Director of Public Prosecutions v Allouch

[2016] VCC 861

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00621

DIRECTOR OF PUBLIC PROSECUTIONS

v

BILAL ALLOUCH

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 June 2016
CASE MAY BE CITED AS:	DPP v Allouch
MEDIUM NEUTRAL CITATION:	[2016] VCC 861

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Skepper
For the Accused	Mr J. McQuillan

HIS HONOUR:

1Bilal Allouch, you have pleaded guilty to an indictment charging you with four offences of theft.  You have admitted a criminal record which includes a number of court appearances, convictions for driving offences. The maximum term of imprisonment for each of the offences of theft is ten years but having regard to the fact that these offences are offences of a continuing criminal enterprise, the sentence is increased or doubled to ten years' imprisonment.

2The prosecution tendered and relied upon a summary of prosecution opening which is Exhibit A.  I am not going to read it again.  It sets out the circumstances in which you participated in a criminal enterprise, the object of which was to steal $338,959.46 from your victim.  In the event, a total of $330,000 was the subject of the offending conduct and as things transpired, you were able to obtain possession of, steal, a total of $294,646.14 of that $330,000.

3The circumstances did involve you in the use of bank accounts that you had set up.  It involved you attending bank branches in circumstances which were likely to expose you to CCTV footage and expose you to the prospect of identification.  Nevertheless this was a serious course of conduct aimed at your own personal enrichment and it was a genuine continuing criminal enterprise of the kind that is envisaged by the legislative amendments directed at increasing sentence for that kind of offending.

4Your counsel provided me with - I should say that I incorporate the summary of prosecution opening into these reasons in their entirety.  Your counsel provided me with an outline of plea submissions and I mark that Exhibit 1 and incorporate that into these reasons for sentence.

5#EXHIBIT 1 -    Outline of plea submissions

6He points out the fact that you have pleaded guilty and although it was a late plea,  you are entitled to the value of that plea.  It saves the community the cost of a trial and the witnesses the inconvenience of attending a trial and although late, you are entitled to a deduction in sentence for that plea of guilty.  It does also support the proposition that you have shown remorse for your conduct and I accept that you are now remorseful for your participation in this enterprise.

7That submission as to your remorse was further supported by reference to a statement that you provided to police and which you have signed, along with a jurat dated 11 April of this year in which you set out an account of how you came to be involved in this criminal enterprise and the manner in which the criminal enterprise unfolded.

8I indicated during the course of the plea hearing that I was not persuaded, on the balance of probabilities, to accept that as a true version of the events.  Nevertheless I note that it does identify persons specifically who were capable of being identified by police and it may be that there is some truth in some of the assertions made.  I am not persuaded that it is overall a truthful account.

9It is relied upon by your counsel on two bases.  One, that it is an expression of remorse.  I accept that it is to some extent an expression of remorse and supports the proposition that you are remorseful.  I am not persuaded that it amounts to cooperation with the authorities.  The prosecution indicated that it was not accepted that the account was a truthful account or at least that the informant had misgivings as to the truthfulness and accuracy of the account which you have given.

10So it cannot be said that it is likely to give rise to any prosecution of any other participant in this criminal enterprise and it is not of value to the prosecution.  So I am not persuaded that I should give you a discount in sentence for cooperation with the authorities as such although, as I say, it does tend to support the proposition that you are now remorseful for your conduct.

11You are 37 now.  You were born and raised in Lebanon and when you were 21 you met your wife in Lebanon and came to Australia and have lived with her in Australia since then.  You started work upon your arrival in Australia in 2001 at Cedar Meats, a meat processing factory in Footscray and have worked there on and off for a significant period of time until, as I understand it, you ceased work in May/June of 2014 because you were anxious to avoid your employer, knowing of the current charges. You were on Centrelink benefits up to the time of your incarceration since that time.

12You have three daughters aged 14, 12 and 7. You are anxious to return to your wife and family and to your work, confident apparently that you will be re-employed by Cedar Meats.  All of that is relevant to the prospects of your rehabilitation.  You have a criminal record, bad criminal record for driving offences and you are currently serving a term of imprisonment because you were in breach of a suspended sentence imposed for driving offences.

13You do not have a criminal record for dishonesty and this is the first offence of its kind in your criminal history.  There does not seem to me to be any good reason to doubt that your prospects of rehabilitation are good.  There is no reason why you should not put this behind you and lead an honest and decent life as a father and husband and I expect that that will occur.

14You are serving a term of imprisonment, as I say, presently as a result of your bad driving record and it seems on the face of it that an eight month term of imprisonment is richly deserved, having regard to your driving record.  However,  you do not have a record for offences of dishonesty and for that reason the sentence that I intend to impose upon you is not as high as it might have been had the situation been different.

15There is no doubt, as your counsel points out, that you took considerable risks in participating in this offence, at least risks of being caught or identified in the event that there was to be a criminal investigation which would seem to have been inevitable.  The offending was nevertheless bold and it carried with it the prospect of quite significant financial reward.

16It was committed as a result of greed rather than need.  You were clearly a major participant in the profits or the potential profits from the criminal enterprise and you played a substantial role in it.  It may well not have been your idea.  You may well not have been the person who was able to effect the transfer of the moneys but, you were a substantial participant in and a major participant in the potential profits of a substantial criminal enterprise.

17The offending occurred in late 2013, two and a half years ago and although you have had some driving offences, since then and you have had no further offending involving dishonesty and you have had the matter hanging over your head for that period of time. Certainly it might be said that you contributed to the delay in that you did not offer the plea that was ultimately accepted until a late stage, but I understand that these matters are the subject of negotiation and very often negotiated pleas do not come to fruition until quite late in the piece, almost on the door of the trial court.

18So I do take into account the delay and the effects that that will have had upon you during the intervening period and I reduce the sentence that I would otherwise impose accordingly.  I have sentenced your co-offender already and recognise that his role was significantly less than yours in this criminal enterprise. His offending conduct is marked by offences which carry a lower maximum term of imprisonment. I sentenced him to a community corrections order with a condition that he complete 150 hours of unpaid community work.

19I have to impose a sentence that pays regard to the principle of parity, that is a sentence that compares with the sentence imposed on your co-offender. Although, your role was very different from his in the criminal enterprise.  I also need to pay proper regard to the principle of totality, that is imposing a sentence that has regard to the sentence that you are presently serving and does not involve you being sentenced to a crushing sentence as a result of the sentence that I impose for these offences and I have endeavoured to do that in tailoring the sentence that I have in mind.

20Your counsel submitted that I should have regard to the Court of Appeal decision in the case of Boulton, Clements & Fitzgerald v The Queen which was handed down in late 2014 and that of course is a case well known in this court and the principles are well known and I have due regard to the principles set out in that case. I accept the submission of your counsel that a combined sentencing order in this case, that is a sentence of imprisonment combined with a community corrections order is an appropriate sentence.

21It is necessary for me to punish you adequately for this offending conduct which, as I say, is serious.  It is necessary for me to denounce the criminal conduct to deter you from further conduct of this kind although I accept that this is your first offence of its kind and also, and perhaps most significantly, to impose a sentence that has the capacity to deter others from engaging in conduct of this kind.

22I have endeavoured to balance of all of that against the need to promote your rehabilitation and I have sought to tailor the sentence accordingly.  I am required to sentence you as a continuing criminal enterprise offender and that fact will be noted in the records of the court.

23I am now ready to impose sentence upon you.  Would you please stand.  Bilal Allouch, in respect of each of the four charges of theft to which you have pleaded guilty, I convict you and sentence you to an aggregate sentence of 14 months' imprisonment.  That sentence will be cumulative upon the sentence presently being served, making a total effective sentence of 22 months.  I note that five days of pre-sentence detention are to be declared as time served on this sentence and deducted administratively from the time you will actually have to serve.

24I further note for the sake of avoidance of doubt that 55 days' presentence detention has already been attributed to the sentence of eight months that was imposed in May of this year and that was ordered to be deducted by the Magistrates' Court that imposed the sentence.

25I have declined to fix a non-parole period for the 14 month term of imprisonment that I have ordered you to serve for these matters on the basis of the serious nature of the offending conduct and the need to tailor the sentence to accommodate what seems to me to be an appropriate course, that is to combine a sentence of imprisonment involving actual incarceration with a community corrections order which includes a punitive element.

26It did not seem to me, having regard to the submissions made on your behalf, that it was necessary to include rehabilitative measures in the community corrections order that I have in mind but rather to balance the punitive elements of the sentence between the term of imprisonment and the community corrections order and for that reason I propose to order that you be the subject of a community corrections order requiring you to perform 150 hours of unpaid community work during the 12 month period which will commence at the conclusion of the sentence that I have imposed upon you.

27Now, you will understand what a community corrections order is because you have been placed on one in the past and it will require you to comply with the conditions of the order, you will have to turn up for appointments, you will have to complete the 150 hours in the time that I have allotted, in other words 12 months.  I do not intend to include any further conditions beyond the core conditions of the order but if you fail to comply with the order, you are up for up to three months' imprisonment potentially for failing to comply with the order, in other words contravening the order.  If you commit another offence punishable by imprisonment during the period that the order is in force, then you will be up for punishment for that or that offending conduct plus you can be brought back to this court for re-sentencing in relation to this matter.

28I am sure that you are not going to put the court to that trouble and that you will get through this but nevertheless you will have to comply with those terms, otherwise the consequences are that you will leave the court with little or no alternative other than to increase the period of incarceration that I am imposing upon you.

29But for your pleas of guilty to this indictment, I would have sentenced you to three years six months' imprisonment with a non-parole period of two years and three months.  I also order that you be required to provide a forensic sample, that is a swab from the inside of the mouth.  You will be approached during your period of incarceration to provide that sample by an authorised officer and provided you comply with the request to provide a swab from the inside of your mouth, that is the end of the matter.  But if you fail or refuse to provide that sample in that way, then the officer will be authorised to take blood and may use reasonable force to do that.  I am sure you will not put them to that trouble.

30Now, I cannot impose the sentence that I have in mind which includes the community corrections order requiring 150 hours of unpaid community work unless you consent to that.  Do you consent to that?

31OFFENDER:  Yes.

32HIS HONOUR:  All right. That order will be drawn up and you will be asked to sign that in a moment so take a seat.  Reservoir Community Corrections Centre, is that ‑ ‑ ‑

33MR McQUILLAN:  Yes, I would have thought so, Your Honour.  Could I just approach?

34HIS HONOUR:  Yes, certainly.

35MR McQUILLAN:  He instructs me Broadmeadows, Your Honour.

36HIS HONOUR:  Broadmeadows, yes, all right.

37MR McQUILLAN:  Is there one at Broadmeadows, there would have to be.

38HIS HONOUR:  There is one at Broadmeadows, yes.  Are there any other orders that I need make?

39MS SKEPPER:  No, Your Honour.

40MR McQUILLAN:  No, sir.

41HIS HONOUR:  Mr McQuillan, would you accompany my associate to your client?

42MR McQUILLAN:  Yes.

43HIS HONOUR:  All right.  That order has been signed and is now in place, thank you.

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