Director of Public Prosecutions v Al-Bab
[2022] VCC 976
•27 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01522
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALI AL-BAB |
---
JUDGE: | HIS HONOUR JUDGE MOGLIA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 April 2024, 12 June 2024 | |
DATE OF SENTENCE: | 27 June 2024 | |
CASE MAY BE CITED AS: | DPP v Al-Bab | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 976 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law – Plea of guilty – Sentence.
Catchwords: Aggravated burglary - Possess drugs of dependence - Prohibited person in possession of a firearm - Recklessly deal with proceeds of crime - Possess ammunition - Possess currency, jewellery and keys reasonably suspected to be proceeds of crime – Early plea of guilty – Covid-19 delay – Drug use – Relevant criminal history – Guarded prospects of rehabilitation.
Legislation Cited: Sentencing Act 1991 (Vic); Confiscation Act 1997; Firearms Act 1996.
Cases Cited:Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169; DPP v Duff & Marendaz [2023] VCC 246; DPP v Armstrong [2023] VCC 825; DPP v Austin [2024] VCC 183.
Sentence:Total effective sentence of 3 years and 9 months imprisonment with a non-parole period of 2 years and 6 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | V. Worrell | Office of Public Prosecutions |
For the Accused | M. Cookson | Emma Turnbull Lawyers |
HIS HONOUR:
1Ali Al-Bab, you have pleaded guilty to aggravated burglary, possessing drugs of dependence, being a prohibited person in possession of a firearm and recklessly dealing with proceeds of crime on dates between 9 and 28 September 2022.
2You have also pleaded guilty to summary offences, summary Charge 23 possessing ammunition on 28 September, Charge 31 possessing currency reasonably suspected to be proceeds of crime on the 26 September, and Charge 32 possessing jewellery and keys on the same day, reasonably suspected to be proceeds of crime.
Summary of offending
3The agreed basis for your guilty plea is set out in the prosecution opening dated 28 March 2024.
4In summary, at about 11:20 am on 9 September 2022 you drove to a residential property at Mansfield Street, Thornbury where you broke in by forcing the rear door with a screwdriver.
5While you were inside, the occupant, Mr Roth, saw you as he left his bathroom. You saw him and you were holding a screwdriver in your hand above your shoulder. He ran from you and secured himself in another room while you left the house and walked away. You got back into your car and drove home to Richmond.
6Mr Roth reported what happened to police, who, having investigated, came to your home in Richmond on 26 September with a search warrant. You were home when they did that, but you ran from the premises, climbing fences and running across nearby roofs to get away.
7While police were at your home they found Indian currency that had been stolen from a property in McLeod on 20 September 2022 (summary Charge 31). They also found 5 vials of a substance boldenone, 5 Xanax tablets, 6 vials of testosterone and a bag containing cocaine (Charge 2, possessing drugs of dependence). They seized these and a number of other items including the car that you drove to the aggravated burglary.
8Two days later, on 28 September 2022, police searched your vehicle and together with your wallet with ID documents, they found a handgun containing a magazine (Charge 3, being a prohibited person possessing a firearm), multiple rounds of mixed ammunition (summary Charge 23), basketball shoes and American currency stolen from a home in Thornbury on 8 September 2022 (Charge 4, recklessly dealing with proceeds of crime), and jewellery and car keys (summary Charge 32, dealing with property reasonably suspected to be proceeds of crime).
9All of that occurred while you were on a community correction order and also on bail, both of which makes your offending more grave.
10About a week later on 5 October 2022 you attended the Preston police station where you were arrested and interviewed.
11During your interview you lied about being at work on the day of the burglary and that other people used your vehicle at times. You said you fled your property when police attended with a search warrant to avoid getting into trouble for the illicit items you knew you had in your apartment. You admitted to being a prohibited person and purchasing the firearm and ammunition from an associate. You said you simply found the various items charged under the proceeds of crime provisions.
12The victim of the aggravated burglary provided a victim impact statement dated 3 April 2024 (Exhibit A). In it he spoke of his fear and anger about being confronted by you in his home. He reports that he relives that incident when he hears noises at night. He feels unsafe in his own home and fears for the safety of his family. He has had to instal a gate and security system in the hope of preventing something like this happening again.
Procedural history
13Following your arrest on 5 October 2022 you were remanded in custody where you have remained since.
14On 16 October 2023 you were sentenced to a total of 9 months imprisonment for other offences, that sentence concluding on 13 April 2024.
15Your time in custody has been somewhat affected by COVID related restrictions. You have been subjected to lockdowns but only for a number of days or a few weeks. I will give this hardship in custody some, although limited weight in sentencing, limited by the number of days and weeks that it related to.[1]
[1] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].
16Your case was listed for a contested committal hearing on 8 August 2023. On that day, however, you agreed to plead guilty to the charges now before this Court. The plea proceeded on 12 April 2024. You will get the benefit of an early plea, somewhat tempered by it only being offered at the committal stage of the preceding.
17Your plea, I accept, reflects your willingness to take responsibility for what you did, for facilitating the course of justice and it indicates some remorse.
18Coming as it did in the middle of 2023, when the Court’s backlog of trials was still of concern, your plea has added utilitarian value beyond the usual value, and both of these values will be reflected in a reduced sentence.
Personal circumstances
19During your plea hearing, your counsel tendered the following materials:
Exhibit 1 – prisoner education summary report;
Exhibit 2 – personal reference from Anthony Virgato;
Exhibit 3 – Narcotics Anonymous certificate of achievement showing that you had been part of Narcotics Anonymous for 52 weeks.
20You are now 27. You came to Australia when you are about four and soon after arriving here, your parents separated. Your father had engaged in violence at home and for you this ended when you were aged 12, when you fought back. You have only recently reconnected with your mother with whom you have had sporadic contact whilst you are in custody.
21You attended school until Year 11, when you left school to get work.
22During your late teens you started to use cocaine and cannabis. Your peers were antisocial and this formed the context in which you offended.
23Workwise, you have had jobs sporadically, for example, in retail, but your attendance and work was unreliable due to your drug use.
24You have a relevant criminal history and you have been gaoled before for burglary on a number of occasions. Your history commenced in the Children’s Court, but I have not had regard to that when arriving at the sentence in this case, rather, only your adult jurisdiction prior convictions.
25Your first case in the adult jurisdiction was of armed robbery and you were sentenced to two years and six months detention in a Youth Justice Centre in July 2017, aged 20. Since then, you were sentenced to six months in June 2019 for burglary, theft and assault related offences. Two years later in June 2021 you were imprisoned for nine months combined with a CCO for similar.
26
Prior to the offending in this case, you were released from prison on
5 November 2021. A month later on 9 December 2021 you were arrested again for further such offending and you served 90 days before being bailed on 8 March 2022. That 90 days was later declared as presentence detention in relation to the further nine-month sentence imposed on
16 October 23.
27You have maintained contact with family during your remand. You have also attended Narcotics Anonymous regularly but have not completed any drug courses. The courses you have done relate to your future work prospects, namely in construction, cleaning and education work.
28
Mr Virgato states that you have been an active participant and have
co-facilitated the NA groups with him in custody. He said you have an increased awareness of your triggers and a willingness to change your behaviour. I accept that you have attended the NA for an extended period and what Mr Virgato says. However, I also bear in mind that his is not an expert opinion and in reality the true value of your willingness to change is yet to be tested.
Sentencing issues
29The maximum penalty for Charge 1 of aggravated burglary is 25 years' imprisonment. For Charge 2, possessing drugs, it is 1 year. For Charge 3, being a prohibited person possessing a firearm, it is 10 years. For Charge 4, recklessly dealing with proceeds of crime, it is 10 years. For summary Charge 23, possessing ammunition, it is a fine. And for summary Charges 31 and 32, dealing with property suspected of being proceeds of crime, it is 2 years each.
30Aggravated burglary is a most serious offence. Every member of our community is entitled to a safe home and to feel safe when they are there. You, in this offending, utterly disregarded this basic right and it was based solely on your greed, whether it was greed for money or greed for money for drugs. The penalties imposed for such offending must be stern so as to deter others and, in this case, to deter you from repeating the kind of things for which you have a significant history.
31The gravity of what you did, I find, is moderately serious. In light of your history, you know that this kind of conduct results in gaol and yet you did it again. There is no suggestion of any valid reason for you to be in need of money that could possibly justify or explain stealing from others in this way. While I accept you did not go to the property intending to confront anyone, and that you only entered the home reckless as to someone being present, your offending was planned, you had a weapon in as much as the screwdriver was one, and you broke in. It was all in breach of court orders, namely a CCO and bail.
32In favour of leniency, I accept that the weapon you held was not a dangerous one, you did not attend in company, it was not in the middle of the night, your offending against the victim had no other criminal context and you left immediately after being confronted. Those things make your offending less serious.
33Your possession of the firearm and ammunition however is also serious offending. The handgun is a very dangerous weapon. I will not punish you for having it to hand or using it during the burglary, but that does not mean that this offence is by any means less serious or just benign. Weapons such as this are capable of inflicting serious injury, if not death. Possession of such a weapon by offenders such as yourself poses a real risk of serious harm to the community. I will sentence you in a way aimed at punishing you and deterring you from any further contact with ammunition and weapons of this kind.
34I have had regard to your prospects of rehabilitation and returning to the community to pursue a pro-social life. You are still relatively young, you have a demonstrated capacity for work, you have attended NA and by doing so demonstrated a degree of commitment to beating your old drug habits. Whether you are able to succeed in this is a real question. Your criminal history suggests that this has regularly been a struggle that is beyond your own resources to win.
35I intend to impose a sentence that provides you the degree of support and supervision proportional to that struggle. While I do not find that your prospects are without hope, I have given some weight to the need for community protection against your ongoing offending. On the whole, I find your prospects to be guarded to reasonable.
36In arriving at a total sentence, I have had regard to the charges in this case arising from a single incident and/or being related to a significant degree in the short period that your offending covered. I will however make orders for partial cumulation on the firearm and the proceeds of crime charges to reflect the separate criminality that they represent.
37Your counsel, Mr Cookson, submitted that in light of the time you have already served on other sentences since this offence, I should release you on a combined sentence. The prosecutor submitted that the only sentence is a parole type sentence.
38I have, in coming to the view I have come to, taken into account the nine months you have served on the sentence of the Magistrate of 16 October 2023, and the lost opportunity for concurrency with that sentence, and I have had regard to that when calculating the total sentence in this case.
39Mr Cookson referred me to some other cases, which he submitted provide some guidance when considering the length of sentence in your case. They included Austin,[2] Armstrong[3] and Duff.[4] I have considered these cases along with the similarities that they have with yours.
[2] DPP v Austin [2024] VCC 183
[3] DPP v Armstrong [2023] VCC 825
[4] DPP v Duff & Marendaz [2023] VCC 246
40In all the circumstances however, I have come to the view that only a parole-type sentence is appropriate in your case. You will have to demonstrate to the Parole Board that you are ready for safe release when the time comes.
41I sentence you as follows:
On Charge 1, aggravated burglary – 3 years
Charge 2, possessing drugs – 2 months
Charge 3, possessing a firearm – 15 months
Charge 4, recklessly dealing with proceeds – 8 months
Summary Charge 23 – convicted and discharged
Summary Charges 31 and 32 – 6 months (aggregate)
42Six months of the sentence on Charge 3, the firearm charge, two months of the sentence on Charge 4, that is the reckless dealing with proceeds charge, and one month of the aggregate sentence on summary Charges 31 and 32 are to be served cumulatively upon each other and upon sentence on Charge 1.
43Your total effective sentence is 3 years and 9 months.
44I fix a non-parole period of 2 years and 6 months.
45I declare that you have served 450 days of that 2 years and 6 months, and direct that this be reckoned as a period already served under the sentence.
46In accordance with s6AAA of the Sentencing Act 1991, but for your guilty plea I would have imposed 5 years and fixed a non-parole period of 3 years.
Ancillary orders
47I make the unopposed disposal order sought under s78 of the Confiscation Act 1997 in relation to drugs and other items seized during the search, but which were not the subject of a charge.
48I make the unopposed forfeiture order under s33 of the Confiscation Act 1997 in relation to the proceeds of crime seized.
49I make the unopposed forfeiture order under s151 of the Firearms Act 1996 in relation to the handgun, magazine and ammunition seized.
- - -
2
5
0