Director of Public Prosecutions v Allouch
[2024] VCC 257
•7 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BILAL ALLOUCH |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 and 6 March 2024 |
DATE OF SENTENCE: | 7 March 2024 |
CASE MAY BE CITED AS: | DPP v Allouch |
MEDIUM NEUTRAL CITATION: | [2024] VCC 257 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Grierson | Office of Public Prosecutions |
For the Accused | Mr L. Barker | SLKQ Lawyers |
HIS HONOUR:
1Bilal Allouch, you have pleaded guilty to one charge of attempted armed robbery. That crime carries a maximum penalty of 20 years' imprisonment. You also pleaded guilty to one uplifted charge of committing an indictable offence whilst on bail. On that charge, I convict you and discharge you. You are now 44 years of age. You pleaded guilty in effect to a settled indictment and I accept within your limitations there is appropriate remorse. You must get the utilitarian benefit of that plea of guilty, saving the Court the cost and time and expense of a trial. You have pleaded guilty in the time of Worboyes and a significant and discernible discount must be given for that.
2There has now been a delay of some two and a half years since the offending occurred and I take that very much into account. The authorities are clear on the effects of delay and they can afford people the opportunity of rehabilitation. In your particular situation, you have in fact done two prison sentences since this offending itself actually occurred and it seems to me that there is a real chance that your rehabilitation is finally underway. I also take those two prison sentences, one of five months and one of seven months as I understand it, into account in a Renzella-type of way.
3You do have a significant number of prior convictions and I will refer to that again in a moment. Armed robbery is a serious crime per se and in the normal course of events cause for the application of general and specific deterrence as well as denunciation and appropriate punishment. In your particular situation, for very powerful reasons, I think that general and specific deterrence are to be significantly moderated and I think anybody hearing the plight of your life would not have the same feelings about denunciation that they might in other circumstances. However, it is a crime and there must be an appropriate punishment.
4Some years ago now, in the case of DPP v Tokava, the President of the Court of Appeal said this:
'A Sentencing Judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in the case of a serious offence, if in the long-term the community's interests will be best served by that course. This Court should seek to promote public understanding of the fact that - apart from the interest of the individual whom it sought to rehabilitate, an important interest in itself – there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.’
5I think those words are very pertinent to the sentencing matter that is before me at this time. A summary of the offending is that on 8 November 2021 at around about 8.30 at night, the victim here a Mr Moderana, was at the Jacana railway station. You were in the vicinity. You had a black Maglite torch in one hand and a jemmy bar in the other. You looked dishevelled. You came up towards the victim and said to him 'I want the torch on the bike helmet' and then said 'I want the light'. He, being as I understand he is a martial arts expert, said that he would not give it to you. You became agitated and you held the bar back as if you were about to swing it. I am not satisfied that you did swing it.
6You then tried to grab the odometer which was attached to the victim's bike. He pushed you away with two open palms and pushed you back onto the train tracks. You dropped the jemmy bar, he picked it up. You then apparently got back up on the platform and asked him for the jemmy bar back. He refused to give it to you. You had been initially seen near the skip bin and ultimately you left the scene. I think what you were doing there that night, I have no real idea, scavenging in one way or another. It is put that it was a very ineffectual attempted armed robbery and that is because of the nature and the common sense of the victim.
7It might have been a very different story if you had been about to do an armed robbery on somebody else. It is more fortune for you than otherwise, but the fact of the matter is the community do not like this sort of offending and there has to be an appropriate punishment given. There is no victim impact statement before me and I can easily in a general sense work on the basis that such experiences are very unpleasant, are very unnecessary when a person is standing alone at night at a railway station to be accosted in this way.
8Your background in very simple terms is that you were born in Lebanon, one of 14 children. You came from an impoverished family in effectually a war zone. You have had virtually no education; in Grade 2 I think you left school. I am assuming that you are almost totally illiterate and innumerate. Indeed, I understand from my tipstaff that you had great difficulty even negotiating how to get around in this County Court building. In any event, you came out to Australia in around 2000, following your partner. You and her were married for a significant period of time and have children.
9You have children who continue to support you, despite your difficulties, and indeed your daughter has been in Court with you the last two or three days endeavouring to look after you. I accept that you do have support in that respect. Unfortunately, that marriage has dissolved and has eventuated in orders and all sorts of things and I am not going down that path. It appears fairly clear that that marriage was destroyed by your use of ice which commenced around about 2015.
10It is clear from the materials - I do not know quite how this fits with Verdins, but it does not really matter much because Muldrock plays a significant part here - that you suffer from psychosis. The level of which that is attributable to substance abuse, I am not quite sure. It is clear that you hallucinate much more when you have been using ice than when you are not. It is pretty clear that when your mother died in around about 2018, serious mental health issues began and they have continued. In August of 2022, you were assessed as being mildly intellectually disabled. I am well aware of the spectrum and the word 'mild' is misleading in these circumstances.
11In any event, by that time, you in your life with the offending that I am not going to go through in detail, but drug use and driving and all sorts of things like that. By the time you were actually diagnosed, or assessed I think is probably the correct word, as being intellectually disabled, you had already been gaoled ten times, on separate occasions with no assistance whatsoever in this regard. Indeed, as I understand it, you have been gaoled twice more since that diagnosis was made. As already pointed out, this offending occurred prior to those gaol sentences, prior to that diagnosis, and calls very much into play the principles involved in Muldrock.
12There is clearly a link between Verdins and Muldrock and I am not going to go on some dissection of each and every little bit. It just seems to me clear that you have had an extremely difficult life, with extremely limited capacity, and no-one has ever really previously recognised exactly what the problem is. You have been on Community Correction Orders over the years, some of which you have succeeded with, some of which you have failed in. But most importantly, the situation at the present time is that having completed a gaol sentence of seven months, you then commenced a Community Correction Order in the Magistrates' Court.
13That Community Correction Order commenced in December of last year. I accept on the material before me that you have been abstinent from drugs since April of last year. Since December there is a very good report that has come from Corrections. You have been attending your appointments. You have got a form of employment with your brother. You are being looked after to an extent by other members of your family and I accept that there is a genuine attempt to rehabilitate. I suspect that this 12 months is probably the longest time you have ever been, other than in goal periods, without the use of drugs and it is to be hoped that you can continue to do it.
14I do not know that I need to say an awful lot more in this situation. You hear in this court about people who have, it is an annoying phrase, but, slipped through the cracks. You are clearly a case of that, and this is an opportunity which would very much benefit the community. I have had you assessed for a further Community Correction Order which will run concurrently with the Magistrates' Court one. It will be with conviction of course. It will be for two years. There is a Justice Plan in place which was created back in August 2022. One of the conditions of the CCO, and I know you understand what a CCO is because you have done about 15 of them, is that you comply with the Justice Plan as you are at the present time and that is very much to your credit.
15There will also be supervision, which again will run concurrently with the Magistrates' Court and any programs to assist with mental health obviously are important to you. Whether the psychosis that you suffer from from time to time is drug-induced or not, you need help no matter which way it goes. If those assistances could be put in place for you, whilst obviously the prospects of your rehabilitation must be guarded, I think there is a real chance that you at the age of 44 can turn it around and do it.
16As I say, Verdins clearly plays a part here. Muldrock clearly plays a part. Your background of impoverished and leaving school at a very early age, in my view gives rise to the general principles, not the specific, but the general principles in Bugmy. The risk of you re-offending, if you go back on the ice, has got to be high. Really it has come to a stage now where it is a matter for you whether you have a worthwhile life or you just spend the rest of it in gaol, but I think the Court's obliged in this situation, and I think the community would expect the Court, to give you this opportunity of finally getting your life sorted out and looking after those you are supposed to look after properly.
17So, taking all those matters into account, on the charge of attempted armed robbery, it will be a Community Correction Order for two years, with conviction. The conditions will be treatment, rehabilitation for mental health, supervision and compliance with the Justice Plan that is dated 22 August of 2022.
18All right, now if you agree to that, I will get you to sign it. All right, now, I know Mr Allouch I know you have been on these before, right. I am giving you another CCO, all right? It will run with the Magistrates' Court one.
19OFFENDER: Okay. Thank you.
20HIS HONOUR: Now you have done really over the last year with not using and all that. Since you have got out, you have done really, really well as well. Okay.
21OFFENDER: Thanks, Your Honour.
22HIS HONOUR: So it is a serious charge and you know that and there is a victim who is probably not too happy about you, but if you can keep this going and work with those people, it does give you a real chance at you know having a useful life, my friend. All right.
23OFFENDER: Yep.
24HIS HONOUR: I am sure that is what you really want and I am sure that is what your kids want for you too.
25OFFENDER: I understand.
26HIS HONOUR: All right. So if you agree to that – if you offend again you get brought back to be re-sentenced, okay?
27OFFENDER: Okay.
28HIS HONOUR: I doubt that I will be around if that happens, but most judges are going to put you in. If you breach this, they will stick you in, all right. Putting it in brutal terms.
29OFFENDER: Okay. Thanks, Your Honour.
30HIS HONOUR: We will get you to sign that for me if you would. All right. Good luck with it. Thanks Mr Barker. Thanks Ms Grierson.
31MR BARKER: Thank you, Your Honour.
32MS GRIERSON: Your Honour, just the matter of the disposal order.
33HIS HONOUR: Did that yesterday.
34MR BARKER: It was made already.
35MS GRIERSON: My apologies.
36HIS HONOUR: And we have also struck out the unlawful assault.
37MS GRIERSON: Yes, thank you, Your Honour.
38HIS HONOUR: All right. I doubt that he is entitled to get the jemmy bar back. I had no difficulty making that order.
39MR BARKER: No, Your Honour.
40MS GRIERSON: Thank you.
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