Director of Public Prosecutions v Ali

[2022] VCC 1884

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

CR-20-01564
CR-20-00337

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMAD ALI

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JUDGE:	HIS HONOUR JUDGE D. SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2022
DATE OF SENTENCE:	28 October 2022
CASE MAY BE CITED AS:	DPP v Ali
MEDIUM NEUTRAL CITATION:	[2022] VCC 1884

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Burglary; Theft; Attempted Burglary; Arson

Legislation Cited:                Sentencing Act 1991

Cases Cited:Philips v R [2012] 222 A Crim R 149; Worboyes v The Queen [2021] VSCA 169; R v Verdins & Ors (2007) 16 VR 269

Sentence:  16 months’ imprisonment with a non-parole period of 10 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Goetz	Solicitor for the Office of Public Prosecutions
For the Accused	Mr L. Barker	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

1

Mohamad Ali, you have pleaded guilty to an indictment containing 10 charges of burglary, which carries a maximum penalty of 10 years’ imprisonment;

seven charges of theft, which carries a maximum penalty of 10 years’ imprisonment; six charges of attempted burglary, which carries a maximum penalty of five years’ imprisonment; and one charge of arson, which carries a maximum penalty of 15 years’ imprisonment.  You have also pleaded guilty to another indictment (“the second indictment”) containing one charge of theft which carries a maximum penalty 10 years’ imprisonment. 

2You have also admitted your criminal history.

Circumstances of the Offending

3The circumstances of your offending were set out in the summary of prosecution opening dated 2 June 2022, Exhibit 1 at your plea hearing.  Your offending can be relatively briefly summarised. 

4Over a period of some five months between January and June of 2019, you and your co‑offender, Shaddy Mallouk, along with other individuals, committed multiple commercial burglaries across the west of Melbourne, the focus of the burglaries being cigarettes.  Your offending commenced on 17 January 2019, when you were involved in the burglary and theft at the Lucky 7 Milk Bar at Wembley Avenue in Yarraville.  Early that day, the owner of the milk bar and his wife were awoken by banging and they called police who arrived soon afterwards to discover that the shop had been broken into and approximately 2,500 packets of cigarettes worth approximately $60,000 had been stolen, and the front door had been damaged.  You and another person entered the milk bar and committed the burglary and theft, with your co‑offender, Mr Mallouk, although not himself entering the property, acting together with you to commit this crime.  Subsequent police investigations revealed CCTV footage showing two men in disguise breaking into the store and stealing items, with your mobile phone being linked to the area along with Mr Mallouk.  Your conduct in relation to the Lucky 7 Milk Bar forms the basis of Charges 1 and 2 on the indictment, burglary and theft.

5Three days later you and Mr Mallouk were involved in an attempted burglary at a milk bar located at Somers Parade, Altona, Charge 3 on the indictment.  On that day the owner of the milk bar reported damage to the front door of his premises from jemmy marks to police, who subsequently analysed CCTV footage showing yourself and Mr Mallouk wearing distinctive Guy Fawkes (“Anonymous”) masks, these distinctive disguises regularly featuring in your subsequent offending.  Subsequent phone record analysis further implicated you in the crime.

6Three days later on 23 January 2019, a burglary and theft took place at a milk bar located at Alma Road, Altona Meadows.  Again, on that day a worker attended the milk bar and observed damage to the store and cigarettes having been stolen.  Subsequent police involvement and investigations revealed CCTV footage showing three offenders, including yourself and Mr Mallouk, again wearing Guy Fawkes masks.  Again, phone record analysis further implicated you in relation to this crime.  Your offending on this occasion forms the basis of Charges 4 and 5 on the indictment, burglary and theft. 

7Approximately one week later on 1 February 2019, a burglary took place at a milk bar located at Burleigh Avenue, Melton, Charge 6 on the indictment, burglary.  Again, you were implicated in relation to this crime along with Mr Mallouk through CCTV footage revealing yourself and Mr Mallouk wearing the Guy Fawkes masks, together with subsequent phone record analysis. 

8The following day, 2 February 2019, a burglary and theft took place at Melton Gifts at Smith Street in Melton.  On that day, a worker from the store attended and observed that it had been burgled and severely damaged by fire, which is alleged to have been deliberately lit by an unknown co‑offender.  Whilst you were present at that time, it is not alleged by the prosecution that you had any involvement in this fire, which caused damage in excess of $250,000.  Cigarettes worth $10,000 were stolen from this premises.  A number of jemmy bars were also located by police outside the premises.  You were implicated in this incident through police analysis of CCTV footage showing four offenders wearing Guy Fawkes masks, two of whom were yourself and Mr Mallouk, together with phone record analysis.  Furthermore, you were linked to this crime through DNA analysis of a glove and other items which were subsequently located in the vicinity.  You're offending with regards to the burglary and theft on Melton Gifts forms the basis of Charges 7 and 8 on the indictment, burglary and theft.

9Nine days later on 11 February 2019, a burglary and arson took place at Smoke Mart at Wallace Square in Melton.  On that day, a tenant at the property observed that it had been burgled and that there had been a fire which subsequently damaged the property.  Phone call records placed both you and Mr Mallouk in the Melton area in the very early hours of this day and revealed a conversation between the two of you.  It is not alleged by the prosecution that you were directly responsible for lighting the fire or bringing the materials to do so.  Indeed, the prosecution alleges that an unknown co-accused lit the fire, but you were complicit in this arson having been put on notice of the event by virtue of you being present when the previous arson was committed by an unknown co-offender of Melton Gifts 11 days earlier.  The property was significantly damaged by the fire, with significant cost involved.  Your offending in relation to the Smoke Mart on 11 February 2019 forms the basis of Charges 9 and 10 on the indictment, burglary and arson.

10You returned to the scene of the crime captured by Charge 1 on the indictment, at the Lucky 7 Milk Bar in Yarraville on 15 February 2019 where you were involved in an attempted burglary on the same premises, Charge 11 on the indictment.  On the morning of this day, a worker attended the milk bar and noticed jemmy marks to the doors and surrounds.  Subsequent police analysis of CCTV footage revealed two males in the early hours of that day attempting to break into the store on multiple occasions, and phone record analysis again implicated both you and Mr Mallouk in the commission of this offence given your proximity to the premises at the relevant times.

11Just over a month later on 19 March 2019, you were involved in a burglary on the Yim Yam Restaurant in Ballarat Street, Yarraville, Charge 12 on the indictment.  On that day, individuals woke at about 5:30am hearing glass smash and saw a male walking in front of the shop whilst talking on the phone.  The individual asked the male if he had been smashing glass, the male, described as being of
Middle Eastern appearance aged approximately 18 to 20 years speaking with a Lebanese accent, said, “Nah bro, can you just go home.”  At this point another male carrying a crowbar and dressed in all black, including a balaclava, approached from behind and told the individual who had heard the smashing glass to “Fuck off” before walking away.  This altercation was observed by other individuals.  Subsequent police investigations revealed that the restaurant had in fact been broken into and that there was broken glass in the front.  Phone record analysis by police also revealed that both you and Mr Mallouk were noted as being in the vicinity of the Yim Yam Restaurant at the relevant time.  Your involvement in this offence forms the basis of Charge 12 on the indictment, burglary.

12On 2 May 2019, an attempted burglary took place at Food works at Bladin Street, Laverton.  CCTV footage in relation to this incident showed break in attempts occurring at just after 4:00 am on that morning, with phone record analysis again implicating both you and Mr Mallouk, given your proximity at the relevant time.  Your involvement in this offence forms the basis of Charge 13 on the indictment, attempted burglary. 

13On 21 May 2019, a burglary and theft occurred at the Metro Service Station located at Ferguson Street in Williamstown.  CCTV footage provided to police showed items and cigarettes being stolen from the service station, with you inside at around 4:02 am.  Subsequent phone record analysis again showed both you and Mr Mallouk to be in the vicinity of the service station at the relevant time, at one point being involved in a lengthy conversation with Mr Mallouk.  Your involvement in these offending forms the basis of Charges 14 and 15 on the indictment, burglary and theft. 

14On 28 May 2019, an attempted burglary took place at the Food works at Harrington Square in Altona Meadows, Charge 16 on the indictment.  On that day a worker attended for work in the morning and saw damage to the store through an attempted break in.  Subsequent police analysis of CCTV footage showed two men in disguise and multiple attempts to break into the shop between 4:42 and 4:50 am. 

15Later that same day, a burglary and theft again took place at the
Metro Service Station in Ferguson Street, Williamstown, which had been burgled by you a week earlier.  CCTV footage provided to police showed both you and Mr Mallouk involved in this offence.  You had attempted to steal cigarettes, but the store had not restocked those items since the previous burglary.  Confectionery was stolen.  Again, both you and Mr Mallouk were implicated further through subsequent phone record analysis.  Your involvement in these offending forms the basis of Charges 17 and 18 on the indictment, burglary and theft. 

16On 31 May 2019, a burglary and theft took place at a supermarket at
Purnell Road in Corio, Charges 19 and 20 on the indictment.  CCTV footage provided to police showed two men entering the supermarket in the early hours of this day after breaking in, and various perishable items being stolen.  On this occasion, a jemmy bar identical to the one captured on CCTV from the earlier burglary on 28 May 2019 at the Metro Service Station in Williamstown was left behind by Mr Mallouk.  Again, phone record analysis implicated both you and Mr Mallouk in the commission of this offence.

17Police surveillance on yourself and Mr Mallouk was conducted on 4 June 2019, with police making various observations.  You and Mr Mallouk were seen returning to a vehicle in the vicinity of Vernon Street, South Kingsville and driving off quickly, with subsequent CCTV footage showing you and Mr Mallouk walking on the street outside Vernon Street in South Kingsville, the location of Triple J Cellars which was the subject of an attempted burglary that day.  Your involvement in this offence forms the basis of Charge 21 on the indictment, attempted burglary.

18A nearby business, Tandoori Flames, located at Vernon Street, was also the subject of an attempted burglary that day, with both you and Mr Mallouk being observed by police at about 2:49 am attempting to break into this restaurant.  Your involvement in this offence forms the basis of Charge 22 on the indictment, attempted burglary. 

19Soon after on 4 June 2019, a burglary and theft took place at the Food works located at Charles Street in Seddon, Charges 23 and 24 on the indictment.  Police had observed a vehicle connected to both you and Mr Mallouk parked in the vicinity, and police observed one of you on your mobile phone at the entrance to the Food works attempting to force the front door between 3:21 and 3:24 am on this day.  Police observed the two of you putting items in the boot of the car at
3:30 am.  Later in the day, the owner of the Food works observed that there had been a break in and that a large number of cigarettes had been stolen from the Food works.  Subsequent analysis of CCTV footage by police revealed that you and Mr Mallouk were in the store taking items using a trolley.  Again, subsequent phone record analysis implicated both you and Mr Mallouk in the commission of these offences, Charges 23 and 24 on the indictment. 

20Police approached both you and Mr Mallouk in Greig Street, Seddon, pushing a trolley with a large number of items in it.  When police attempted to arrest you, you both ran away.  You were subsequently arrested by a member of police wearing a mask.  Inside the boot of the car connected to the two of you was a large black bed sheet with a large amount of cash and cigarettes, together with various other implements.

21When interviewed by police later that day on 4 June 2019, whilst admitting your involvement in some of the offences, you denied other aspects and variously referred to your owing money to Mr Mallouk and being taught how to wear the items used in the offending by Mr Mallouk. 

22Following your police interview you were bailed.  Notwithstanding that grant of bail and the fact that you must surely have known of the gravity of the allegations against you, on 29 September 2019, some three and a half months later, you committed the offending related to the second indictment.  On that date you went to the Punt Hill Apartments in Cohen Place, Melbourne, and went to the basement carpark and entered a 2014 Volkswagen Golf via an unlocked front door where you stole Apple iPods and a remote control for the garage access, your conduct in this regard forming the basis of Charge 1 on that indictment, theft.  You were subsequently identified from CCTV by police.

23The procedural chronology following the offending captured by the second indictment and the first indictment is not straightforward.  Indeed, the theft charge captured by the second indictment relates to an incident just over three years ago.  Whilst within that three-year period there are periods within which you have been on bail, you have also been in custody with regards to breaching your bail conditions and committing further offences, by way of example between
23 October 2019 and 7 May 2020, which ultimately resulted in a sentence of three months’ imprisonment with 84 days pre‑sentence detention being declared, together with a 12-month Community Correction Order with various conditions being imposed at the Melbourne Magistrates’ Court on 10 May 2022.  That sentence involved offending which included aggravated burglary.  Significantly, you failed to appear before me at your plea hearing for this matter on 1 July 2022, and you have been in custody following the execution of a warrant for failing to appear since mid-August.  By agreement, the pre‑sentence detention attributable to this matter is 273 days up to but not including today.

24The prosecution at your plea hearing advised that no Victim Impact Statements had been obtained in this matter.   However, it can be readily assumed that your offending, which was targeted on essentially small businesses with low level security, where those involved invariably worked long hours for limited income, it can be assumed that you're offending on those “soft targets” has significantly adversely impacted these businesses.

Nature and Seriousness of the Offending

25When I sentenced your co‑offender, Shaddy Mallouk on 15 February 2022 for essentially the same offences, I made various findings with regards to the nature and seriousness of the offending, which I will now reiterate in your case.  Clearly, these were not isolated or random offences.  In company with others, including Mr Mallouk, you were involved in multiple commercial burglaries targeting cigarettes.  As I have stated, your victims in many respects were soft targets.  You and those with you struck in the middle of the night invariably, when the opportunity for success was no doubt at its highest.  Implements were used to facilitate entry to the buildings and the commission of the thefts.  Your bounty on occasions was significant, best illustrated through the theft of cigarettes to the value of approximately $60,000 on the first occasion, on 17 January 2019.  Your offending was brazened, determined and audacious – sometimes returning to the scene of an earlier crime to reoffend shortly afterwards.  Disguises were used to inhibit identification, highlighting the degree to which your offending was calculated. 

26The arson offence committed on 11 February 2019 at the Smoke Mart in Melton, Charge 10 on the indictment, in particular represents a serious and concerning example of criminality on your part.  Whilst I accept that you were not directly responsible for lighting the fire or bringing the materials to do so, you were complicit in this offence due to your presence and knowledge of the previous fire at Melton Gifts a week earlier.  The gravity of this crime is reflected in the statutory maximum penalty of 15 years’ imprisonment.  In combination with the burglary on the Smokemart on the same day, I regard this particular incident as representing the most serious of your offending incidents. 

27In my view, your offending must be seen as at least a mid-level example of these particular offences.  Notwithstanding my earlier comments, I agree that your offending cannot be described as particularly sophisticated.  There is no evidence in this case of any intricate planning, no evidence of any broader syndicate at work, and no particular accoutrements of wealth.  Whilst you and Mr Mallouk were invariably disguised, the distinctive nature of those disguises, providing easy linkages to your involvement in multiple burglaries, reflects in my view a degree of immaturity. 

28On any analysis, your offending must be seen as serious, and representing concerning examples of the offences to which you have pleaded guilty.

Offender’s Level of Responsibility and Moral Culpability

29As I indicated when I sentenced Mr Mallouk, globally it is difficult to delineate the roles or level of involvement in the offending as between yourself and Mr Mallouk.  Ultimately, I sentenced Mr Mallouk on the basis that he was integrally involved in the commission of these offences and played an important role in the facilitation of these crimes.  Whilst your counsel specifically did not rely upon any evidentiary material with regards to any mental impairment or cognitive deficits to submit that your level of culpability was reduced for your offending, it was submitted on your behalf that you were a willing and subservient co‑offender subject to Mr Mallouk’s direction and control.  In written submissions with regards to sentence, the prosecution conceded that Mr Mallouk had a higher role in the offending, with you being a “willing contributor”.  In oral submissions, Mr Goetz who appeared on behalf of the prosecution on 7 September 2022 referred to a Crown acceptance that you were not the architect of the offending, but it was submitted that globally it is impossible to distinguish between the participation of you and Mr Mallouk.

30In my view, there is an absence of any evidentiary basis upon which I could make a positive finding with regards to reduced culpability on your part.  However, in the circumstances, and in particular given the prosecution concessions, I am satisfied that you were no more involved that Mr Mallouk, and probably somewhat less culpable than Mr Mallouk, who I note has a more extensive criminal history than you.

31Dealing specifically with the offending captured by the second indictment, whilst that offending is aggravated by virtue of the fact that you had been interviewed with regards to the first indictment and were on bail at the time, I accept that the thefts referrable to the second indictment represents a relatively low level example of this crime, and is a matter which ordinarily would have been dealt with within the summary jurisdiction, and for these reasons is distinguishable from the offending captured in the first indictment.

Personal Circumstances

32You are now 26 years of age.  You were just 22 and 23 years of age at the time of the offending and were therefore relatively youthful at the time of your offending behaviour. 

33You were born in Victoria, though you are of Lebanese heritage.  Your mother apparently owned and operated a successful fish and chip shop in the Geelong region.  Sadly, she was diagnosed with cancer during the pregnancy and died two months following your birth. 

34When you were just 14 days old, you were sent by your father to live with a maternal aunt.  In the intervening days between your mother’s death and this time, your father had re-partnered it seems with another woman, and your counsel indicated that it was apparently inconvenient for your father and stepmother to have a baby around.  Understandably, perhaps, you have always been resentful of your stepmother, and I understand that this has continued to be a mutually conflictive relationship.

35You remained with your aunt for about three months before your father took you to Lebanon to be raised by your paternal grandparents.  Whilst you had intermittent visits from your father during your childhood in Lebanon, he was apparently an abusive and very violent man.  Life for you was apparently harsh in Lebanon, which remained rife with conflict.  You received some primary schooling but experienced learning difficulties across the curriculum.  Your formal education ceased when you were only seven years of age following the death of your grandfather and the need for you to assist in the care of your ailing grandmother in the home.  You assisted your elderly grandmother during your late childhood and adolescence with various personal care tasks including bathing, cooking and cleaning in the home.  You managed to obtain some paid employment during this period as a drink's waiter in Beirut.

36You apparently shared a particularly close bond with your grandmother, which no doubt made her passing when you were 16 years of age quite difficult.  Following your grandmother’s death, your older siblings arranged for you to permanently relocate to Melbourne.

37Upon your return to Melbourne, your father and your stepmother had made a new life for themselves it seems, and you now have 12 full and half siblings.  Due to the ongoing conflictual relationship between yourself and your stepmother in particular, combined with your distant relationship with your father, upon your relocation to Melbourne you resided instead with siblings and friends.  Sadly, your father died from COVID-19 related issues in late 2021.

38In Australia, you managed to obtain some forms of employment working in a fish and chip shop and in various jobs doing manual labouring through family connections.  You have previously worked as a tiling labourer, brickies labourer, and in a butcher’s shop, and have apparently been a hard worker.

39Sadly, you have encountered difficulties with regards to substance abuse since relocating to Australia.  You began smoking cannabis daily at the age of 22 and quickly developed dependence.  You were reportedly smoking up to three and a half grams of cannabis per day prior to entering custody.  As is often the case, your descent into illicit substance use has occurred in the context of a negative peer environment.  You were first introduced to methamphetamines or ice by associates at the age of 23 and quickly became dependent.  You would smoke between .2 grams and .5 grams per day and would sometimes stay awake for three or four days in a row.  Your counsel indicated that you were smoking ice heavily in the leadup to and during the period of the offending.  According to your counsel, your descent into drug use escalated following you being off work following an industrial accident shortly before your 22nd birthday when you were working for a cousin who was a bricklayer and a set of scaffolding fell striking you to the head confining you to bed ultimately for some two months.

40Save for the current and subsequent offending, you do not have a significant criminal history at all, with your one prior matter relating to driving offences for which you received a fine in May 2015 from the Sunshine Magistrates’ Court.

41I was informed and accept that the offending for which you now fall to be sentenced occurred in the context of your reckless and heavy use of methylamphetamines and emersion within a negative peer sub-culture.  Indeed, the aggravated burglary offending for which you received a combination sentence including a Community Correction Order appears also to have been drug-related on your counsel’s account.  A Forensicare Mental Health Advice and Response Service (MHARS) assessment report dated 5 May 2022 tendered at your plea hearing and marked Exhibit C with regards to that aggravated burglary offending refers to illicit substance use being a main contributing factor to your offending.  Whilst that report also raises potentially at least some issues with regards to your intellectual functioning, there is nothing concrete before me with which I could make any findings in that regard. 

Sentencing Factors and Purposes

42As outlined by your counsel at your plea hearing and in written submissions, there are a number of mitigatory factors relevant to sentencing in your case. 

43Your matter resolved to a plea of guilty following appropriate plea negotiations between the prosecution and defence following a case conference in this jurisdiction.  Whilst it is not submitted that your plea was entered early, your plea of guilty is nevertheless of great significance in the sentencing synthesis, particularly given the impacts of COVID-19 on the extraordinary backlogs being experienced in this court.  Your plea represents your preparedness to accept responsibility and to facilitate the course of justice.  Considerable time and cost has been saved through the avoidance of contested proceedings.  I agree with your counsel that in the context of the COVID-19 pandemic, the utilitarian benefit to your plea of guilty, and the “Worboyes[1] discount” as it is often referred to, is significant in your case. 

[1]        Worboyes v The Queen [2021] VSCA 169.

44I am also prepared to make a mitigatory allowance on the basis of your plea of guilty reflecting a degree of remorse for your offending conduct pursuant to Philips’ case.[2]

[2]Philips v R [2012] 222 A Crim R 149 at [168]

45As I indicated, you have now spent 273 days in custody by way of pre‑sentence detention.  Much of that time has been spent in custody in the context of the COVID-19 pandemic, and the now well recognised hardships associated with the custodial environment given COVID-19.  I have no doubt that your time in custody has been made more arduous due to the restrictions and other matters associated with COVID-19 warranting a significant sentencing discount. 

46I also accept that there has been a delay of more than three years from the date of your offending to the date of sentencing, and that this has no doubt weighed heavily upon you warranting a mitigatory allowance.  As I indicated at your plea hearing, a degree of the delay is of your own making, given in particular your failure to appear at your plea hearing in July of this year.  Furthermore, it can hardly be said that you have meaningfully rehabilitated in the intervening period given the subsequent offending.  However, in accordance with well-established authority, I have made a mitigatory allowance with regards to the impacts of delay on sentencing.

47Whilst you are now 26 years of age, it cannot be forgotten that you were just 22 and 23 at the time of your offending, and at that time had an extremely modest criminal history.  In formulating an appropriate sentence in your case, I have had regard to the authorities with regard to sentencing of youthful offenders, and in particular the need to facilitate where appropriate your rehabilitation. 

48Turning now to your prospects of rehabilitation.  Any assessment in that regard is far from straightforward.  As I have stated, you remain a relatively young man with a modest criminal history in terms of the offending for which you now fall to be sentenced.  As I have indicated in the course of my sentencing remarks, however, your trajectory since the index offending has been far from straightforward.  You have re-offended in a significant fashion.  In January 2022, with these proceedings hanging over your head, you engaged in similar dishonesty offending to the offending for which you now fall to be sentenced (informant Tipas).  In May 2022, you received a Community Correction Order for other offending.  Whilst subject to that Community Correction Order, on 26 June 2022 whilst on bail for these matters, you engaged in wilful damage to the door of a property then occupied by your partner it seems in a family violence context (informant Burrell).  You then failed to appear before me at your plea hearing on 1 July 2022, whereupon a warrant was issued for your arrest.  Whilst that warrant was outstanding, in July 2022 you engaged in further dishonesty offending (informant Tipas).  Unsurprisingly, you are now facing breach proceedings for the Community Correction Order imposed in May this year.  Whilst as evidenced from the letter from Melbourne City Mission dated 3 May 2022, Exhibit D at your plea hearing, you have managed for a period to obtain and maintain public housing, there is an absence of any information before me with regards to any meaningful rehabilitative efforts on your part during the three years or so between the offending and the time of sentencing.  I also remain somewhat troubled with regards to your failure to appear before me at your plea hearing in July of this year.  I was informed at your plea hearing on
7 September 2022 that you had failed to appear as you had broken your leg and couldn’t get transport to Court.  In the absence of any medical material whatsoever to verify this claim, I expressed scepticism with regards to this explanation.

49Having now been provided with medical documentation indicating a “fractured foot” on 2 June 2022, I accept the veracity of this injury, however, I remain troubled as to how this precluded your attendance approximately a month later before me.  I also remain troubled as to why in any event any difficulties in attending Court were not communicated to the Court.  I also remain troubled by the fact that notwithstanding your injury, you still managed to offend in the intervening period (Informant Burrell).  I am also troubled by the fact that you reoffended before ultimately having the warrant for failure to appear executed upon you
(Informant Tupas).

50Perhaps most concerningly, notwithstanding the precarious stage of your criminal proceedings, you have been found unsuitable by Corrections for another Community Correction Order with the relevant report highlighting a concerning degree of ambivalence on your part to undertaking a Community Correction Order.  In my view having regard to all of these matters, your prospects for rehabilitation are speculative and somewhat guarded, and very much dependent upon your ability to overcome your illicit substance use problems for which you will clearly need specialist interventions. 

51Clearly, the parity principle is a matter of considerable significance in the sentencing exercise in your case.  I sentenced your co‑offender, Mr Mallouk, for the identical 24 charges on the indictment on 15 February 2022 to a sentence of imprisonment of 114 days, together with a two-year Community Correction Order with various conditions.  Having regard to your respective roles in the offending and the sentencing factors taken into consideration in sentencing Mr Mallouk, I accept that parity remains a significant sentencing factor in your case, noting that you have served more time in custody than Mr Mallouk, and that your criminal history is less than that of Mr Mallouk.  In written submissions on sentence, the prosecution referred to the substantially similar offending as between you and Mr Mallouk, and that the sentence imposed on Mr Mallouk “clearly raises parity”. However, due to the recent events as I have described them, the prosecution now submits that a combination sentence involving a sentence of imprisonment and a Community Correction Order is not appropriate, and that a term of imprisonment with a parole component is instead appropriate.

Sentence to be Imposed

52In relation to the offending for which you now fall to be sentenced, I must impose a sentence which reflects the important sentencing purposes of denunciation and general deterrence.  Furthermore, community protection given the nature of the offending remains a significant sentencing purpose.  Given your plea of guilty and limited criminal history, I am satisfied that specific deterrence, whilst still relevant, is of less importance, though your recent offending and poor compliance with a Community Correction Order highlights that it remains relevant in your case.  For the reasons that I have articulated in my sentencing remarks, the facilitation of your rehabilitation remains an important sentencing purpose, though your rehabilitative prospects now are somewhat clouded in my view.

53Having carefully considered all relevant matters, I have determined that a sentence of imprisonment which incorporates a period of parole eligibility is the only reasonable disposition available in the circumstances of your case.  You are not an appropriate candidate for a Community Correction Order.  Whilst you will clearly require specialist interventions and supports upon your release from prison and return to the community, in my view this can be most appropriately facilitated through parole should this be granted in your case.  Whilst the sentence I am about to impose will take into account the parity principle, there are in my view grounds for disparity as between you and Mr Mallouk – namely your recent reoffending, including of a similar nature, and including whilst at large following your failure to appear before me at your plea hearing which bears upon your prospects of rehabilitation and the need for community protection, and your unsuitability for a Community Correction Order according to Corrections.  Other aspects of disparity include the fact that when I sentenced Mr Mallouk, a Verdins[3] allowance was made in his favour, and I made a favourable finding with regards to Mr Mallouk's prospects for rehabilitation given that he at the time of sentencing had been on bail and complied with strict bail conditions since September 2019, and had a plethora of pro-social indicia present in his case, including stable accommodation with his supportive family and entrenchment in suitable employment. 

[3] R v Verdins & Ors (2007) 16 VR 269

54Mr Ali, I now come to the portion of the hearing where I impose the sentences upon you. 

55In relation to the second indictment on the charge of theft, this charge being qualitatively different and less serious than the charges on the main Indictment, you are convicted and fined $400.

56Turning now to the charges on the main indictment, in my view an aggregate sentence of imprisonment is warranted having regard to the fact that the offences form part of a series of offences of a similar character.[4]

[4] Section 9(1) of the Sentencing Act 1991.

57In relation to all of the charges on the main indictment, you are convicted and sentenced to an aggregate sentence of 16 months' imprisonment.  I order that you serve 10 months before becoming eligible for parole.

58

Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 273 days’

pre-sentence detention, and I order that this be deducted administratively from your sentence.

59It is not a matter for me at all, but on my calculation that leaves Mr Ali eligible for parole within a few weeks. 

60Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty, but been found guilty, I would have imposed an aggregate sentence of four years' imprisonment with a non-parole period of three years.

61Finally, I make the compensation order pursuant to s86 of the Sentencing Act 1991 in the sum of $12,848.50 to AAI Limited trading as Vero Insurance, that application not being opposed by you.

62Turning firstly to you, Mr Goetz, have I missed anything or are there any issues with regards to the sentence?

63MR GOETZ:  No, Your Honour.

64HIS HONOUR:  Thanks.  Mr Barker?

65MR BARKER:  Would Your Honour mind repeating the 6AAA, Sir?

66HIS HONOUR:  Four years with a non-parole period of three years.

67MR BARKER:  Thank you, Your Honour.

68HIS HONOUR:  Same 6AAA as imposed on Mr Mallouk.  Thanks, adjourn the court, please. 

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