Director of Public Prosecutions v Allouch
[2018] VCC 645
•8 May 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-17-01907
Indictment No. H10499264
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMED ALLOUCH |
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| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 May 2018 |
| DATE OF SENTENCE: | 8 May 2018 |
| CASE MAY BE CITED AS: | DPP v Allouch |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 645 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – obtaining property by deception – attempt to obtain property by deception – possessing identification information to facilitate the commission of an indictable offence
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:Camara v R [2015] VSCA 20; DPP v Olar & Anor [2017] VCC 801; DPP v Jabbour [2017] VCC 1542
Sentence:Convicted and sentenced to a total effective sentence of 12 months’ imprisonment with a minimum non-parole period of 6 months. Section 6AAA declaration: total effective sentence of 18 months’ imprisonment with a non-parole period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P Pickering | John Cain Solicitor for Public Prosecutions |
| For the Accused | Ms D Lamovie | Victoria Legal Aid |
HIS HONOUR:
1Mohamed Allouch, you have pleaded guilty to two charges of possessing identification information to facilitate the commission of an indictable offence, contrary to s192C(1) of the Crimes Act 1958, which offence carries a maximum penalty of three years’ imprisonment.
2You have also pleaded guilty to three charges of obtaining property by deception, contrary to s81(1) of that Act, which offence carries a maximum penalty of ten years’ imprisonment, and four charges of attempting to obtain property by deception, contrary to s321M of the Crimes Act, which offence carries a maximum penalty of five years’ imprisonment.
3The circumstances of your offending were set out in considerable detail in the Summary of Prosecution Opening, which was tendered at the plea hearing as exhibit “A”.
4In short, between 16 May and 1 November 2016, in various places in Victoria, you withdrew cash and attempted to withdraw cash from automatic teller machines and purchase and attempted to purchase gift cards from various retailers using what was described in the summary as “clone cards”.
5The clone cards were created by the use of modified, or one might describe it as fake, EFTPOS machines installed into various taxi cabs. When a person paid their taxi fare using a credit card, the modified EFTPOS machine recorded the card and its PIN details without the person’s knowledge. The details of the card were then duplicated onto a blank card to create what was called a clone card, which could be used to withdraw funds from that person’s bank account or to purchase goods, which would later be charged to that person’s account.
6Attached to the indictment were Schedules A, B, C, D and E, which set out, in detail, each of those uses or attempted uses of clone cards by you, thirty-two instances in all. You were successful in withdrawing a total of $6,770 in cash and in purchasing a $100 gift card. You unsuccessfully attempted to withdraw a further $17,112 and to further purchase gift cards valued at $1,240.
7On 28 October 2016, you were arrested on unrelated matters and found to be in possession of an ANZ credit card and a NAB credit card, each of them in the name of a person other than yourself. Police investigations later revealed that these two cards had been issued by the respective banks based on falsified documents and that the identification details on each of those cards had been replaced as follows:
·The ANZ card had been encrypted with the card details of a Commonwealth Bank of Australia (CBA) credit card.
·The NAB card had been encrypted with the card details of a further CBA credit card.
8Between 18 and 24 June 2016, both of those CBA accounts were the subject of fraudulent withdrawals and attempted withdrawals by unidentified persons. I do not sentence you on the basis that you were involved in those fraudulent withdrawals or attempted withdrawals.
9By way of background, you are 45 years old. You currently reside with your second wife, with whom you have a son, aged five, and a daughter, aged four. In addition, you have five children aged between 24 and 14 from an earlier marriage.
10In 2011, you suffered injuries when you were stabbed in the back of your neck during an aggravated burglary at your home. Since that incident, you have suffered back and kidney problems.
11In 2012, you separated from your second wife for a time and commenced using methamphetamine (Ice). Your counsel submitted that this was partly the result of your separation and ensuing custody issues.
12Since that time, you have also suffered from depression and anxiety. I was informed by your counsel that in 2015, you attempted suicide.
13On 4 April 2017, you were assessed and recommended for treatment in the Court Integrated Services Program known as C-I-S-P or CISP.
14A report from your case manager dated 2 August 2017 was tendered. In it, he reported that you had commenced smoking up to two points of methamphetamine daily at 41 years of age. That is, in about 2014. Secondly, that you had failed to attend three drug and alcohol assessment appointments between 8 June 2016 and 3 July 2017, which was a date shortly before his report was written.
15Thirdly, that you had been diagnosed with depression by a Dr Naim, who later referred you to a Mr Povoni, a psychologist, and that you attended four appointments with him, but none since April 2017. Finally, that you had disclosed to him that your gambling habits had been problematic since around August 2015 and that you had since been referred to an organisation known as Gambler’s Help Northern.
16Your case manager states that your motivation and engagement is at times “court driven”. I interpret that as meaning that you attend for counselling at times because you believe this will reflect well on you in some future court proceedings. He considered that whilst you have utilised mental health and gambling supports, you had failed to participate in drug and alcohol treatment.
17Your counsel submitted that since that August 2017 report, you have accessed drug and alcohol counselling from Odyssey House. However, a report from Odyssey House dated 12 February 2018, tendered on your behalf, does not confirm this. It states that whilst you commenced complex counselling scheduled for twelve to fifteen sessions, you attended only three sessions, the last being on 25 September 2017. You were exited from that treatment program in December 2017 on grounds of non-attendance.
18In terms of prior convictions, your criminal record was tendered. You have been convicted twice for unlawful assault, once for intentionally causing injury. You have a large number of driving offences, principally for unlicensed driving. In 2004, you were sentenced to two months’ imprisonment, wholly suspended, for driving whilst your license was suspended. Between 2003 and 2015, you were convicted of failing to answer bail on no less than 13 occasions.
19In May 2013, you were sentenced to a 12-month community correction order, with a number of conditions attached. You were convicted of breaching that community correction order in August 2014 and a further community correction order was imposed at that time. In October 2015, you were convicted of breaching that community correction order and sentenced to one month’s imprisonment. I do note that you have no prior convictions for dishonesty offences.
20Your counsel has submitted that there were a number of matters going to mitigation of your sentence. Your involvement in the credit card skimming operation was submitted to be a minimal one. She pointed out that your instructions were that your co-accused, Mr Ali, who had been a friend from Lebanon who had lived with you and your wife for a period of around six months, had given you the clone cards to withdraw money for him. It was submitted that you did not obtain any significant personal advantage from your offending.
21I consider that this submission is inconsistent with your counsel’s submission that you had offended or that your offending had occurred in the context of drug addiction and gambling. I find that your offending was more likely motivated by the prospect of financial gain.
22I accept that there is no evidence linking you to the taxi drivers involved or others who are alleged to have been involved in the wider skimming operation. I accept that your role was largely that of what was described as a foot soldier, and that you had little or any knowledge of the technical aspects of the credit card skimming operation or the modification of the EFTPOS machines.
23Your counsel described the amount of cash withdrawals as a modest amount. I consider that sum is reasonably significant, and further note that you were unsuccessful in your attempts to withdraw further amounts totalling in excess of $17,000.
24I accept that you entered a plea of guilty some six months after your arrest. Although that is not an early plea, it does have utilitarian value, in that it negated the need for a trial and for witnesses to give evidence in it.
25I was told by your counsel that you have a stable family life. Through the CISP program, it was submitted that you were likely to have developed some insight into your problematic gambling and mental health issues.
26In assessing your prospects of rehabilitation, I note the following matters.
(a)That you had been released on bail following your arrest in February 2017 and apparently complied with the conditions of that bail after it was granted in April of that year.
(b)You remained on bail from April 2017 until the date of your plea hearing on 15 February of this year, 2018. Again, I note that there is no suggestion that you did not comply with bail conditions in that period.
(c)On 15 February 2018, I adjourned the matter further for sentence on 8 March 2018 and ordered that your bail be extended to that date.
(d)On 8 March 2018, you failed to appear and I ordered a warrant be issued for your arrest. I was advised that your warrant was executed on 11 April 2018, some two months after your failure to appear, and my understanding is that you were again released on bail to appear at this Court today, and that you have appeared today.
27I have taken into account your failure to participate in the opportunities provided to you in the CISP program relating to alcohol and drugs, and noting your failure to appear on 8 March 2018, and noting some 13 prior convictions for the same offence of failing to answer bail, I consider that your prospects of meaningful rehabilitation are guarded at best.
28The purposes for which a court may impose a sentence in respect of an offence include a number of matters, such as the denunciation of your offending conduct, to deter you and others in the community from committing such offences in the future, and, of course, the protection of the community.
29I am required to have regard to a number of matters, including the seriousness of your offences, your culpability for them, which I regard as high, and your personal circumstances. I have taken into account each of the matters set out in s5(2) of the Sentencing Act 1991, including the maximum sentences imposed by Parliament that I have previously referred to, the serious nature of your offending conduct, your personal circumstances, your pleas of guilty and your previous character.
30Your counsel submitted to me that the imposition of a community correction order would adequately address both punitive and rehabilitative purposes for which I am required to sentence you. Whilst I accepted your role in the offending was probably that of a foot soldier, I consider that the role was nevertheless an important one. The whole scheme would have been pointless unless persons like yourself had been prepared to actually use the clone cards to obtain cash or obtain other financial gain.
31Further, I do not accept the submission that you were simply complying with instructions given to you by your co-accused. I am in no doubt that you were well aware that your use of the clone cards was dishonest and illegal.
32I was referred by counsel to a number of cases in which persons had been sentenced for similar offending – Camara, Olar and Karaba and Jabbour – between 2015 and 2017.[1] They each involved offending of a similar nature, but, of course, with some differences. In Karaba and Camara, the monetary amounts obtained were far more than in your case, whereas Karaba was involved in the installation of the modified EFTPOS machines – perhaps I should say fake EFTPOS machines – and I have taken those differences into account.
[1]Camara v R [2015] VSCA 20; DPP v Olar & Karaba [2017] VCC 801; DPP v Jabbour [2017] VCC 1542
33At the plea hearing, I made arrangements for you to be assessed by Corrections Victoria for suitability for a community correction order. On 15 February 2018, I received a report from Corrections Victoria in which it was stated that they considered that you were suitable for such an order. Notwithstanding, I have reached a conclusion that the purposes for which I am to sentence you can only be satisfied by a sentence involving your immediate incarceration.
34In all the circumstances, I do not consider a community correction order is an adequate sentence for you for the following reasons:
·Firstly, your lack of genuine attempt to tackle your alcohol and drug problems, as evidenced by your failure to attend for scheduled counselling sessions. Those problems appear to be directly connected to your offending conduct;
·Secondly, your failure to answer bail on 8 March 2016, and the numerous other occasions at which you have failed to answer bail casts further doubt on your prospects for rehabilitation;
·Thirdly, that you had been sentenced to a community correction order in 2013 and to a further community correction order in 2014, both of which were contravened and cancelled for non-compliance and further offending;
·Finally, that the sentencing in other cases to which I have referred indicate that currently, sentencing practices for these types of offences generally involve significant periods of imprisonment.
35Although the offences for which you pleaded guilty are separate offences, I consider that they are offences founded on the same facts or form and are a series of offences of the same or similar character. Pursuant to s9(1) of the Sentencing Act, I shall impose upon you an aggregate sentence in relation to these offences.
36On Charges 1 to 9 inclusive, namely the two charges of possessing identification information to facilitate the commission of an indictable offence, contrary to s192C(1) of the Crimes Act, the three charges of obtaining property by deception, contrary to contrary to s81(1) of the Crimes Act and the four charges of attempting to obtain property by deception, contrary to s321M of the Crimes Act, you are convicted on each charge and sentenced on an aggregate basis to a term of imprisonment of twelve (12) months.
37I direct that you shall not be eligible for parole until you have served eight (8) months of that term.
38Now am I correct in assuming that there has been 42 days of pre-sentence detention?
39MR PICKERING: That’s correct, Your Honour.
40MS LAMOVIE: That’s correct, Your Honour.
41HIS HONOUR: Yes, thank you. I declare that you have served 42 days of pre-sentence detention and I direct that such a period be reckoned as served as part of this sentence, and record it in the records of this Court accordingly.
42Pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these charges, I would have sentenced you to a total effective sentence of 18 months’ imprisonment and directed that you not be eligible for parole until you had served twelve months of that term.
43Are there any other ancillary orders that are sought in this matter?
44MR PICKERING: A forensic sample order was sought, Your Honour. I believe that would have been e-filed, although it is some time ago, Your Honour. I believe it has been e-filed. My instructor is nodding and I would seek ‑ ‑ ‑
45HIS HONOUR: What does that mean? That it has not been made yet?
46MR PICKERING: It has not been made yet, Your Honour because Your Honour would normally do it at the sentencing rather than earlier on.
47HIS HONOUR: No. Just let me have a look at the loose documents here.
48MS LAMOVIE: And may I briefly approach on that point, just to clarify?
49HIS HONOUR: Your client?
50MS LAMOVIE: Yes.
51HIS HONOUR: Yes, certainly.
52MR PICKERING: Your Honour, just before ‑ ‑ ‑
53HIS HONOUR: Well just pause and wait until ‑ ‑ ‑
54MR PICKERING: Yes. I was just going to say, I just want to speak to my learned friend before you conclude the sentencing if I may.
55HIS HONOUR: All right. I will not do anything for the moment.
56MR PICKERING: May I just have a moment, Your Honour?
57HIS HONOUR: Yes, certainly.
58MR PICKERING: Yes, Your Honour. The matter I just wanted to raise is in terms of the non-parole period, I was just looking at s11 of the Sentencing Act.
59HIS HONOUR: Yes, just a moment.
60MR PICKERING: Sub-section 3.
61HIS HONOUR: Hang on. Section 11, sub-s.3?
62MR PICKERING: Yes. Section 11(3) of the Sentencing Act says that a non-parole period fixed under ss(1) or (2) must be at least six months less than the term of the sentence, and ss(1) or (2), two in this case. If a court sentences an offender to be imprisoned for a term of less than two years, but not less than one year, the court may fix a period during which the offender is eligible to be released on parole. So that would seem that the sentence ‑ ‑ ‑
63HIS HONOUR: Now just pause for a moment. So 11(1) does not apply?
64MR PICKERING: No, 11(2).
65HIS HONOUR: 11(2) is a head sentence of less than two years, but not less than one year.
66MR PICKERING: Yes.
67HIS HONOUR: “May” as opposed to “must” ‑ ‑ ‑
68MR PICKERING: Yes.
69HIS HONOUR: ‑ ‑ ‑ fix period during which the offender is not eligible for parole and then ss(3). A non-parole fixed under ss(1) must be at least six months less than the term of a sentence. Well what you are submitting is that my eight months is only four months less and unless I was to increase the term of the head sentence, which I do not intend to do, then that section requires me to declare that the eligibility for parole. I direct that you should not be eligible for parole until you have served six months of that term.
70MR PICKERING: That is correct, Your Honour.
71HIS HONOUR: That would then comply with the Act.
72MR PICKERING: It would.
73HIS HONOUR: And I believe although it was somewhat less than what I had initially indicated, compliance with the Act is obviously non-negotiable.
74MR PICKERING: Your Honour ‑ ‑ ‑
75HIS HONOUR: And I shall indicate that the head sentence will remain at
12 months and you shall not be eligible for parole until you have served six (6) months. You will be eligible from that time. Just bear with me for a moment. Yes. How many copies of this s464ZF order do you need?76MR PICKERING: Normally it is three, Your Honour. One goes to the Court file, one to my instructor and one to the defendant.
77HIS HONOUR: Yes, all right.
78MR PICKERING: And because it is an in custody one, Your Honour, there is a particular form. There are alternative forms between custody and not custody. So Your Honour needs the in custody one and normally Your Honour would give the warning to the prisoner that ‑ ‑ ‑
79HIS HONOUR: Yes, I appreciate that. Mr Norris, is this the document that was filed by the DPP? Well I presume you have filed the right form. I only have two copies of it for some reason. What is the difference between the two forms,
Mr Pickering?80MR PICKERING: The difference between the two forms. When they are filed, Your Honour, the second lot of forms which applies to the non-custodial, that direct you to attend at a police station within a certain period of time.
81HIS HONOUR: Yes, you have given a list of ‑ ‑ ‑
82MR PICKERING: That is the one you ‑ ‑ ‑
83HIS HONOUR: A list of police stations.
84MR PICKERING: That is the one you do not need.
85HIS HONOUR: Well I can ignore that.
86MR PICKERING: You can ignore that.
87HIS HONOUR: But where is the reference to those police stations in the actual order?
88MR PICKERING: Well if it is the order you should have, it will not refer to that because it is in custody.
89HIS HONOUR: Well where do I find that? There, I will give you one of these.
90MR PICKERING: Yes, that might be, Your Honour.
91HIS HONOUR: You can guide me to it.
92MR PICKERING: I will, Your Honour. Yes, that is the right one, Your Honour. Yes.
93HIS HONOUR: It is the correct one? Thank you. May I ask you, Ms Lamovie, the ‑ ‑ ‑
94MS LAMOVIE: There is no opposition to the order being made, Your Honour.
95HIS HONOUR: Can I tick the box that says the order is by consent?
96MS LAMOVIE: Yes.
97HIS HONOUR: Yes, I will make the order under s464ZF(2) of the Crimes Act. Mr Allouch, what that order requires you to do is to permit for a scraping of your mouth to obtain your DNA for police data records. The reason I make that order is it relates to the seriousness of the circumstances of your offending and the fact that the order is made by consent, notwithstanding that consent if you decline to allow a sample to be taken, then Victoria Police are authorised to use reasonable force to obtain a blood sample from you. Do you understand that?
98OFFENDER: I am ready to give that.
99HIS HONOUR: All right, thank you. There are those orders. Anything else,
Mr Pickering, that I should be turning my mind to?100MR PICKERING: No, Your Honour.
101MS LAMOVIE: Your Honour, there is just one ‑ ‑ ‑
102HIS HONOUR: Yes?
103MS LAMOVIE: ‑ ‑ ‑ custody management issue.
104HIS HONOUR: Yes.
105MS LAMOVIE: That the accused man states that he suffers from depression and he takes medication, but he is not able to say what the name of the medication is.
106HIS HONOUR: What is the medication for on his understanding?
107MS LAMOVIE: He says depression.
108HIS HONOUR: I will note that Mr Allouch - well he has been prescribed ‑ ‑ ‑
109MS LAMOVIE: Yes.
110HIS HONOUR: ‑ ‑ ‑ medication for depression.
111MS LAMOVIE: Yes.
112HIS HONOUR: Title unknown and he will require to ‑ ‑ ‑
113MS LAMOVIE: Be assessed, yes.
114HIS HONOUR: ‑ ‑ ‑ continue such medication whilst in custody.
115MS LAMOVIE: Yes, Your Honour.
116HIS HONOUR: Is that adequate?
117MS LAMOVIE: Yes. Thank you, Your Honour.
118HIS HONOUR: Yes, thank you. Anything else that my mind should be turning to?
119MR PICKERING: No, Your Honour.
120HIS HONOUR: Yes, thank you. Mr Allouch can be taken downstairs. Thank you. Yes, adjourn till half past 11.
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