Director of Public Prosecutions v Allouche
[2014] VCC 871
•6 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-02009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IMRAN ALLOUCHE |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA: | 21 May 2014 | |
DATE OF SENTENCE: | 6 June 2014 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Allouche | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 871 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – conduct endangering serious injury
Legislation Cited: Crimes Act 1958; Sentencing Act 1991 (Vic)
Cases Cited:Arthars v R; Plater v R [2013] VSCA 258; R v Cockerell (2001) 126 A Crim R 444; R v Tiburcy (2006) A 444 Crim R 166.
Sentence: Convicted and sentenced to 12 months’ imprisonment, wholly suspended with a supervision period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Harris | Solicitor for Office of Public Prosecutions |
| For the Accused | Ms Z. Garde-Wilson | Garde-Wilson Lawyers |
HIS HONOUR:
1 Imran Allouche, you have pleaded guilty to the following offences:
(a)Charge 1, that you, at Meadow Heights, in the State of Victoria, on the 25th day of May 2008, without lawful excuse, recklessly engaged in conduct, namely, discharging a firearm at a residential dwelling that placed Rose Graham in danger of serious injury;
(b)Charge 2, that you, at Meadow Heights, in the said State, on the 25th day of May 2008, without lawful excuse, recklessly engaged in conduct, namely, discharging a firearm at a residential dwelling that placed George Perhuvin in danger of serious injury.
2 Both charges are contrary to s.23 of the Crimes Act 1958 and carry a maximum sentence of five years’ imprisonment.
Circumstances of the offending
3 It was the case for the Prosecution that at approximately 12.50am on 25 May 2008, twelve shots were fired at house at 4 Picola Court, Meadow Heights, Victoria. At that time, Rose Graham and her partner, George Perhuvin, were seated in the front lounge room of the house.
4 It was also the case for the Prosecution that Rose Graham’s son, Daniel Cleghorn, also known as “Woody”, lived at the house and owed drug debts to you, who in turn owed money to the convicted criminal, Bassam Hamzy, who at all material times was incarcerated at the Lithgow Correctional Centre.
5 It was alleged by the Prosecution that at least Omar Ajaj, Hamed Ajaj and Abdulgini Klink were present at the scene when Omar Ajaj and one other of the group shot at the residential house at 4 Picola Court, Meadow Heights, after which they all sped off in a white utility.
6 It was the Prosecution case that each of those people were part of a joint criminal enterprise to use firearms and shoot at the house in an act of intimidation and persuasion for the collection of drug debts.
7 The Prosecution tendered a document headed “Particulars Alleged Against Allouche” and I was advised by your Counsel that you agreed with the contents of such document. In particular, the Prosecution do not allege that you were present at the scene when twelve shots were fired, but rather, you were a party to the joint criminal enterprise to use firearms to shoot at the house.
8 The document tendered by the Prosecution makes reference to a number of intercepted telephone calls over the period from 23 May 2008 until 11.33pm on 24 May 2008. I will not refer in detail to such telephone intercepts, save that it was agreed that:
(a)You owed significant amounts of money to a “Khaled” and Bassam Hamzy for drugs that you had on-sold to people in Melbourne;
(b)You were in constant contact with Hamzy, who was keen to take over the collection of the debts owed in Melbourne after you told him that you were unsuccessful in collecting such debts, although having access to firearms;
(c)On 23 May 2008, you were made aware by Hamzy that the “boys” would come down to Melbourne to help collect the debts, and you cautioned that things should be done “slowly” and “my way” as you were familiar with how things worked in Melbourne;
(d)On 23 May 2008, you informed Hamzy that you had obtained firearms the night before and that you were in possession of six firearms that had cost $36,000;
(e)That at 7.14pm on 23 May 2008, you indicated that a drug debtor, “Daniel”, had pulled out a gun when he was approached at his house and that you told Hamzy that “Daniel”, or as he was known as, “Woody”, owed $45,000;
(f)At 8.07pm on 23 May 2008, you spoke to Hamzy, appearing upset and potentially crying, trying to explain that despite your efforts, your debtors had not paid you and you sought two days to try and sort the matter out. Hamzy makes it clear that he and “the boys” are going to take over the collection of the debts for you;
(g)At 7.26pm on 24 May 2008, you assented to the “smashing” and “breaking their toes” and for the boys were “gonna start”;
(h)At 7.53pm on 24 May 2008, you told Hamzy that you wanted to go to the house where Woody lived and Hamzy agreed to such course of action, cautioning you not to leave the car but to “make sure all the toys are good”. At that time, you confirmed with Hamzy that “Woody” would be at the home situated at 4 Picola Court, Meadow Heights;
(i)At 8.07pm on 24 May 2008, the plan to shoot at the house in Meadows Heights is firm and you are very much a part of the agreement when Hamzy explains “He already knows … he knows everything”;
(j)At 10.33pm on 24 May 2008, you agree with Hamzy that you are going to do it his way, and at 11.13pm on the same night ,you told Hamzy “I'll send the boys there now then”;
(k)At 11.21pm on 24 May 2008, you tell Hamzy that a guy is going to talk to “Woody” in a last ditch attempt to get paid but “If you want us to go there and shoot, we’ll go and shoot”. Hamzy indicates he wants to shoot but he would leave it to you, and after a short attempt by you to buy a little more time to find a more peaceful solution, Hamzy becomes frustrated and says “Brother, go and shoot”, to which you respond with “We go and shoot”.
(l)In the last call at 11.33pm prior to the shooting, you tell Hamzy that “We’ll just prepare the fuel, when I do the fuel, I will leave here. I will stay on my own”, Hamzy agrees that to be a good idea and tells you that you should send the boys and concentrate on other things.
9 It is the case of the Prosecution that you have participated in the joint criminal enterprise to shoot at the house at 4 Picola Court, Meadow Heights by:
(a)providing a number of firearms to the parties to the enterprise;
(b)organising ammunition for the firearms used;
(c)providing the address of 4 Picola Court, Meadow Heights, and other details, allowing the other parties to the agreement to attend;
(d)providing your address as a place to gather and arrange the impending shooting.
Your plea in mitigation
10 You Counsel, in support of your plea in mitigation, tendered the following documents:
·Exhibit A – Allouche chronology;
·Exhibit B – A judgment of his Honour Judge Smallwood delivered on 18 May 2012;
·Exhibit C – Allouche plea in mitigation;
·Exhibit D – Letters from Healthscope dated 10 February 2014 and 20 May 2014;
·Exhibit E – Reports from the psychiatrist, Mr P Newton, dated 2 November 2009 and 22 March 2012;
·Exhibit F – Chronology of Court proceedings;
·Exhibit G – Offer of Apprenticeship from Efficient Property Group;
·Exhibit V – Sentencing comments of Judge Mullaly delivered on 18 May 2011.
11 On the basis of such information and the further submissions made by your Counsel, I set out the following personal details, including your educational and vocational background.
12 You are presently thirty-two years of age and were twenty-six years of age at the time of offending. You were born in Lebanon and were the youngest of eighteen children born to Khalid (your father) and Sabika (your mother).
13 In 1989, your parents separated and your mother moved to Tripoli. In 1992, when you were about ten, you migrated to Australia with your mother and lived with one of your brothers, Mohammed, in Coburg. You attended the King Khalid School (having not yet learned English) but left school in 1997 at the age of about fifteen or sixteen to work in the family fabric business.
14 You have the following siblings in Australia: Mohammed (an engineer), Abdul (an accountant) and Hammad (a builder). In 2001, when you were about nineteen, the family bought your mother a house at 22 Preston Street, Fawkner and, thereafter, you and your mother lived there and you generally helped your mother, who had extremely limited English.
15 During the years after 2001 you had what you described as a newfound freedom, causing you to become involved in the drug world. In or about mid 2007, you began using methamphetamine or a drug more commonly referred to as “ice”. By early 2008, you were severely addicted to such drug.
16 You were contacted by Bassam Hamzy, and after that conversation, it was agreed that you would be purchasing from him a very significant amount of “ice”.
17 During the early months of 2008 when addicted to “ice”, the following events occurred:
(a)In or about March 2008, you were involved in an affray for which you subsequently received two months’ imprisonment;
(b)On 14 April 2008, you were intercepted by police who found “ice” in your car and also at your house;
(c)On 18 June 2008, you were involved in trafficking “ice” and for which you were ultimately sentenced by his Honour Judge Smallwood on 18 May 2012;
(d)On 27 June 2008, you were again intercepted in a drug-affected state at the Crown Casino and in possession of 111 grams of ice, after which your house was searched, which revealed another large amount of that drug. At that time, you were placed in custody, and on 1 July 2008, you were granted bail and were placed on the CISP Program but you were unable to complete it because of your drug use. On 18 August 2008, your house was again searched and ice was found and ultimately, you were bailed to the Raymond Hader Drug Rehabilitation Clinic, where you spent four weeks as an inpatient and were “detoxed”.
18 In June 2009, your mother had a stroke and was hospitalised for three months. On the material before me, I accept that you have blamed yourself for such stroke, because of the difficulties that you were having with the law and because of your drug addiction over a significant period of time.
19 On 4 November 2009, a plea was heard in the Melbourne Magistrates’ Court involving the offences on 14 April 2008, 27 June 2008 and 18 June 2008. It involved a significant number of offences. The Magistrate at that time sentenced you to nine months’ imprisonment, of which five months were suspended. On appeal before Judge Smallwood in March 2010, that sentence of nine months was wholly suspended.
20 When you appeared before Judge Smallwood by way of plea on 18 May 2012 in relation to the trafficking charge on 18 May 2008, he had the advantage of seeing how you had dealt with your life since March 2010 when he wholly suspended your then prison sentence.
21 Judge Smallwood noted that you had not breached the suspended sentence and, furthermore, you had dedicated yourself to looking after your mother.
22 You have not re‑offended since attending the Raymond Hader Drug Rehabilitation Clinic in August 2008.
23 I have had the advantage of hearing evidence form your sister-in-law, Layla Allouche, who was a mature and impressive witness. She is married to one of your brothers and is involved in Islamic welfare. She confirmed that after your drug rehabilitation at the Raymond Hader Drug Rehabilitation Clinic, you have not been involved with drugs and indeed, have been very much involved with the care of your mother following her stroke. Indeed, your sister-in-law described your mother as being emotionally dependent upon your activities, although you have been assisted by your wife, Rayam, who you married in March 2013.
24 I also note that you were interviewed by Mr Patrick Newton on 2 November 2009 and on 7 March 2012. When first interviewed, Mr Newton was of the opinion that you were in a period of sustained remission from a serious addiction to methamphetamine, although were suffering some psychological symptoms as a result of your previous drug dependence. Furthermore, at that time, Mr Newton was of the view that you had developed a good level of insight into the dangers of drug use and the seriousness of your previous offending which related to the use and sale of drugs.
25 When seen in 2012, Mr Newton further noted that you have maintained the positive change that was manifest in 2009, notwithstanding the combined stresses of both lengthy prosecutions and the demands for caring for your mother. He notes that there are “grounds for optimism about [your] prognosis”. In particular, Mr Newton states:
“Beyond this, Mr Allouche’s recovery appears robust. He has reportedly been abstinent for more than three years now and has very good insight into his substance use. He is not suffering any noteworthy psychological problems and his general attitudes towards society are now pro-social and conservative. To this extent, he has used the period of time for which his matters have remained outstanding to undertake much of the rehabilitation that I would generally recommend in a case such as his.”
26 Your Counsel submits that the following matters are particularly relevant in mitigation of any sentence:
(a)Your early plea of guilty to the subject offending;
(b)The remorse that you express, not only in relation to this offending but for the offending which you were involved in during the time that you were addicted to methamphetamine;
(c)The delay from the offending to being charged on 27 February 2012 and the overall delay from the offending to this date over which time there has been demonstrated rehabilitation;
(d)Your marriage in 2012 and the prospects of returning to appropriate employment. I was referred to a letter from Moe Allouche of Efficient Property Group dated 20 May 2014 confirming that you had approached him in late 2013 regarding your ambition to obtain a plumbing apprenticeship under his supervision. Moe Allouche confirms that he is happy to offer a position within his company pending the outcome of the present Court hearing;
(e)The stroke suffered by your mother in 2009. Your mother continues to reside with you and you are her full-time carer, with the assistance of your wife. Essentially, you have been the youngest child in a large family and it has been your role to care for your aged, ill mother. In this, I was referred to the report of Dr Michael Merhi dated 20 May 2014, wherein he describes your mother, Sabika Allouche, to be suffering permanent residual symptoms since her major stroke in 2009. In particular, she suffers from poor, unbalanced gait, generalised weakness, dysarthria, eating difficulties, Type 2 Diabetes (with associated eye complications) cataracts, osteoporosis, widespread arthritis and a degree of Alzheimer’s disease. Dr Merhi states, in part:
“She is very frail and needs frequent assistance and constant supervision. Imran has been doing this to the best of his abilities and I admire the devotion and dedication which he has applied himself in such. This has helped improve the wellbeing of his mother significantly and as such, she has been able to stay at their home safely. … I cannot predict the outcome of this case but it is really important for his mother, Sdika, to stay in her current accommodation if possible. Her medical conditions are complex and she needs strict routine and familiarity, I would be very worried that if she was forced to leave, the move in itself would be very stressful but more detrimental, it would impact very negatively on her physical and mental health. Imran has been a positive influence on his mother and this has made him a more better and decent person. He has improved all aspects of his life since 2009 … he is aware of his past actions but is genuinely remorseful and regrets his actions … .”
27 Your Counsel also submits that in relation to the immediate circumstances surrounding the subject offending, you initially resisted and diverted Hamzy from his stated intentions but ultimately succumbed to his direction and assented to the “drive-by shooting”. He stresses that it was not your “idea”, you did not attend at the premises, and clearly was not one of the shooters at the house.
Conclusion
28 As I have pointed out in the sentencing remarks involving the sentences of Hamed Ajaj and Abdulgini Klink, who were also part of the joint criminal enterprise to use firearms to shoot at the house on 25 May 2008, any crime which involves the use of guns in the community must be strongly denunciated. In particular, the community will not tolerate and should be protected against so-called “drive-by shootings”. The subject offence is a flagrant example of the illegal use of firearms to intimidate people who are otherwise doing no more than relaxing in the lounge room of their private residence.
29 I consider that the relevant sentencing considerations for this crime include a combination of just punishment, deterrence – that is, deterrence to you personally as well as to others who might be minded or tempted to act as you did on this night. However, in your circumstances, I find consideration of personal deterrence is not such a significant factor, given that you were severely addicted to methamphetamine at the time of committing these offences and that since then, to your credit, you have overcome such drug addiction which has been the case for the last five years or so. However, it continues to be important that others who might be minded or temped to act as you did on this night, should be strongly deterred.
30 In particular, the sentence should also reflect disapproval of this type of crime involving, as it did, the indiscriminate use of firearms and the firing of shots at a house. I do accept that you were not one of the shooters nor even present at the time of the actual shooting, and further, I accept that, essentially, you were forced to the position by Bassam Hamzy through the force of his personality, fear or for whatever reason. I do consider the following matters to be relevant mitigating circumstances:
(a)That at the time of the offending you had a severe addiction to methamphetamine which seemingly you have overcome and have been drug-free for the last five years or so. Furthermore, you have shown positive signs of rehabilitation by becoming married, becoming more involved with your family and seeking to undertake a plumbing apprenticeship. Since 2008, there has been no recorded offending and this all bodes well for the future.
(b)You pleaded guilty at a very early time and indeed, I accept have genuine remorse for not only the subject offending but for the drug-affected activities you were involved in leading up to the end of 2008.
(c)Although a part of the joint criminal enterprise, I accept that it was not your “idea” and indeed, you suggested to Hamzy on a couple of occasions that alternative methods should be applied to obtaining the drug debt, rather than resorting to the use of guns.
(d)I also consider that the period of delay from the commission of the offence to when charges were laid on 27 February 2012 is lengthy. Although it was suggested by the Prosecution that New South Wales authorities did not become aware of the transcripts surrounding the subject offending until early 2009 (which was disputed by your Counsel), I still consider that the period of delay from any point of view was lengthy.
I refer to Arthars v R; Plater v R [2013] VSCA 258, wherein the Court of Appeal set out the basis for the justification for taking “delay” into account as a mitigating factor. In essence, the two considerations are of rehabilitation and fairness.
The Court of Appeal referred to the comments of Chernov JA in R v Cockerell (2001) 126 A Crim R 444, which was subsequently affirmed in R v Tiburcy (2006) A Crim R 166. Chernov JA states:
“First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her…”
I consider the issues of the process of rehabilitation and fairness are both relevant to your circumstances. As I stated, I consider that you have entered into a process of rehabilitation which has been successful. Furthermore, as a matter of fairness, you have attempted over the years to bring the present matter to a head without success.
(e)I also take the view, on the basis of the evidence from your sister-in-law, who I found to be a particularly impressive witness, and the report of Dr Merhi, that there is a very real possibility that if you were imprisoned that your mother’s health could be destroyed in time. I consider that such a situation does amount to exceptional circumstances in terms of hardship on your mother.
31 Overall, I consider that the prospects of your continuing rehabilitation are very good and the risk of your re-offending in the circumstances in which you now find yourself is low. I was referred to the sentence of his Honour Judge Smallwood delivered on 18 May 2012 and although I have approached the sentencing disposition from an independent point of view, I note that he also formed a favourable view of your future.
32 Accordingly, taking all these matters into account, I sentence you as follows:
(a)In relation to Charge 1, you are convicted and sentenced to a period of imprisonment of twelve (12) months;
(b)In relation to Charge 2, you are convicted and sentenced to a period of imprisonment of twelve (12) months to be served concurrently with the sentence relating to Charge 1;
(c)The effective sentence of 12 months imprisonment is to be wholly suspended pursuant to the then s.27(1) of the Sentencing Act 1991 with a supervision period of twelve (12) months;
(d)Save for your plea of guilty, I declare, pursuant to s.6AAA of the Sentencing Act 1991, I would have sentenced you to fifteen months’ imprisonment, of which nine months would have been suspended for a supervision period of twelve months.
33 It is necessary that I stress to you that the sentence of twelve months' imprisonment has been wholly suspended. What that means is that over the next twelve months, if you commit any other offence punishable by imprisonment, your suspended sentence of twelve months will be restored and you will have to serve that sentence any other sentence which you may incur as a result of any other new offending.
34 Mr Allouche, you have set yourself, I believe, on the right road to rehabilitation and overcome your terrible drug habit. Things are very positive for the future and it is a matter for you to continue on that course. No doubt your Counsel will give full details of what this Order involves.
35 MS GARDE-WILSON: As Your Honour pleases.
36 MS HARRIS: As Your Honour pleases.
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