  Mr Kapitan then followed.  He was forced into a back room and hit on the back of the head with the silver-handled object and asked for money and keys to the car.  He fell to the ground and was punched and kicked by you while Kapitan and Pascuzzi watched.  His gold necklace was ripped from his neck and the woman Davis' Apple iPhone was demanded and taken from here.  Mr Chaddoud yelled out to Mr Ismail, who lived in a bungalow out the back, to get the police.  He did in fact ring the police and they then attended. 

9Mr Kapitan went into the master bedroom, took two shoulder bags which contained items including $1,000 in cash and four lady's diamond rings.  That gives rise overall to the charge of armed robbery.  The three of you left the house.  Mr Chaddoud was obviously injured to a certain extent and treated by paramedics and was taken to the Northern Hospital.  He had laceration and bruising to the back of his head and some pain and tenderness. 

10He then exchanged text messages with Alicia about what had happened.  He just said he wanted his stuff back.  The police had already been called by this stage, so it was too late for him to withdraw the matter.  But in any event on 22 March he received a phone call from you, and arrangements were made to meet. You apologised, gave him a hug, I am told, and returned a bag containing his wallet, passport, gold chain and Ms Davis' phone.

11The last of the charges was you essentially receiving a valuable, I must admit, bicycle from outside premises in La Trobe Street in Melbourne.  When you attended to give the goods back it would seem from what your counsel told me that that was how the complainant was realistically able to identify you for the purposes of a trial.  So in a bizarre way your trying to give the material back has led to you being charged and ultimately, appropriately of course, pleading guilty.

12I read the victim impact statement from Mr Ismail.  Home invasions are always serious and call for the application of general and specific deterrence as well as denunciation and appropriate punishment.  You have now been in custody for some 554 days.  It is simply a matter of working out the length of the sentence and the appropriate non-parole period.

13You have returned to a former partner who is supportive of you.  You have a work offer when you are ultimately released from prison.  You will have stable accommodation and is also tendered on your behalf was a report from a psychologist which says you have a post-traumatic stress disorder.  I take that into account.  You have used your time wisely in gaol, you have done programs and drug screens and appear to be doing quite well.  You had a very disadvantaged background in Baghdad as a child and the details are in his report.

14The first step in this process is the question of parity.  I sentenced Mr Pascuzzi and Mr Kapitan on 28 February 2018.  The sentence in respect of each of those was 29 months with an 18-month minimum.  Mr Pascuzzi was older, did not start to offend until he was 34, but by the time he came before me he had a very significant history.  Mr Kapitan was intellectually disabled to a certain extent, did have some criminal history and was on the face of it at least genuinely trying to rehabilitate.  I notice it was he, though, in this situation who took the cash and the diamond rings and, having seen Mr Kapitan in court, he would be a frightening prospect to come through your doorway.

15In all those circumstances there is not a great deal to distinguish between you all and I gave Mr Pascuzzi and Mr Kapitan the same sentence; however, I think in your situation, Mr Afram, realistically this was all brought about by you.  It was your job, at your instigation, and whilst you may have returned the goods afterwards, which is to your credit, and it may have got out of hand from what you originally anticipated, the three of you going in there, there must have been an intention to at least seriously frighten this man and I notice it is an intention to steal, aggravated burglary.

16It is your idea and I think you have to get more than the others but at the same time taking into account genuine attempts at rehabilitation.  If you get out with all those factors in your favour I think you are a real chance of not reoffending if you can stay away from drugs.

17In any event, taking all those matters into account, on Charge 1, 26 months; on Charge 2, six months; on Charge 3, 26 months; Charge 4, seven days concurrent; and Charge 5, one month concurrent.  I direct that two months of the sentence imposed on Charge 2 and six months of the sentence imposed on Charge 3 be served cumulatively upon each other and upon the sentence imposed on Charge 1.  That gives an effective head sentence of 34 months.

18I direct that you serve a minimum term of 21 months before becoming eligible for parole and I do that because of your what I think are genuine prospects of rehabilitation. I direct that 555 days be reckoned has having been served under this sentence. Pursuant to s.6AAA of the Sentencing Act I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of 51 months with a minimum term of 32 months.

19There is also a disposal order, which was agreed to the other day, as I understand, which I will now sign and hand down.  Thanks for that.

20Those figures add up to you, Ms Boyland?

21MS BOYLAND:  Yes, Your Honour.

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