Director of Public Prosecutions v Allafta
[2019] VCC 60
•1 February 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-00209
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABBAS ALLAFTA |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 September 2018; 9 November 2018; 29 January 2019 |
| DATE OF SENTENCE: | 1 February 2019 |
| CASE MAY BE CITED AS: | DPP v Allafta |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 60 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – armed robbery – attempted armed robbery – obtain property by deception – attempt to obtain property by deception – theft – two co-accused – youthful offender – relevant prior convictions – mild intellectual disability –methamphetamine use during offending period – father of infant twins – supportive family – totality
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:Total effective sentence of 23 months’ imprisonment and a community correction order for 2 years’ duration with conditions including supervision; assessment and treatment for drug dependency; assessment and treatment for mental health; offending behaviour programs; non-association; residence restriction; curfew; judicial monitoring; justice plan.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper (Plea) Ms T. Schultz (Sentence) | Solicitor for Public Prosecutions |
| For the Accused | Mr J. McQuillan | Theo Magazis & Associates |
HIS HONOUR:
1Abbas Allafta, you have pleaded guilty to four charges of armed robbery (Charges 1, 4, 10 and 13) for which the maximum penalty is a term of imprisonment of 25 years; three charges of attempted armed robbery (Charges 3, 6 and 12) for which the maximum penalty is a term of imprisonment of 20 years; two charges of obtaining property by deception (Charges 2 and 5) for which the maximum penalty is a term of imprisonment of ten years; one charge of attempting to obtain property by deception (Charge 11) for which the maximum penalty is a term of imprisonment of five years; and one charge of theft (Charge 8) of theft for which the maximum penalty is a term of imprisonment of ten years.
2Tendered on the plea as Exhibit 1 was a summary of prosecution opening containing a detailed account of your offending. I annexe a copy of that document to these sentencing reasons. I do not propose to repeat in detail the circumstances of your offending.
3In short, over a three-week period, your offending comprised the street robberies of passers-by of their mobile phones and/or wallets. You acted in the company either of your co-accused, Mr Saif Rashid, or an unknown male. In Charges 10, 12 and 13, your co-accused, Mr George Ghannoum, was the getaway driver.
4Weapons carried, used or described by victims included a wrench, a metal bar, a small flick knife, a knife, and a small axe. Persons walking the street would be approached from behind and told to hand over their mobile phones or other items. Verbal threats would also be employed, either to secure the success of the robbery or to avoid detection.
5On one occasion, when the victim refused to hand over his items (Charge 6), physical force was actually used rather than merely threatened. On another occasion, you emerged from Mr Ghannoum's vehicle wearing a mask and the victim was confronted by you holding a knife to his stomach (Charge 12). You got back into the vehicle, laughing, and saying it was all a joke. The attempts (Charges 3, 6 and 12) arise out of your victim's resistance, or loud panic, or your apparent walking away.
6The property offences comprise your onward sale of phones (Charges 2 and 5), use of cards stolen (Charge 11), or driving off without paying for petrol (Charge 8).
7You, along with your co-accused, were arrested on 22 June 2017. In interview, you admitted the offending. You have been in custody since your arrest.
8I turn now to your personal circumstances.
9You were born on 6 September 1995 and you are now aged 23, and you were aged 21 at the time of the offending. You were born and raised in Melbourne's northern suburbs.
10You spent your childhood with your parents, who are of Iraqi origin, and your three brothers. Your mother is on home duties and is currently being treated for breast cancer and lymphoma. Your father is a tradesman but works part-time in order to care for your mother. You report having a good relationship with both of your parents and that none of your immediate family has had any contact with the criminal justice system. You reported no childhood exposure to trauma or abuse.
11Prior to your incarceration, you lived with your wife, whom you married in Iraq when you were 19. You have twins, a son and a daughter, who are almost two years old, and you were living at your parents' house in Thomastown. I was told that the Department of Health and Human Services had intervened due to your continued drug use and offending.
12You attended Thomastown Secondary College but were expelled at the end of Year 8 due to your disruptive and violent behaviour. You then went to Lalor North Secondary College, but met the same fate at the end of Year 9. Your schooling was marked by learning difficulties and you struggled to progress academically. You admit that you treated school like a playground and that it was your fault that you failed to apply yourself at school.
13You commenced a pre-apprenticeship plastering program when you were 15, but you failed to complete it due to your repeated absences which you attributed to your drug addiction. You fell into a period of unemployment for some years. In early 2017, shortly before this offending took place, you were working as a traffic controller on a casual basis, but by your own admission, you were spending most if not all of your income on drugs.
14You began using drugs in your adolescence, primarily using cannabis from the age of 13 and later turning to methamphetamine at the age of 15. You experimented less frequently with LSD, cocaine, ecstasy and amphetamine. Your methamphetamine use peaked at one gram per day; you were using around half a gram per day prior to and during this offending period. Any income you received was spent on drugs, and when you were unemployed, you resorted to stealing from your parents and selling your own possessions to fund your own habit.
15You have a criminal history dating back to the Heidelberg Children's Court in 2012. At age 17, you appeared twice in the Children's Court for offences including theft, assault, recklessly causing injury, and possession of a controlled weapon. You were placed upon probation.
16Your first adult court appearance was in 2014 at Broadmeadows Magistrates' Court, where you were convicted and placed on a 12 month community correction order with a community work condition for offences of threat, threat to inflict serious injury, and assault with a weapon. That order was subsequently breached by further offending and failure to comply with conditions, but was then varied in 2016. In 2017, further offending breached that order. However, the order was confirmed.
17You were also sentenced to a three month term of imprisonment for theft, entering a building with intent to steal, and criminal damage. That reflected your first sentence involving a term of imprisonment and was imposed after your arrest and remand for this offending.
18Whilst of course you are not to be sentenced again for offences which have you have already been dealt with by the courts, such matters do inform my assessment of your prospects for rehabilitation, the need for specific deterrence and the need for community protection. I view them as relevant prior convictions.
19Since your remand on 22 June 2017, you have been kept in protective custody. The reasons for such protection are stated in Exhibit 15AA; you are at significant risk of threat from other prisoners, you have a history of suicide attempts and self-harm whilst in custody, and your medical condition of epilepsy requires ongoing treatment.
20Turning now to your medical history, you report that you began having epileptic seizures at age four, and your condition and treatment have been documented since 2014 when you were 19. You have been taken to hospital on numerous occasions and you continue to have seizures. It appears that your use of methamphetamine and the associated sleep deprivation has preceded some of your seizures, and whilst you were aware of this at the time, you continued to use methamphetamine.
21You report you suffered head injuries from falling down when having a seizure, as well as concussions from kickboxing at age 18 and being assaulted at age 21. You report both your short-term and your long-term memory have been adversely affected, which accords with the opinions of the psychologist and the neuropsychologist who assessed you, and the submissions of your counsel on the plea.
22Any perception of offence minimisation, I accept, should perhaps be put at the door of your poor short-term memory rather than anything more sophisticated.
23Tendered on the plea was a report of Ian Mackinnon, consultant psychologist dated 23 September 2018 (Exhibit 3AA). Mr Mackinnon did not test your cognitive or intellectual functioning but noted that your immediate and short-term memory faculties appeared degraded. He was of the opinion that you met the criteria for Mixed Anxiety and Depression Disorder as well as Poly-Substance Abuse Disorder. According to Mr Mackinnon, your Mixed Anxiety and Depression Disorder had its antecedence in your epilepsy, drug use, substance abuse, criminal history, lack of achievement and your personal sense of failure and disappointment.
24Mr Mackinnon was of the view that you do not possess an entirely antisocial character, but rather, that you have a tendency to act aggressively because you do not want to be seen as weak or to be defined by your epilepsy.
In Mr Mackinnon's opinion, this construction of a "tough guy" identity, coupled with negative peer influences, provide the background to your offending behaviour both past and present.25You expressed remorse for your behaviour to Mr Mackinnon and you appear now to have insight into how your behaviour has affected your victims and your own family, as well as to how your drug habit has landed you in custody.
You said in relation to your offending, to Mr Mackinnon, “The ice did play a part. If I hadn’t lapsed back into ice use, it wouldn’t have happened.”26Your plea hearing was adjourned in order to obtain a neuropsychological report to address the possibility of acquired brain injury or cognitive impairment. This report, authored by Dr Matt Treeby, clinical neuropsychologist, dated
29 October 2018, is Exhibit 14AA.27Dr Treeby conducted a number of tests to measure your cognitive and intellectual functioning. His opinion was that you have got longstanding intellectual difficulties which accords with your self-reported academic difficulties. You scored either borderline or extremely low in tests measuring your general intellectual functioning, verbal comprehension skills, and perceptual and visual reasoning skills. You have a full-scale IQ of 65. Testing of your learning and short-term memory skills similarly fell into the borderline or extremely low range, and your reading skills were measured to be at the level of Grade 4.
28Dr Treeby concluded you have a mild intellectual disability. He noted that your premature birth, low birth weight, drug use from mid-adolescence, and your ongoing epileptic seizures may have been contributing factors to this intellectual disability, but was unable to formally identify its origin.
29Dr Treeby's opinion was that this intellectual disability may have affected your ability to understand the consequences of your actions, to make reasoned and appropriate judgments, and control your behaviour. He also noted that your intellectual disability renders you vulnerable to influence from your peers. Further, he noted that these difficulties were likely to be exacerbated by your use of methamphetamine and confirmed the diagnosis of Stimulant Use Disorder and Cannabis Use Disorder.
30According to Dr Treeby, your risk of recidivism would be greatly reduced should you stop taking drugs and avoid negative peer influences. That means, in plain language, Mr Allafta: stop taking drugs and stop hanging out with the wrong crowd. That is a most compelling observation. Your prospects of rehabilitation, Mr Allafta, are entirely dependent upon your ability to engage with support services and your ability to remain drug-free.
31Your plea was further adjourned in light of the matters raised by Dr Treeby for preparation of the Community Corrections extended pre-sentence report (Exhibit 15AA) authored by Mr Craig Goodwin and dated 23 January 2019, and a Justice Plan and Overview Report (Exhibits 16AA and 17AA) authored by Ms Kelly Johnson and dated 17 January 2019. I also received a statement of intellectual disability (Exhibit 18AA) dated 17 December 2018 and authored by Mr David Pearce.
32The Community Corrections pre-sentence report identifies you as being a high risk of reoffending but nonetheless, found you suitable for a community correction order at this time. Key to such a recommendation was your positive engagement in the assessment process, the beginnings of insight into the drivers of your offending, that is to say, the link between your methamphetamine use and your acquisitive offending, that you were beginning to demonstrate your awareness of your limitations, and most crucially, Department of Health and Human Services support. Mr Goodwin noted that:
"Without the support on offer from DHHS in the form of a Justice Plan, this service may have had serious reservations in regard to Mr Allafta's ability to comply and complete such an order. It will certainly need to be a collaborative effort by all involved, but most importantly Mr Allafta himself."
33Mr Roper, on behalf of the prosecution, submitted correctly that the primary sentencing purposes in your case were general deterrence, just punishment and denunciation. Mr Roper submitted that for you, Mr Allafta, in light of your criminal history, the need for specific deterrence also comes to the fore.
34Notwithstanding your relative youth, he submitted the objective gravity of your offending called for immediate terms of imprisonment with a non-parole period. He pointed to the multiple victims and submitted there should be a sentence passed in relation to each victim with some cumulation to give effect to the individual actions comprised in the robberies.
35Mr McQuillan, counsel on your behalf, rightly conceded that this was serious offending. He accepted the relevant sentencing purposes were general and specific deterrence, and denunciation, and just punishment.
36Whilst accepting that the principles in the well-known case of Verdins[1] would not be engaged, Mr McQuillan submitted nonetheless that your moral culpability was lessened in light of your intellectual functioning and your intellectual disability.
[1] R v Verdins; R v Buckley; R v Vo [2007] VSCA 102.
37The statement of intellectual disability (Exhibit 18AA) speaks of your significant sub-average general intellectual functioning and significant deficit in adaptive behaviour, each of which became manifest before the age of 18 years. Your disability, it seems, had not been recognised prior to your remand in respect for these offences.
38Mr McQuillan's submission, in short, was that a sentence enabling you to be placed upon a community correction order, in addition to the time that you have already served on remand, was within range; he submitted for your immediate release. He made clear that the submission was made in light of the recommendations of the Justice Plan and the support you would have from a Disability Justice Coordinator who would work in tandem with Corrections.
39In the course of the plea, I heard from and was assisted by Ms Johnson, the Disability Justice Coordinator, who authored Exhibits 16AA and 17AA as to the particular programs which would be available to you. Mr McQuillan submitted that the close monitoring and supervision available to you, in addition to the ongoing support of your family, offered the best prospect for your rehabilitation and therefore the protection of the community. He submitted, in short, this was an opportunity that is presented now and that should be seized now.
40Mr Allafta, the offences to which you have pleaded guilty are serious matters, as must be plain to you by the maximum penalty imposed by Parliament, 25 years imprisonment for armed robbery. Your offending was driven simply by a desire to get money to buy drugs to which you had been introduced many years before and on which, at the time of your offending, you were dependent.
41That is the context for the offending, but it cannot be an excuse for it. In order to get that money, you preyed on innocent passers-by who were going about their day-to-day business. They were being confronted by youths carrying bladed weapons at times, or other items intended to place them in fear. By such means, you sought to take from them their personal items which, although not necessarily possessing a high dollar price, were potentially of great value to them. People may have their whole lives on their mobile phones and do not always have everything backed up. Personal information, photos of loved ones and intimate and important moments all can be lost. Those are the items that you sought to take.
42Such offending is easy to commit and it impacts not only upon the immediate victims of your offending, but upon the community at large, because such offending creates within the community a sense of alarm and undermines the community's sense of safety and wellbeing. Mr Allafta, people must be entitled to go about their everyday business without fear of being robbed or assaulted in such a manner. The courts will do everything they can to ensure the safety of our streets, and those who come before the court charged with such offences must know that they will be punished, and save in the most exceptional circumstances, they will lose their liberty.
43Your offending was not isolated; it continued over a three-week period. On one view, it could be said to have escalated from pretending to have a weapon after a mobile phone was already in your possession (Charge 1) to holding a knife to your victim's stomach whilst wearing a black mask, and then moving away, laughing at the fear and distress that you had caused (Charge 12).
44Your counsel, Mr McQuillan, wisely and realistically accepted that a term of imprisonment was an inevitable disposition for sustained offending of this nature. The issue is whether the lengthy period of time that you have already served whilst on remand was sufficient to mark the gravity of the offending.
45In sentencing you, Mr Allafta, I must have regard to a range of different factors. I must give effect to principles of both general deterrence, that is, I must send a message to the community, to others, to deter them from behaving as you have done, and specific deterrence, that is, I must send a message to you to deter you from any repeat of such behaviour. I must express the community's denunciation of your conduct, and I should promote, if possible, your rehabilitation. I must take into account the effect that your crimes have had upon your victims, and I must have regard to current sentencing practices as determined and described by the Court of Appeal for the kind of offence that you have committed, and the maximum penalties imposed by Parliament. In short, what I have to do, Mr Allafta, is try to balance your personal circumstances with the circumstances of your offending.
46I have had regard to all of the material placed in front of me and to the submissions of counsel. For the avoidance of doubt, I have had regard to your plea of guilty which I accept and treat as presented at an early opportunity. That plea attracts the benefit of saving to the community, the time, cost and the trauma of a trial. I also regard it as an indication at least of your developing insight that actions have consequences, not just for you, but for others; the community at large and the family who love you and stand by you.
47I have regard to your relative youth in that you were 21 at the time of this offending.
48I have regard to your hitherto undiagnosed intellectual disability, which in my view, as already stated, does reduce to some extent your moral culpability for the offence, and "moral culpability" means the extent to which you could be held liable for your actions and for the consequences of those actions.
49I have regard, Mr Allafta, to the continued close support of your family. As I said, I note that your mother and father are here in court again, and that your brother has offered you a home and is willing to have you living with him.
50I have regard to all of the matters raised in the Community Corrections pre-sentence report, the Justice Plan, and the Overview Report (Exhibits 15AA, 16AA and 17AA).
51I have regard to the sentencing principle of totality.
52In my view, Mr Allafta, the objective gravity of the offending does not permit your immediate release. However, I am persuaded on the basis of the material in front of me and the able submissions made by your counsel, that I can pass a sentence which will enable you to be placed upon a community correction order with a Justice Plan condition.
53If you could stand up, please, Mr Allafta.
54On Charge 3, attempted armed robbery, you are sentenced to a term of imprisonment of 15 months.
55On Charge 4, armed robbery, you are sentenced to a term of imprisonment of 21 months.
56On Charge 5, obtain property by deception, you are sentenced to a term of imprisonment of four months.
57On Charge 6, attempted armed robbery, you are sentenced a term of imprisonment of 21 months.
58On Charge 8, theft, you are sentenced to a term of imprisonment of two months.
59On Charge 10, armed robbery, you are sentenced to a term of imprisonment of 21 months.
60On Charge 11, attempt to obtain property by deception, you are sentenced to a term of imprisonment of three months.
61On Charge 12, attempted armed robbery, you are sentenced a term of imprisonment of 21 months.
62On Charge 13, armed robbery, you are sentenced a term of imprisonment of 21 months.
63I direct that one month of the sentence on Charge 6 and one month of the sentence on Charge 12 run cumulative to each other and cumulative to the sentence imposed on Charge 4.
64This makes a total effective sentence of 23 months' imprisonment.
65On Charge 1, armed robbery, and Charge 2, obtaining property by deception, you are sentenced to an aggregate community correction order of two years.
66As to the conditions of the community correction order, Mr McQuillan will explain the core conditions to you. In addition to those, I am attaching the following conditions:
(i) You must be under the supervision of a Community Corrections Officer for a period of two years;
(ii) You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the Regional Manager;
(iii) You must be referred for and undergo an assessment with ASCO-COATS and follow all and any treatment recommendations made;
(iv) You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital, or residential facility, as directed by the Regional Manager;
(v) You must engage with a general practitioner for the purposes of completing a mental health care plan and referral to a psychologist;
(vi) You must engage with any treatment advised by your general practitioner for maintaining mental health and appropriate and health coping strategies;
(vii) You must participate in programs and courses that address factors relating to the offending, as directed by the Regional Manager;
(viii) You must not contact or associate with your co-accused George Ghannoum and Said Rashid for a period of two years;
(ix) You must reside at your brother’s address for a period of two years;
(x) You must remain at that address between the hours of 9 pm and 6 am for a period of six months, and if you fail to comply with this order, the Secretary to the Department of Justice or a delegate may give you a direction increasing the curfew in accordance with the relevant provision of the Sentencing Act;
(xi) You must attend at this Court for judicial monitoring, and the first review will be on 21 October 2019 at 9.30 am;
(xii) You must participate in the services specified in the Justice Plan for a period of two years;
(xiii) You must engage with a Disability Justice Coordinator from the Department of Health and Human Services for a period of two years;
(xiv) You must participate in the referral process to the relevant services and attend and participate in recommended programs under the Justice Plan for a period of two years.
67Mr Allafta, do you consent to being placed upon a community correction order?
68OFFENDER: Yes, Your Honour.
69HIS HONOUR: You must attend at Coolaroo Community Correctional Services within two clear days after your release from prison, which is the commencement of this order.
70My associate will come to you now and ask you to sign a document.
71Pursuant to s.18(4) of the Sentencing Act, I declare that you have served 497 days of the sentence that I have passed upon you this morning and direct that this be entered into the records of the Court.
72Pursuant to s.6AAA of the Sentencing Act, had you pleaded not guilty, you would have been sentenced to a total effective sentence of five years and three months and a non-parole period of four years and two months.
73I am also signing an order permitting the authorities to make you undergo a forensic procedure for the taking of a buccal swab, a DNA sample. They will take the sample and it then goes onto a database. Should you refuse to provide the sample, then officers are entitled to use such force as is reasonably necessary in order to take the sample from you.
74I accept, Mr Allafta, that you have not necessarily had the best start in life in terms of your intellectual challenges, but you have two young children. They need a father, a father who is a good role model. Not with some notion of what it is to be a man, but someone who can teach them values. Teach them how to be a good person, teach them to love, teach them to be respectful. That is what they need, and I am giving you an opportunity. It is an opportunity for you to build upon what you said to the workers who prepared these reports. This order is closely constructed to give you that best opportunity but you have to attend and you have to come to the party. Do you understand?
75OFFENDER: Yes, Your Honour.
76HIS HONOUR: I will monitor you, but if you do not come to the party, you know what the alternatives will be, do you not?
77OFFENDER: Of course, Your Honour.
78HIS HONOUR: You have a little over six months to serve, and that will be time for you to think about the challenges that lay ahead to get yourself into the right mind space to be able to embrace them and to be ready to engage with the support that is going to be there for you in the community.
79In terms of custody management issues, I will note his epilepsy and depression, and the ongoing management of those conditions with medication.
80MR McQUILLAN: Thank you, Your Honour.
‑ ‑ ‑
ANNEXURE A
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Court Reference: CR-18-00209; CR-18-00654; CR-18-00656 Indictment No: C1711313 |
CRIMINAL JURISDICTION
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
| Prosecution of Abbas ALLAFTA, George GHANNOUM and Saif RASHID |
SUMMARY OF PROSECUTION OPENING ON PLEA
| Date of Document: Filed on behalf of: Prepared by: JOHN CAIN Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | 6 September 2018 Director of Public Prosecutions Solicitors code: 7539 Reference: Telephone: File Number: C1711313 |
Background
The first offender Abbas ALLAFTA (ALLAFTA) was born 6 September 1995. At the time of the offending, he was 21 years old and is now 22 years old. Mr ALLAFTA resides in Thomastown with his parents, wife and children.
The second offender George GHANNOUM (GHANNOUM) was born 14 March 1995. At the time of the offending, he was 22 years old and is now 23 years old. Mr GHANNOUM resides in Epping with his parents.
The third offender Saif RASHID (RASHID) was born 23 October 1996. At the time of the offending he was 20 years of age and is now 21 years old. Mr RASHID resides in Epping with his parents.
In June 2017, Mr GHANNOUM was the owner of a red 2008 Holden Commodore sedan. At the relevant time this vehicle was unregistered.[2] This vehicle has been modified by the placing of blue tape on the rear boot lights above the number plate.[3]
[2] Exhibit 53, HUB pg. 363
[3] Statement of LSC Daniel Sage, HUB pg. 192
Circumstances of Offending
29 – 30 May 2017
About 11.02pm on Monday 29 May 2017, Prem SADARAM was walking home along Cheddar Road in Reservoir. He was listening to music through headphones connected to his mobile phone. Mr SADARAM was carrying his mobile phone, a black Oppo brand smartphone, in his hand.
While on Cheddar Road, Mr SADARM observed two males walking behind him. One of these males was Mr ALLAFTA. The other male asked Mr SADARAM “Hey mate can I use your phone, my phone is turned off and my friend needs to make a call”. Mr SADARAM felt uneasy about providing his phone but was reassured after Mr ALLAFTA had a brief conversation with him about being a chef.[4]
[4] Statement of Prem SADARAM, HUB pg. 53
Mr SADARAM was told a number by the males and dialled it for them; he then handed over his phone to Mr ALLAFTA. There was no answer to this call, so the males asked to send a message. Mr SADARAM took back is phone and set it up to send a text message. He then handed his phone over to the other male, who sent a text message.
The two males then started to walk away, still holding Mr SADARAM’s mobile phone. Mr SADARAM called out “where are you going? Give me my phone.” The other male then said words to the effect of “fuck off mate, just go away from me.”
Mr SADARAM then reached out and grabbed Mr ALLAFTA on the arm. Mr ALLAFTA said words to the effect of “leave my hand”. He then put his hand behind his back and turned to face Mr SADARAM.
10.Mr ALLAFTA held a metal pipe close to the right side of his body, pointed towards Mr SADARAM[5] and said “Do you want me to shoot! It’s a real gun”. Mr SADARAM formed the belief that Mr ALLAFTA was holding a gun and let go of him. (Charge 1 (ALLAFTA): Armed Robbery)
[5] Committal Transcript, Prem SADARAM pg. 32 ln 16; Committal Exhibit B.
11.The two males then continued walking away in the direction of Palm Avenue. They got into a red Holden Commodore driven by a third male and left the area.
12.About 5.51pm on Tuesday 30 May 2017, Mr ALLAFTA attended the Mini Mart Milk Bar at 831 High Street in Epping. He offered store person Said BARAMI Mr SADARAM’s mobile phone for sale. Mr ALLAFTA told Mr BARAMI that the phone was brand new and that he had the box at home. Mr BARAMI was suspicious and asked if the phone was stolen.[6] Mr ALLAFTA handed over his driver licence as proof that the phone was not stolen. Mr BARAMI was satisfied and bought the phone for $45.00 (Charge 2 (ALLAFTA): Obtain Property by Deception).
[6] Statement of Said BARAMI, HUB pg. 56A
1 June 2017
13.About 11.15pm on 1 June 2017, Mr Allan SINGLETON was walking home from the Thomastown Railway Station. As he was walking down Frederick Street in Thomastown, Mr RASHID and Mr ALLAFTA came up behind him.
14.One of the men said ‘hey’ to get Mr SINGLETON’s attention. When he turned around, one of the males said “give me your phone”. Mr SINGLETON did not hand over his phone.
15.The offender again said “give me your phone” and started to wave a wrench in a threatening manner towards Mr SINGLETON.[7] (Charge 3 (ALLAFTA & RASHID): Attempted Armed Robbery)
[7] Statement of Allan SINGLETON, HUB pg. 66
16.Mr SINGLETON dropped to the ground in fear, shielding his face with his arms and yelling “help!” This caused Mr RASHID and Mr ALLAFTA to run to a Holden Commodore parked nearby and drive away without obtaining any property from Mr SINGLETON.
4 -5 June 2017
17.About 10.30pm on 4 June 2017, Mr Liam JONES was walking on Alexander Avenue in Thomastown, heading towards the Thomastown Railway Station when he was approached by Mr RASHID and Mr ALLAFTA. One of them was armed with a metal bar and the other with a small flick knife.
18.The offender with the metal bar told Mr JONES to give him his phone. Mr JONES complied and handed over his Apple iPhone 6S. The offender then demanded the pin code to unlock the phone, which Mr JONES also provided.
19.The offender with the knife the demanded Mr JONES’ wallet. Mr JONES handed his wallet over, but the offender gave it back when he discovered that there was no money in it.
20.The offenders then demanded that Mr JONES’ provide his iCloud password. Before he could do so, they directed him to close his eyes and walk around the corner. One of the offenders placed his hand on Mr JONES’ shoulder to escort him onto Marcia Street.
21.While Mr JONES was being escorted, one of the offenders has said “don’t open your eyes or we will fucking kill you” before again demanding his iCloud password. Mr JONES provided his iCloud password to the offenders, who then left.[8] (Charge 4 (ALLAFTA & RASHID): Armed Robbery)
[8] Statement of Liam Jones, HUB pg. 69
22.Mr JONES heard the offenders get into a car and then saw a red Holden Commodore drive off.
23.About 3.08am on 5 June 2017, Mr GHANNOUM took a series of photographs of Mr JONES’s Apple iPhone with his mobile phone.[9]
[9] HUB Exhibit 56, pg. 392
24.About 9.00am on 5 June 2017, Mr Eric MANUEL was browsing the Facebook Marketplace application for a cheap mobile phone.[10] He located an advertisement placed by Mr GHANNOUM and contacted him regarding the phone. Mr MANUEL agreed to by the phone for $450.00.
[10] Statement of Eric Manuel, HUB pg. 70A
25.About 10.30am on that same day, Mr GHANNOUM and Mr ALLAFTA drove to Heidelberg to deliver the phone. Mrs Geraldine MANUEL met them on the street at collected the phone. The phone was unlocked and did not have a sim card or charger. Mrs MANUEL paid the offenders $450.00 for the phone and they drove off in Mr GHANNOUM’s red Holden Commodore.[11] (Charge 5 (ALLAFTA & GHANNOUM): Obtain Property by Deception)
[11] Statement of Geraldine MANUEL, HUB pg. 71
10 June 2017
26.About 5.40pm on 10 June 2017, Mr Hioshi MITSUI was walking along Vasey Avenue in Lalor. He was approached by Mr ALLAFTA and Mr RASHID on the footpath. Both men confronted Mr MITSUI and demanded “get out your phone”.[12] The men continued to advance on Mr MITSUI, demanding his phone.
[12] Statement of Hiroshi Mitsui, HUB pg. 75
27.Mr MITSUI refused to hand over his possessions and became involved in a physical altercation with Mr ALLAFTA and Mr RASHID. (Charge 7 (RASHID): Attempted Robbery) During this altercation, Mr MITSUI was punched in the face and kicked in the leg. He also was struck to the left elbow with a knife, causing a small laceration.[13] After feeling the strike to his elbow, Mr MITSUI observed Mr ALLAFTA to be carrying a knife in his right hand (Charge 6 (ALLAFTA): Attempted Armed Robbery).
[13] Photographs of MITSUI Injuries, HUB pg. 217.
28.Mr MITSUI fell to the ground and the two offenders ran to a waiting car and drove off.
15 June 2017
29.About 4.10pm on 15 June 2017, Mr ALLAFTA drove Mr GHANNOUM’s red Holden Commodore to the Coles Express Service Station in Thomastown. He filed up the vehicle with 41.97 litres of petrol and then drove off without paying the $63.76 owing for the petrol.[14] (Charge 8 (ALLAFTA): Theft)
[14] CCTV Footage, HUB exhibit 15; Notes of SC Robert HILLS
17 June 2017
30.About 1.30pm on 17 June 2017, Mr GHANNOUM drove his red Holden Commodore to the Coles Express Service Station in Thomastown. He filed up the vehicle with 39.76 litres of petrol and then drove off without paying the $60.00 owing for the petrol.[15] (Charge 9 (GHANNOUM): Theft)
[15] CCTV Footage, HUB Exhibit 16; Notes of SC Robert HILLS
20 June 2017
31.About 6.00pm on 20 June 2017, Mr Stephen PHILLPS was walking along French Street in Lalor. Mr PHILLPS was wearing headphones and watching a video on his mobile phone. He observed a red Holden Commodore parked on the footpath. [16] When he was about 10 metres when he felt a tap on the shoulder. He turned around and saw Mr ALLAFTA and Mr RASHID standing about 30 centimetres from him.[17]
[16] Statement of Stephen PHILLIPS, HUB, pg. 85
[17] Statement of Stephen PHILLIPS, HUB, pg. 86
32.One of the offenders was holding a small axe about chest height. He demanded Mr PHILLIPS hand over his mobile phone. Mr PHILLIPS handover his phone to the offender with the axe and his wallet to the other offender.[18] (Charge 10 (ALLAFTA, GHANNOUM, RASHID): Armed Robbery)
[18] Statement of Stephen PHILLIPS, HUB, pg. 878
33.Mr GHANNOUM then drove up alongside where the men were standing. Mr ALLAFTA and Mr RASHID got into the car and the three offenders drove off.
34.About X on 20 June 2017, Mr ALLAFTA and Mr GHANNOUM entered the Darebin Milkbar. Mr GHANNOUM attempted to make a purchase valued at $64.00 using Mr PHILLIPS’ card. As the card had already been cancelled, the transaction was declined. (Charge 11 (GHANNOUM & ALLAFTA): Attempt to Obtain Property by Deception)
22 June 2017
35.About 2.00pm on 22 June 2017, Police commenced targeted surveillance on GHANNOUM’s red Holden Commodore.[19]
[19] Statement of SO051, HUB, 191C
36.About 5.04pm, GHANNOUM and ALLAFTA attended the ‘Bargain Busters’ store in Lalor[20] and purchased two green and yellow face masks.[21]
[20] Statement of SO051, HUB, pg. 191E
[21] Statement of Lin Cen, HUB, pg. 95; Photograph 1, HUB, pg. 349
37.About 5.16pm, Fahmi JEBAR was walking from the train station along Newton Crescent in Lalor. He heard a car exhaust and then GHANNOUM’s red Holden Sedan pulled up next to him. ALLAFTA got out of the vehicle wearing a black mask.[22] He grabbed Mr JEBAR by the shoulder and demanded his phone three times. On the third time, Mr JEBAR observed that ALLAFTA was holding a knife to his stomach.[23] In fear, Mr JEBAR got his phone out of his pocket and attempted to hand it to ALLAFTA. (Charge 12 (GHANNOUM & ALLAFTA): Attempted Armed Robbery) ALLAFTA then laughed and told him it was a prank before quickly getting back into the car. GHANNOUM also called out from the driver’s seat that it was a prank.[24]
[22] Statement of Fahmi Gebar, HUB, pg. 96
[23] Statement of Fahmi Gebar, HUB, pg. 97
[24] Statement of Fahmi Gebar, HUB, pg. 97
38.About 6.36pm, Police observed that RASHID was now travelling with GHANNOUM and ALLAFTA in the red Holden. They were observed in the vicinity of the Lalor train station.
39.About 6.40pm, Mr John BOUKALIS was walking down Vasey Avenue in Lalor.[25] He was approached by ALLAFTA and RASHID. One of the offenders was holding a knife in his right hand. He demanded that Mr BOUKALIS hand over his phone. In fear, Mr BOUKALIS handed over his iPhone 6 to the offender.[26] (Charge 13 (ALLAFTA, GHANNOUM & RASHID): Armed Robbery) The offender then demanded his passcode, which Mr BOUKALIS told him. The other offender demanded money from Mr BOUKALIS, however he didn’t have any. The offenders checked that the passcode worked, before telling Mr BOUKALIS to turn around and walk the other way.[27] RASHID and ALLAFTA then got back into GHANNOUM’s red Holden and drove away.
[25] Statement of John Boukalis, HUB, pg. 106
[26] Statement of John Boukalis, HUB, pg. 106
[27] Statement of John Boukalis, HUB, pg. 107.
Related Summary Charge
40.On 17 February 2017, GHANNOUM’s driver licence was suspended for a period of six months.[28] At all relevant times, his right to drive in Victoria was suspended. (Charge 26: Drive while suspended)
[28] Exhibit 49, HUB, pg. 359
Arrest and Interview
41.About 9.50pm on 22 June 2017, all three offenders were arrested at the Coles Express Service Station in Thomastown. A search was conducted of the red Holden and a receipt belonging to Mr PHILLIPS was located inside, along with gloves, masks and other property belonging to the offenders.
42.All three offenders were interviewed by Police.
43.GHANNOUM denied participation in any armed robberies, however admitted to attempting to use Mr PHILLIP’s stolen credit card (Charge 11).
44.ALLAFTA admitted to the offending.
45.RASHID made partial admissions to a number of the offences.
Hearing Date Chronology
Arrested 22 June 2017
Filing Hearing - 23 June 2017
Committal Mentions - 17 August 2017, 15 September 2017 & 15 November 2017
Committal - 29 January 2018 & 27 March 2018
Initial Directions Hearings - 4 April 2018 (ALLAFTA resolved), 17 May 2018 (GHANNOUM resolved), 7 June 2018 (RASHID resolved)
Maximum Penalties
Armed Robbery (Charges 1 4, 10, 13) – 25 years imprisonment
Attempted Armed Robbery (Charge 3, 6, 12) – 20 years imprisonment
Attempted Robbery (Charge 7) – 10 years imprisonment
Theft (Charge 8, 9) – 10 years imprisonment
Obtain Property by Deception (Charges 2, 5) – 10 years imprisonment
Attempt to Obtain Property by Deception (Charge 11) – 5 years imprisonment
Pre-Sentence Detention
The offenders have all been on remand since arrest. Mr ALLAFTA and Mr RASHID each have 461 days of pre-sentence detention up to and including 25 September 2018.
On 12 September 2017, Mr GHANNOUM was sentenced to 5 months imprisonment with 83 days pre-sentence detention declared. He therefore has 308 days of presentence detention available to him.
Victim Impact Statements
To be advised.
Criminal History
GHANNOUM and ALLAFTA have relevant prior convictions.
Forensic Sample Order
Forensic Samples Orders will be sought from each offender.
______________________________
PLEA PROSECUTOR