Director of Public Prosecutions v Amr
[2022] VCC 1381
•15 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02331
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OMAR AMR |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 June 2022 | |
DATE OF SENTENCE: | 15 August 2022 | |
CASE MAY BE CITED AS: | DPP v Amr | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1381 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Dangerous driving while pursued by police – Trafficking in a drug of dependence – Unlicensed driving – Deal with property suspected of being the proceeds of crime – Relatively serious example of offending – Extensive and relevant criminal history – Good prospects of rehabilitation – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 ss 18(1)(a), 195, 319AA; Drugs, Poisons and Controlled Substances Act 1981 s 71AC(1); Road Safety Act 1986 s 18(1)(a); Sentencing Act 1991 ss 6AAA, 18, 44, 89(3).
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of 168 days and following the period of imprisonment placed on a 2 year community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Dickens | The Office of Public Prosecutions |
| For the Accused | Mr L Barker | SLKQ Lawyers |
HIS HONOUR:
Introduction
1Omar Amr, you have pleaded guilty to:
(a) one charge of dangerous driving while pursued by police contrary to s 319AA of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 3 years imprisonment (Charge 1); and
(b) one charge of trafficking in a drug of dependence contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 15 years imprisonment (Charge 2).
2You have also pleaded guilty to the related summary offences of:
(a) unlicenced driving contrary to s 18(1)(a) of the Road Safety Act 1986, which carries a maximum penalty of 60 penalty units or imprisonment for a period not more than 6 months (Summary Charge 3); and
(b) dealing with property suspected of being proceeds of crime contrary to s 195 of the Crimes Act, which carries a maximum penalty of 2 years imprisonment (Summary Charge 11).
3You have also admitted your Criminal Record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5Between 11:00pm on 8 May 2021 and 10:30pm on 9 May 2021, a 2017 red Honda Civic valued at $25,000 was stolen by an unknown person from a Plenty Road, Bundoora address. It is not alleged that you were involved in the theft of this vehicle.
6At approximately 2:18am on Thursday 27 May 2021, you were driving the stolen red Honda Civic at approximately 160 km/h on the Dandenong-Hastings Road in Cranbourne West. The speed limit on that road is 100 km/h.
7The vehicle was observed by a Police Air Wing unit containing Senior Constable Gavin Devine.
8At approximately 2:27am, Leading Senior Constable Kyle Burton (‘LSC Burton’) of the police canine unit attempted to intercept you on the Westernport Highway, Cranbourne West by activating emergency lights and driving a short distance behind you. You were the sole occupant of the vehicle.
9You had been driving at 100km/h and increased your speed to 182km/h. The speed limit on that road is 100 km/h. You turned off the vehicle lights as you drove to try to get away from police and avoid being intercepted. The police vehicle continued to follow at a distance and you were also followed by Police Air Wing. It is these facts that relate to Charge 1 – Dangerous driving while pursued by police.
10You eventually parked the vehicle in Dellwood Drive, Hastings and were observed to walk into the carport of 14 Dellwood Drive. LSC Burton and his police dog arrived at the address minutes later. As LSC Burton got to within three metres of you, you ran and jumped over the fence into the address of 18 Villawood Drive. LSC Burton sent the police dog to pursue you as you jumped over fences to get away.
11As you were running away, you were observed by the police in the Air Wing to throw a black bag over the fence into the driveway of 20 Villawood Drive. You continued to flee and were bitten by the police dog on the ankle during your arrest. The arrest was captured on Body Worn Camera footage.
12A short time after your arrest, the bag which you had thrown, a black Nike satchel, was located by Constable James Nevill.
13The bag contained the following items:
(a) a wallet containing $730 cash (Summary Charge 11), a TAB receipt and an Officeworks Gift Card;
(b) cigarettes;
(c) two cigarette lighters;
(d) two syringes;
(e) a pink Apple iPhone 6 mobile phone;
(f) a black Samsung Galaxy S10 mobile phone;
(g) a zip-lock bag containing 54 grams of methylamphetamine; and
(h) a car key for a Honda Civic SA1R6M.
14Enquiries with VicRoads confirmed that you were not licensed to drive a motor vehicle (Summary Charge 3).
15The black Samsung Galaxy mobile found was signed into a Google account in your name and contained numerous messages indicative of drug trafficking. The amount of methylamphetamine in your possession is a traffickable quantity, later analysed to be 54.7 grams. It is these facts that relate to Charge 2 – traffick in a drug of dependence.
16The dog bite that you received during your arrest resulted in you requiring surgery for puncture wounds to the ankle. After your surgery on 28 May 2021 you were interviewed at the Frankston Police Station and remanded.
17In response to the allegations, you said amongst other things: that you were driving at about 130 or 140 km/h; that you turned your lights off and that you ran from the scene. You said that you did not think your driving was dangerous.
18You stated that you threw the satchel containing methylamphetamine over a fence on your arrest to hide the satchel from police. You initially stated that you were aware the satchel contained drugs. You stated that you did not handle the drugs. You later stated that you did not know the satchel contained drugs. You admitted to smoking two grams of methylamphetamine daily.
Nature and gravity of the offending
19Turning first to the conduct that gives rise to Charge 1. You were driving at 182km/h in a 100km/h zone, at night with your lights turned off in an effort to avoid being intercepted by police. On those facts your conduct can only be assessed as serious.
20Mr Barker who appeared on your behalf, accepted that while your conduct is serious, there are a number of matters that provide support for his submission that it is not in the worst category. He points to the fact that there is no evidence of other traffic on the roads where you were speeding and that the entirety of your driving was brief in that you were first observed by police at 2.18 am, and ultimately arrested at 2.41 am, with the most excessive speed being detected at 2.35am. He further relies on the fact that the conditions were good and that there was no interference with any other road user.
21It is implicit in the charge that the nature of the driving is as a result of being pursued by police, and as such people in those circumstances clearly have little regard for the safety of others on the road; the primary objective being to escape police. While I accept that features which would aggravate the circumstances are not present in this instance, in my view your driving still represents a relatively serious example of the offence of dangerous driving while being pursued by police.
22As to Charge 2 you were in possession of 54.7 grams of methylamphetamine which is many times over the traffickable quantity, which is 3 grams. Mr Barker submitted that as you had a very serious drug addiction at the time, a portion of the drugs in your possession was for your personal use. Further, it was submitted that the amount of methylamphetamine is consistent with the stock in trade of a ‘street level dealer’. While I accept those submissions, nonetheless you accept that the drug you possessed was for sale and in my view, in the circumstances, your offending is remains serious.
Personal circumstances
23You are currently 30 years of age and reside in Springvale South. You are the eldest of three siblings and your parents, both immigrants from Egypt, provided you with a happy and stable childhood.
24In 2008, you had just completed your VCE exams and were looking forward to studying a Bachelor of Commerce at Swinburne University when you were hit by a bus while riding a bicycle. You suffered numerous injuries, including an Acquired Brain Injury (‘ABI’). This ABI is permanent in nature and caused a significant change in your personality and behaviour.
25You report that you commenced using illicit drugs after your accident, starting with cannabis to manage the chronic pain from your injuries, before progressing to other substances such as methylamphetamine and GHB. Your criminal offending commenced in 2009 and you have a significant drug related prior criminal history which includes a number of terms of imprisonment.
26Psychologist Dr Joseph Poznanski prepared a psychological assessment report, dated 28 June 2021, which outlined the findings of a psychological assessment session with you on 24 June 2021. Dr Poznanski also prepared three updated reports, dated 24 August 2021, 28 October 2021 and 2 June 2022, which were all tendered on the plea. Over the three reports, Dr Poznanski offers comprehensive insight into your numerous psychological conditions and your positive prospects for rehabilitation.
27He is of the view that you suffer from Neurocognitive Disorder due to Traumatic Brain Injury with Behavioural Disturbance, severe Stimulant Use Disorder, Unspecified Depressive Disorder with mixed features and Chronic Post-Traumatic Stress Disorder (‘PTSD’). He identifies your ABI as the primary cause of your personality, behavioural and cognitive changes. Such changes include, among other things, a reduced capacity to assume responsibility for your actions, a lack of inhibition which may lead to engagement in aggressive behaviours, impulsivity and impaired ability to make appropriate decisions.
28Dr Poznanski is of the opinion that there is a strong link between your diagnoses and your offending. As your Neurocognitive Disorder is a permanently disabling condition, Dr Poznanski is of the view that even with appropriate social support and psychotherapeutic and pharmacological treatment, you are likely to remain vulnerable to re-engaging in addictive behaviour involving illicit drugs. Dr Poznanski also opines that a prison environment is likely to exacerbate the impact of your ABI and chronic PTSD, putting you at risk of developing more severe symptoms. Overall, Dr Poznanski remains ‘positively hopeful’ that your progress will continue, stressing the need for ongoing access to current services and appropriate interventions by clinicians
29Mr David Millar, senior counsellor and facilitator at AFTR Melbourne, a forensic drug rehabilitation service, notes in a treatment report tendered to the court dated 3 June 2022, that your struggles with scheduling and appointment keeping was a key barrier in your treatment in the two drug rehabilitation programs he facilitated with you as a condition of your bail. However, Mr Millar regards your treatment as ‘very successful’, especially in light of some recent life difficulties – such as your parents’ separation, your maternal grandmother’s cancer diagnosis and the recent miscarriage of your first child.
30I note you have demonstrated some insight into your behaviour and do not seek to use your ABI or other conditions as an excuse or reason for your offending. You stated to Dr Poznanski that you have a desire to change and do not want to bring your parents further grief and disappointment. Mr Barker submitted on your behalf that since being released on bail in November 2021 for this current matter, you have ‘totally immersed’ yourself in rehabilitation for your drug addiction and notes you have not reoffended during this seven month period, which he submits is significant given your criminal history.
31You have also been engaged with other drug treatment and support services including Ontrack Counselling Service where you were engaged in five sessions with Ms Karly Doyle, Forensic Alcohol and Other Drug Specialist, for intensive treatment and counselling.
32You prepared a letter for the court where you confirm that as a result of your counselling session with Dr Poznanski and Ms Doyle you have gained insight into the causes of your drug use and criminal behaviour. You confirm your commitment to change, articulating that you believe that at 30 years of age you are at a crossroad in your life. You confirm that you are committed to remaining drug free and accept that you need the ongoing support of the kind you have been receiving in order for you to achieve that goal . In the circumstances I accept that your letter is genuine and reflects the insight you have acquired in recent times.
33A reference was tendered from a long term friend and current partner, Catarina Rochecouste. Ms Rochecouste is supportive of you and you have spoken with her about starting a family. She confirms the real change she has observed in you and offers her ongoing support.
Sentencing considerations
34Mr Barker highlighted a number of matters to be taken into account in mitigation.
35First is your plea of guilty. You ran a contested committal and were refused bail. You were granted bail by the Supreme Court in November 2021 and ultimately resolved the matter before me at a sentence indication hearing on 6 June 2022. While your plea is not at the earliest opportunity, it still is of great utilitarian value, saving court time and expense.
36Your plea of guilty carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[1]
[1] Worboyes v The Queen [2021] VSCA 169 at [39].
37As to your prospects of rehabilitation, it is clear from the material presented that on this occasion, despite your criminal history, you are making a genuine effort to change, evidenced by your sustained engagement with counsellors and the fact that you have remained drug free and crime free throughout that process. Undoubtedly it will be difficult for you as you continue to grapple with the issues that led to your drug use, however in the circumstances I assess your prospects of rehabilitation as very good.
38Before you were granted bail, you spent 168 days on remand for this offending. All of that period was during the restrictions in prisons as a result of the COVID -19 pandemic. Personal visits, access to programs and numerous lockdowns were common through that time. I take these matters into account.
39General deterrence remains the prominent sentencing consideration. Trafficking in methylamphetamines causes enormous harm to those who use, their families and the community generally. As such a message must continue to be conveyed that those who choose to traffick drugs will be met with stern consequences.
40Specific deterrence is also relevant in this case. You have a long and extensive criminal history and while on this occasion you have demonstrated good prospects of rehabilitation, the sentence imposed must also be structured to deter you from reoffending.
41Mr Barker submitted that in all the circumstances a combination sentence pursuant to s 44 of the Sentencing Act 1991 (‘Sentencing Act’) with the time you have served as the prison component of the order, would be able to meet the relevant sentencing considerations in all the circumstances. Ms Dickens who appeared on behalf the Director of Public Prosecutions submitted that a combination sentence is within range, fairly submitting that the community is ultimately best served by you being able to continue your rehabilitation.
42I had you assessed for a community correction order. Following a brief assessment, it was recommended that an Extended Pre-Sentence Assessment be undertaken. The outcome of the extended assessment is that you were found to be suitable for a community correction order despite your poor performance on previous orders. You were also assessed by the Court’s Mental Health and Advice Response Service who recommended that ongoing assessment and treatment of your mental health should be made a condition of any community correction order imposed.
43While you have an extensive and relevant criminal history, in my view the continuity of your sustained rehabilitation should be maintained. As such as you have served some five and a half months, in my view a combination sentence that allows you to remain on the path you are on with supervision and assistance, is able to meet the relevant sentencing considerations in all the circumstances.
Sentence
44Mr Amr, please stand.
45Omar Amr, on Charge 1, dangerous driving while being pursued by police, you are convicted and sentenced to 3 months imprisonment. On Charge 2, trafficking in a drug of dependence, you are convicted and sentenced to 168 days imprisonment.
46On Summary Charge 3, unlicensed driving you are convicted and sentenced to 1 month imprisonment. On Summary Charge 11, dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 3 months imprisonment.
47All sentences imposed are concurrent and therefore the prison component of the sentence pursuant to s 44 of the Sentencing Act is 168 days. In addition to the prison component of the sentence you will be placed on a community correction order with conviction for a period of 2 years. While all community correction orders are punitive, the focus of the order is therapeutic. You will be required to undergo assessment and treatment for your drug use and your mental health concerns. You will also be required to undertake offence specific programs and you will be subject to supervision. As per the recommendation, I will also impose a Judicial Monitoring condition.
48Pursuant to s 18 of the Sentencing Act, I declare that 168 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
49Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 16 months with a non-parole period of 10 months.
50Pursuant to s 89(3) of the Sentencing Act, any licence you hold will be cancelled and you will be disqualified from obtaining a licence for a period of 12 months from today.