Director of Public Prosecutions v Al-Jinavo
[2022] VCC 606
•5 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01624
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVE AL-JINAVO |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2022 | |
DATE OF SENTENCE: | 5 May 2022 | |
CASE MAY BE CITED AS: | DPP v Al-Jinavo | |
MEDIUM NEUTRAL CITATION: | 2022 VCC 606 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Crouch | Office of Public Prosecutions |
| For the Accused | Mr L. Barker | Theo Magazis & Associates |
HER HONOUR:
Circumstances of the Offending
1On 11 November 2020, at approximately nine in the morning, police executed search warrants at the home in Westmeadows at which you, Mr Al-Jinavo, were living. Your car was parked outside, on the front passenger seat there was a black Louis Vuitton satchel containing a loaded revolver. Six rounds of ammunition were in the cylinder of the revolver. It is the finding of that loaded gun that gives rise to the first charge of possess a firearm in contravention of a firearm prohibition order to which you have pleaded guilty.
2From the garage at the property, police seized various glass vials stored in a fridge. Six of them were examined and found to contain 36.4 grams of testosterone, and that gives rise to Charge 3, possess a drug of dependence, to which you have pleaded guilty. Also in the garage, police seized a small quantity, 0.3 gram of cannabis, which gives rise to Charge 2 of possession of a drug of dependence, to which you have also pleaded guilty. Finally, police located a box containing tamoxifen, which gives rise to a related summary offence, possession a Schedule 4 poison, to which you have also pleaded guilty.
3The maximum sentence for breach of a firearm prohibition order is 10 years' imprisonment. The maximum for possession of drugs, if you can satisfy the court that possession is for your own use, is 30 penalty units or 12 months' imprisonment. If the possession is for a purpose related to trafficking, 400 penalty units and five years' imprisonment. For the related summary offence of poison possession, it is a maximum fine of 10 penalty units.
4You were interviewed by the police after the finding of the firearm and the drugs. You made no admissions. Surveillance evidence showed you had driven the car to the property the night before the execution of the warrant, and it had remained there, untouched until it was searched. DNA and fingerprint evidence also connected you with use of the car.
5You initially indicated an intention to plead not guilty and were committed for trial to this court. In your defence response, you denied possession of and any knowledge of the presence of the gun in your car. Clearly, by your pleas of guilty, you disavow those denials.
6There is nothing mitigating about the circumstances of the possession of that firearm. Mr Barker submitted it was unsophisticated, that the gun was not concealed, and that there was no evidence it had been produced in public. None of those matter are, in my view, mitigatory. In fact, that there is no evidence the firearm was produced in public is irrelevant. The charge is one of possession of a firearm when you are prohibited from doing so because you were subject to a firearm prohibition order. That is, you are prohibited from possession. To have a loaded gun immediately accessible in a car is a flagrant breach of the order. It is that, not, whether other offences might have been committed, such as carrying it or brandishing it, which is the gravamen of the offence. There are good policy reasons why those with significant criminal histories and a long history of substance abuse should be prevented from owning firearms. Therefore, it follows that any sentence to be imposed for breach of the prohibition order must mark the disapprobation of such conduct and the need to deter you and others from engaging in like behaviour.
7It was following a sentence indication hearing that you admitted possession of the firearm, breach of the firearm prohibition order, and entered a guilty plea to that, and to the drug possession charges. The pleas of guilty, although not early, entitle you to a considerable reduction in the sentence that is otherwise appropriate. The weight to be given to your guilty pleas is increased significantly beyond what would have, pre-pandemic, been thought to be an appropriate sentence reduction for a post committal plea. However, the combined effect of a plea of guilty, the time you have spent in custody in COVID lockdown conditions, and the recognition of the contribution that a guilty plea makes to the reduction of the court's post lockdown trial backlog all combine to add significantly to the reduction in the sentence otherwise appropriate for a plea of guilty entered after committal for trial.
8You have, as the fact that you were subject to a firearm prohibition order indicates a significant criminal history. There are convictions and sentences for multiple firearms offences, offences of violence and threats to inflict violence, possession of, and trafficking in drugs, property damage, dishonesty, breaches of a whole range of court orders, and a breathtaking number of traffic offences. Your first appearances before an adult court were in 2004, when you were just old enough to be dealt with in an adult court, and your last at the age of 34 was earlier in 2020, eight months before your arrest and remand on these charges.
9Of particular concern for sentencing you today are your firearms offences. You have two previous convictions, in 2014 and 2019 for being a prohibited person in possession of a firearm and possession of ammunition. You have one for possession of a handgun, two for possession of prohibited weapons. And you have been subject to a firearm prohibition order since 2019.
10For these and the range of other offences for which you have been convicted, you have experienced the whole range of sentencing options available. That is, from non-conviction adjournments imposed when you were 17 or 18, and first before adult courts, through to terms of imprisonment requiring time actually served. You received community corrections orders and suspended sentences along the way. You breached all of them. You have wasted a considerable part of your adult life cycling in and out of the adult criminal justice system, and from 2008, cycling in and out of custody. Self-evidently, until now no sentence of imprisonment and no opportunity to rehabilitate in the community had been effective in deterring you from further offending.
11Even without having regard to your other criminal history, the firearms prior convictions make this firearm prohibition order charge serious, and indicate the significance of denunciation, deterrence, both general and specific, just punishment, and protection of the community as sentencing considerations which must loom large in the sentencing mix.
12What then are the matters relied on by Mr Barker to counter or explain that criminal history and to indicate a sentence more lenient than otherwise might be indicated by the circumstances of the offending and your prior history? Given the insight that your prior convictions provide into a long history of substance abuse, reflected in part by the multiple convictions for possession and use of drugs, and the number of sentencing orders which mandated engagement in drug rehabilitation programs, it is clear not only that substance abuse has blighted your adult years, but that it is inextricably linked with your offending history. It is also clear that, unless your substance abuse is addressed, the likelihood of you not committing further offences is extremely low.
13But refreshingly, yours is now a story of hope. You have much better prospects of remaining offence free from now on than that extensive and significant criminal history would suggest. And you have much better prospects of adhering to a court order requiring you to remain offence and substance free, and to engage in treatment and rehabilitation for substance abuse than that sorry criminal history would have suggested.
14Let me explain why I have come to that conclusion. You arrived in Australia as a four-year-old. You were a child who had known only war, in your birthplace, Iraq, and in the refugee camp, where your family stayed for 18 months before you arrived in Australia. You report a violent father, how much that was a product of his response to his time serving in the Iraqi army, or to other causes, I was not told, but I accept that his violence pervaded your childhood. In addition, you report being sexually abused at the age of 13 by a relative. Although you have been able to report to your lawyers and to those now treating you, you have not been able to take it any further in terms of seeking assistance or treatment for it or seeking legal address. Any one of those factors, war, disruption, life in a refugee camp, a violent father, and sexual abuse. alone would be likely to traumatise a child, let alone a combination. They certainly did traumatise you.
15You left school after Year 10.Immediately after leaving school, you demonstrated capacity to stick at a job, you completed a panel beating apprenticeship, then worked for a rigorous 12 months. Drugs and crime had already started to interfere with your life and thereafter they dominated your adult life. Until your recent release, you have had no meaningful or sustained employment since it would appear your late teens.
16By the age of 16 you were smoking cannabis, by 19 you turned to amphetamines, and soon after that you progressed to methamphetamine. For the 13 years since you first started using methamphetamine and until remanded for these offences, whenever you were not in custody you used daily.
17So, that means for the whole of the 13 years of your adult life when at liberty, you were a daily methamphetamine user.
18Given that bleak history of substance abuse layered against a background of childhood trauma, one would have expected remand in custody following arrest until trial or plea. But in fact, you have had a remarkable turnaround. It would appear for the first time in your life you have actively engaged and consistently engaged with substance abuse rehabilitation, and you have demonstrated a capacity to commit and to persist even when faced with setbacks. We see in the courts and our sentencing work, for some people, and you seem to be one of them, there comes a time, often in the mid-30s when someone decides they have just had enough of a life of substance abuse, crime, and imprisonment, and not only do they want to give up and start a new life, they find the strength and commitment to do so. You have demonstrated since shortly after your remand in November 2020 that you have the strength and capacity to live a drug and offence free life. Given the entrenched nature of your substance abuse and your criminal behaviour layered over those traumatic childhood experiences, you have indeed demonstrated powerfully a commitment to change and a capacity to sustain it.
19You spent three months on remand before being assessed as being suitable for residential rehabilitation, and granted by the Supreme Court to allow you to participate in The Cottage program in the Goulburn Valley. You spent four months in that program before being expelled and returned to custody. You were expelled because drugs were found in your room. You denied they were yours or that you had any knowledge of the drugs, but it was a condition of engagement with the program that you not have drugs or access to drugs. You were expelled, charged with possession, and consented to the revocation of your bail. You maintained that you had nothing to do with the drugs that were found in your room. Ultimately those charges were withdrawn. You maintained your desire to return to The Cottage to undergo and complete the residential rehabilitation program, and once the charges were withdrawn, you were again assessed as being suitable. Again, you were granted bail in the Supreme Court to return to The Cottage in November 2021 and remained there, successfully completing or almost getting to the very end of that program by February 2022, when you were exited. Shortly before your release, you made an attempt on your life. From the medical reports that have been provided, it is unclear whether that was an impulsive act or a thought through one, and whether you intended to carry it through or were looking to do something short of that. In any event, it reflected an anxiety about leaving the program and returning to the community. Nonetheless, you were successfully exited from the program and you have remained in the community, safe, without posing risk of harm to yourself, and without posing risk of harm to others since then.
20
I have read and been very impressed by the contents of the reports from
Ms Hutchinson of The Cottage program, and of Professor Ogden. Residential rehabilitation for substance abuse, particularly for somebody whose habit is as entrenched as yours is no easy option, and somebody who undertakes it not once, but twice, successfully completes, and is prepared to go back after having been expelled, demonstrates not only a commitment, but a capacity to sustain and to genuinely mean it. Ms Hutchison, left The Cottage before you completed your time, but you have continued to attend weekly one on one counselling with her since your departure. S So she can give a comprehensive overview of your progress. Professor Ogden is the addiction specialist with Goulburn Valley Health, and so was responsible for overseeing you, your treatment whilst you were at the Cottage, and you had maintained your contact with him through attendance at his addiction clinic at St Vincent's since you were successfully exited from the program in February of this year.
21You have spent 340 days that strictly counts as pre-sentence detention, and another 14 days where you were remanded in respect of the drug charges that were later withdrawn and which led to your expulsion from The Cottage on the first occasion. That is a total of 354 days of pre-sentence detention. And you have all of that time in residential rehabilitation, from March to June, and then again from November through to Februaryto be acknowledged
22Since your successful exit from The Cottage on the second occasion, you have participated actively in your outpatient rehabilitation with Professor Ogden, and attended weekly counselling sessions with Ms Hutchinson. You have stable accommodation and a job. You have been accepted into your brother's home. That is not only stable, it is prosocial accommodation. You have engaged in full time employment; your brother has employed you in his plumbing business, and in fact you have embarked upon a plumbing pre apprenticeship.
23You are fortunate to have family support. Many people who come before the court do not have the privilege of that, and you do. And it seems, from what I have been told, that you are rewarding that support by returning the trust that has been placed in you by remaining substance free by continuing to engage with your rehabilitation, by engaging in gainful employment that gives you something to do during the day, as well as money, and by avoiding your old associates and your old lifestyle. It, in a sense, sounds a little thing but it counts a lot when you can report proudly to your lawyers that you saw somebody who is associated with your old offending and drug life, and you turned your back on them. It is an anecdote, but a strong example of the commitment to change. And also a strong indicator to your family who have placed their trust in you, that you are someone to be trusted, and they can continue to have you in their home.
24It was this remarkable commitment to change demonstrated over the length of time that underpinned Mr Barker's submissions that the sentence to be imposed on you should be structured to allow you to continue your rehabilitation in the community, and not to impose what might otherwise have been thought to be the only appropriate sentence for the charge of prohibited person in possession of a firearm, a head sentence followed by a non-parole period. Conceding that a sentence of imprisonment was clearly warranted for the main charge, Mr Barker submitted that in these circumstances, time served, coupled with a community correction order, was sufficient and more just than a head sentence with a non-parole period. Even if, by reason of the powerful rehabilitative matters that were relied on, the reduction in sentence required by reason of your plea of guilty, and the added effect of these COVID times, a non-parole period were set at around about the amount of time served, the additional 14 days, and the time you have spent in residential rehabilitation, the effect of that would be to have you return to prison for the parole board to decide your date of release. There is a significant risk, I accept, on Mr Barker's submissions and on Professor Ogden's report, that that could have a serious setback impact on your rehabilitation, were that to happen.
25So, I accept the submissions that to return you to custody now would risk that sustained commitment to change, and that a sentence could be structured having regard to the amount of time that you have already served and spent in residential rehabilitation that properly reflects the gravity of the offending, the evidence of rehabilitation, that properly reflects the need for deterrence, both general and specific, that notes and encourages the continued rehabilitation, but still gives proper weight to denunciation and to protection of the community.
26Of course, to say to return you to custody now would risk undoing the rehabilitation that you have undertaken already is not the sole or the decisive determinant of the appropriate sentence. Sometimes the circumstances of an offence are such that notwithstanding the efforts at rehabilitation, a longer term of imprisonment, or leaving the decision as to whether to be released on parole to the parole board rather than the court determining that a combination of time served and supervision on release are sufficient is appropriate.
27But the other factors that I have already referred to that must be taken into account in reducing the sentence otherwise appropriate by reason of your guilty plea weight significantly here.
28So, I accept the submission that the time spent in residential rehabilitation should be taken into account in a general way as counting as time you were not at liberty and restricted by your bail conditions from leaving The Cottage.
29I also accept that in the circumstances surrounding the 14 days that I have referred to that you spent in custody in respect to the charges that were later withdrawn, consistently with Renzella, should be taken into account .
30The pandemic and its effect on the hardship of imprisonment and the need to provide additional encouragement and reward for guilty pleas now also means that pre-pandemic sentencing ranges now have to be viewed with caution. This combination of circumstances that I have outlined justifies what I said to Mr Barker at the start of the sentencing indication hearing, would otherwise have been a big ask, that is to impose a sentence that did not require any further time in prison than the time served, followed by a community correction order.
31You have been assessed and found to be suitable for a community correction order.
32What I propose to do is to impose a sentence in respect of Charge 1, that is a combination of the time that you have already served in custody, followed by a community correction order with conditions relating to unpaid community work, engagement in continued rehabilitation and supervision. On the charge of possession of cannabis, I propose to deal with that by way of conviction and discharge. Given the quantity and your history of substance abuse that pales into insignificance, compared to the other matters. However, I consider the possession of the testosterone and the tamoxifen to be different from possession of the cannabis, and I propose to impose fines in respect of each of those.
33So, that is the sentencing structure. I will now proceed in a moment to formally sentence you.
34So far as the community correction order is concerned, Mr Al-Jinavo, you must of course consent to it.
35The order will be one for two years. In addition to the mandatory terms, it will have 200 hours of unpaid community work, with a direction that all hours spent in rehabilitation for drug or alcohol abuse are to be counted as hours of unpaid community work, supervision, and that you engage in drug and alcohol treatment and rehabilitation as directed. Are you prepared to consent to an order in those terms in respect of Charge 1?
36ACCUSED: Yes, Your Honour, I do.
37HER HONOUR: All right, thank you. I will then formally proceed to sentence. Steve Al-Jinavo, on the three charges on the indictment to which you have pleaded guilty, and the additional related summary offence, you are convicted.
38On Charge 1 of breach of a firearm prohibition order, you are sentenced to be imprisoned for a period of 340 days and then to be released upon a community correction order for a period of two years. I declare that you have spent 342 days in pre-sentence detention and direct that that be counted and reckoned as the sentence already served. I will detail the terms of the community correction order shortly.
39On Charge 2, possession of cannabis, you are convicted and discharged.
40On Charge 3 of possession of testosterone, you are convicted and fined $1,000.
41And on Charge 3, possession of a poison, tamoxifen you are convicted and fined $500.
42The conditions of the community corrections order, that is part of the combination sentence for Charge 1 are these: The order will last for two years, commencing today, 5 May 2022, and ending on 4 May 2024. There are mandatory terms that apply to all community correction orders. They are, first, that you must not commit another offence for which you could be imprisoned during the time that the order is in force. Now, given your extensive history and involvement with the criminal justice system, you will be well aware that almost any offence these days carries with it a potential term of imprisonment, including a number of driving and traffic offences.
43You must comply with any obligation or requirement prescribed by regulation 17 of the sentencing regulations. That means you must not be impaired by substances when you attend for any supervision appointments, other appointments, or engagement in treatment and rehabilitation programs or unpaid community work as a condition of this order. You must submit to drug or alcohol testing if directed.
44You must report to and receive visits from the Secretary or delegate. You must report to the Coolaroo Community Correctional Services Centre at Shop 5/1640 Pascoe Vale Road, Coolaroo, within two clear working days after the commencement of this order. Today is Thursday; that means by Monday of next week.
45You must let a community corrections officer know within two clear working days if you change your address or your job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate, and you must obey all lawful instructions from and directions of the Secretary or delegate.
46In addition to the mandatory terms, I impose these terms. You must perform 200 hours of unpaid community work over a period of two years as directed by the regional manager. I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of this unpaid community work condition.
47If you fail to comply with this condition, the Secretary to the Department of Justice or their delegate may give you a direction to perform additional hours of unpaid community work in accordance with s83AU of the Sentencing Act.
48You must be under the supervision of a community corrections officer for a period of two years. You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager, and you must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager.
49Now, do you understand the effect and conditions of this order, Mr Al-Jinavo?
50OFFENDER: Yes, I do, Your Honour, yes.
51HER HONOUR: And do you consent to it being made?
52OFFENDER: Absolutely, yes.
53HER HONOUR: All right. I am now signing that. Your verbal indication of your understanding and consent are on the court record. When you attend at Corrections, you may well be asked to sign a copy of this order, but I want you to understand it is binding on you from now on. You have legally effectively and enforceably indicated your understanding of its terms and your consent. A copy, that will be sent through to Mr Barker and to your lawyers once we have finished here.
54Now, I also make the disposal and forfeiture orders that have been requested. And I declare, pursuant to s6AAA of the Sentencing Act, that but for your pleas of guilty, I would have imposed a sentence involving a term of imprisonment of four years with a non-parole period of two and fined you a total amount of $3,000. Are there any further orders that are required to be made?
55MR BARKER: No, Your Honour, not from my perspective.
56MS STEVIC: No, Your Honour.
57HER HONOUR: And is the way I have pronounced the orders correct?
58MR BARKER: As I am aware, Your Honour, yes, absolutely.
59MS STEVIC: Yes, Your Honour.
60HER HONOUR: All right, thank you. Mr Al-Jinavo, I want to keep on telling people that you are one of the success stories to encourage people who are still struggling with addiction to see that even after 13 years it can be done. That means I do not want to hear from you unless you send a letter to Mr Barker or to the court proudly reporting on your progress. So, in other words, I do not want you
61OFFENDER: Thank you so much.
62HER HONOUR: - - - to have to come before me for breach of the order.
63OFFENDER: Absolutely.
64HER HONOUR: However, I understand that the road to rehabilitation is a long and difficult one, and it is not always a straight foward progression, there are times when you will struggle. I want you to bear in mind that you have been given great opportunities by your family, through drug rehabilitation, by the courts in giving you bail to do it, and by this court now in releasing you on a CCO. So, your compact in that is to do your best to honour that trust. If you struggle, you know now that it is not all over, that you can pick yourself up and retrieve your position and start again. So, if you are struggling with your CCO or if you are struggling with you rehab, tell Corrections, engage them in assisting you. And if you need to come before me to vary the order or to seek to have the order varied, do so. But act, do not wait for things to go bad and to get into trouble and then have it come back before me.
65And if you do struggle and you lapse, and you find yourself using or committing an offence again, remember you can pick yourself up and go froward again, and that if you have to come back before me for breach, but you have shown since the breach again you have worked to pick yourself up and go forward, you know that it will go much better for you. So, I know the day in court is a big and powerful one, but I want you to remember today every day for the next two years, and remember that you have made a real promise, and that there is a lot of hope invested in you and everyone wants you to reward that hope.
66OFFENDER: Thank you so much. Thank you. It means a lot to me, that talking.
67
HER HONOUR: Right, well let us look forward to a continued progress,
Mr Al-Jinavo. It really is extraordinary what you have done.
68OFFENDER: A hundred per cent.
69He is immensely grateful, Your Honour, thank you.
70HER HONOUR: Well, thank you, Mr Barker, and thank you, Ms Stevic.
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