Director of Public Prosecutions v Amr

[2018] VCC 1707

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00912

DIRECTOR OF PUBLIC PROSECUTIONS

v

OMAR AMR

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 October 2018
CASE MAY BE CITED AS:	DPP v Amr
MEDIUM NEUTRAL CITATION:	[2018] VCC 1707

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	Mr N. Goodenough (Plea)	Office of Public Prosecutions
For the Accused	Mr D. Sala

HER HONOUR: 

1Omar Amr, you have pleaded guilty to a number of offences arising from events which occurred on 16 January of 2018.  On that day, Leading Senior Constable Desmond Viz was on patrol with Acting Sergeant Warren Frost.  They were travelling in a marked divisional van.

2At about 3.45 pm on Heatherton Road in Noble Park they noticed a blue Holden Commodore.  Registration of that vehicle was suspended.  You were the driver of that car, though your licence was cancelled and you were a disqualified driver.  Therefore you were driving whilst disqualified and driving an unregistered vehicle. 

3Officers Viz and Frost observed you drive into Memorial Drive.  They entered that street and saw the car parked in a car park.  They parked behind it and Officer Viz got out and approached the driver's side door.  As he was approaching, you got out of the car and faced towards him.  He noticed that your eyes widened, your teeth gritted and your fists were clenched.  A small black pouch you had been carrying dropped to the ground. 

4You rushed at Officer Viz with your fists clenched and raised.  He was not able to resist and was pushed backwards by you.  He fell to the ground and you landed on top of him.  You took hold of him. 

5Officer Frost came to assist and commenced striking you, both with a closed fist and elbow but with no effect.  You continued to hold, wrestle and fight with Officer Viz, pushing him backwards again.  Frost also fell to the ground in the melee. 

6Officer Viz pushed his emergency button and requested help.  Two passers-by in fact assisted the officers, however you again broke free, grabbing Officer Viz.  Officer Frost put his arm around your neck to pull you off Officer Viz.  You bit Officer Frost on the left forearm.  He deployed his mini-foam to your face and this had an effect allowing Viz to subdue you.  Those matters constitute Charges 1 and 2, assaulting emergency workers on duty.

7You were handcuffed but continued to struggle.  Officer Frost punched you in the face to subdue you.  Further police arrived and you were controlled.  Foam spray carried by Viz was damaged during the scuffle.  It leaked and caused a burning sensation to his back, groin and buttocks.  He also had abrasions to his elbows and knees, and general soreness to the muscles of his upper back and right forearm. 

8Officer Frost suffered a puncture wound from the bite, a swollen right hand, a sore right knee, and numerous minor abrasions to his arms and legs.  Due to the bite, he was placed on antibiotics and underwent blood tests, the result of which have fortunately been negative.  

9Frost then conducted a search of the blue Commodore and immediate surrounds.  He located in the black pouch dropped near the driver's door, three medium-sized snap lock bags containing methylamphetamine.  Police later located a smaller zip-up compartment within the pouch which also contained four smaller bags of methylamphetamine.  These facts are the basis for the trafficking charge. 

10The total weight of the methylamphetamine was 51.4 grams.  The items analysed had a purity of between 66 to 85 per cent.  Also located was a single Ecstasy pill being a small quantity.  In the boot of the car, police located a knife block and seven items of bed linen forming the basis of the negligently deal with proceeds of crime charge.  When you were asked for your name, you said it was Ahmed Loden which was a false name and this also is a related summary offence. 

11On 17 January 2018 you were interviewed by police and you made a no-comment record of interview. 

12Charges 1 and 2 are serious offences committed against Emergency workers going about their duty.  They are persons performing an important role within the community and who must be entitled to perform those difficult duties without fear of unprovoked assault. 

13The legislature in recent times has recognised the need for condign punishment where Emergency workers are assaulted or injured and has imposed mandatory minimum sentences for certain categories of such offences.  These charges do not fall into those categories.  However, that legislative change is a reflection of a number of matters.  Namely the legislature and the community's acknowledgment of the prevalence of such offences, the collective disapproval of them and the need to deter others from behaving in a manner which places Emergency workers at risk of injury.

14The maximum penalty for the two such offences before me are terms of five years' imprisonment on each charge.  The maximum penalty for trafficking is 15 years imprisonment, for possessing a drug one year imprisonment, for negligently dealing with proceeds of crime five years imprisonment, stating a false name five penalty units, for driving whilst disqualified 240 penalty units or imprisonment for two years in the case of a subsequent offence and for using an unregistered vehicle 50 penalty units. 

15Your history is as follows.  You are a 27 year old male born the eldest in a
sib-ship of three.  You have a brother aged 26 and a sister aged 18.  You are of Egyptian descent with your parents both born in Egypt and emigrating to Australia once married.  You were born here. 

16Unlike many who appear in this court, you had a very positive upbringing.  Your family have resided in the same home in Springvale since you were three years of age.  You have a very close relationship with your family.  Your parents are supportive of you and have been present in court throughout these proceedings. 

17You and your siblings were sent to private schools.  You attended an Islamic school, Minaret College, from Prep until Year 10.  Upon completion of Year 10, you requested your parents move you to a public school and you were transferred to Wheelers Hill Secondary College where you completed Years 11 and 12.  You scored an ATAR of 73 and had plans to undertake university studies in Commerce at Swinburne. 

18A few days after completing your VCE you were struck by a bus while riding your bicycle.  You sustained physical injury and an acquired brain injury.  This was a turning point in your life.  The result in short summary was that you underwent months of rehabilitation, you deferred commencing your degree, you became involved in substance-use as the result of chronic pain and of boredom and you then became involved in a sub-culture of drug use and criminal offending.

19I have read a number of expert reports which have been prepared at various times for court purposes.  They variously describe the physical and mental impact of the accident.  I have taken into account the contents of those reports. 

20You suffered physical injuries including fractured ribs, bulging discs and widespread lacerations to your face, hands, back, right hip and a scalp laceration.  It took over eight months for your physical recovery.  Your main ongoing issue has been back pain.  Rehabilitation has included physiotherapy, massage, occupational therapy and pharmacological treatment.  This has had limited affect and you are unable to sit or walk for long periods.  You wake due to pain and are limited in sporting activities.

21While in custody, you have been experiencing radiating pain and numbness down your left leg which at times has been severe enough for you to require crutches to walk.  You are on a waiting list to receive medical treatment in custody and it seems you have developed radiculopathy, that is longer term nerve-related effects of your injuries. 

22In relation to your head injury and resulting acquired brain injury, I note that it is variously described as mild, though with some significant impact on you psychologically.  Experienced Consultant Psychiatrist, Dr Lester Walton opined in 2010 that you are within a normal range of intelligence.  He stated:

"Mr Amr exhibits no readily observable cognitive deficit which is not inconsistent with the reasonably subtle deficits demonstrated with detailed psychological testing.  The background is of normal intelligence."

23You have no history of pre-existing mental health issues before your accident in 2008.  After sustaining the Acquired Brain Injury you reported symptoms of post-traumatic stress experiencing a change in mood and difficulties with attention and concentration.  

24At various times, you reported feeling depressed, worthless and that you only felt appreciated or useful to others when you had drugs.  Your mood fluctuates significantly and you find yourself irritable, anxious and agitated, becoming frustrated and restless easily.  You suffer from ongoing headaches, short term memory loss and some executive functioning deficits in terms of organisation and planning. 

25You concede that you did not engage in specialist services during your recovery when it would likely have made a significant difference to your prognosis.  You have been prescribed a range of medication by your GP for both your psychological and physical issues.  This has included Endep, Tramadol and Lyrica.  You have apparently not had any access to pain medication since entering prison but you remain on Endep for depression.

26You struggled with your injury and therefore you increasingly self-medicated with illicit substances to cope.  You began using cannabis around age 18 to 19 increasing to using up to 3 grams per day.  You were then introduced to methamphetamine and estimated you were using one and a half grams per day at your peak.  In the past 18 months you started using heroin. 

27The later reports I have read refer to your increasing depression and anxiety which no doubt have their genesis in the immediate aftermath of your accident.  However, these symptoms have been repeatedly compounded by your ongoing reliance on illicit substances. 

28By 2010 for example, according to Dr Walton, he states:

"There is a degree of continuing instability in relation to Mr Amr's mental state and that relates mainly to his serious outstanding criminal charges and the prospect of future incarceration.  However, as best I can determine, that component of his end-state neuro-psychiatric syndrome which is attributable to the transport accident, does seem to have stabilised." 

29He went on further to describe you as of normal intelligence.  He does say:

"I believe there is a psychological component to his difficulties, with concentration, which amounts to a mild impairment of thinking.  Perception remains within normal limits.  Mr Amr exhibits a level of anti-social conduct which warrants rating as a moderate impairment of judgment.  The combination of irritability, depressed mood and anxiety amounts to a moderate impairment of mood and there is moderate behaviour change. "

30By 2016, you were diagnosed with stimulant use disorder. 

31So, although I accept that by 2016 you were diagnosed with neuro-cognitive disorder with behavioural disturbance, I also note the referral, in later reports to your chronic drug-use exacerbating your symptoms, and herein lies the great difficulty for those assessing you, and for my sentencing task.  That is, as time has gone by, the major issue affecting your behaviour seems not to be your mild acquired brain injury, but to be your drug-use.  Although considerations of Verdins[1] were urged upon me, the nexus between your acquired brain injury and your offending is not clear and is complicated by your now-chronic drug use. 

[1]

32I do take into account the genesis of that drug use was the pain and depression at the situation which resulted from the accident.  However, in my view, at this stage, ten years on, it does not reduce your moral culpability in any significant way and nor should it have any real impact on reducing considerations of specific deterrence. 

33Over the last ten years, your medical situation has no doubt been recognised by courts who have dealt with you.  Despite repeatedly committing serious offences, you have been given every opportunity to rehabilitate yourself. 

34Over time, expert opinion has identified the real key to your rehabilitation lies in your abstinence from drug use.  You have been on notice for years now, about the damaging effect drug use has on your behaviour and on the likelihood you will reoffend.  

35In fact, I note in the most recent assessment by psychologist Carla Ferrari, that you said to her:

"He reported had he not been under the influence of substances, he would not have acted in such a manner." 

36That is a reference to the behaviour during the offending before me.  So, in other words, you are well aware of the relationship between your drug use and your offending behaviour. 

37Your criminal history is appalling.  It begins when you were an 18 year old.  You have multiple prior convictions for robbery, burglary, riot, theft, deceptions, drug use and drug trafficking and on my count, over 20 offences of driving whilst disqualified or whilst suspended and many episodes of either careless or driving in a manner dangerous. 

38Of note, in particular, you have prior offences of resist police, 2009; assault an officer, 2010; resist police 2011; hinder police 2012; fail to stop a vehicle on police request, 2014; dangerous driving while pursued by police, 2014; make a false report to police, 2014 and most significantly, in 2016, just shy of your 26th birthday, you were dealt with for two charges of assaulting Emergency workers on duty and four charges of resisting Emergency workers on duty.  On these charges you were sentenced as part of an aggregate term to 224 days imprisonment. 

39Add to that litany of serious offending, are breaches of almost every available sentencing disposition.  You breached a community-based order in 2012; an intensive corrections order in 2012; a community correction order in 2013; a suspended sentence in 2013; the same suspended sentence having been the subject of no further order was again breached in 2014; a drug treatment order in 2014; numerous findings of committing indictable offences whilst on bail and finally, a breach of parole by commission of an imprisonable offence in 2016. 

40Your history shows a complete lack of respect for any court order, for those in authority, and for the many efforts made to rehabilitate you from your drug use. 

41Contained in all of the reports are your repeated statements that you desire change and that you are committed to becoming drug-free.  There is very little tangible evidence of this. 

42Indeed, in April of this year, in what I consider to be quite a show of mercy, you were granted bail in the Supreme Court solely as a result of your proclaimed willingness to undertake treatment within a residential rehabilitation facility as an inpatient for 30 days and then followed by outpatient treatment.  You were said to openly acknowledge your problems with drug use and to express a desire for ongoing treatment.  Your family footed the $12,000 bill for that treatment.  You attended the residential program.  Once released, you recommenced drug-use and in December 2017, you committed further offences. 

43I do not have all the details of that offending, but the summary provided during the plea, indicates that you and a co-offender fled from a burning car and disposed of items in a front garden.  Those items turned out to be a hand-bag containing identification, and a purse belonging to a Ms Nguyen, a phone and a paper bag with over $12,000 cash, zip-lock bags and a container of methamphetamine, scales and a list of names and dollar amounts.  You were charged in May 2018 and your bail was revoked on 10 July 2018. 

44I pause to note, in light of your own serious addiction and your own acknowledgement of the ravages of the drug-use, I consider your offence of trafficking methamphetamine which is before me, to demonstrate your high moral culpability.  Further, that the amount of methamphetamine was at the higher end for this type of charge. 

45Despite your protestations to Ms Ferrari last month, that your recent inpatient rehabilitation when you were on bail had led to a ‘stark realisation of the need to make changes and accept support’, your behaviour, even after that period demonstrates a lack of willingness to engage in your own future.

46I disagree with her assessment that you are a moderate risk of reoffending.  I am very sceptical of your comments to her that you have a new-found motivation and desire to reform yourself which you attribute to that two-month rehabilitation period.  That is at odds with your reoffending. 

47In light of the circumstances I have outlined and your criminal history generally, as well as the circumstances of that reoffending after being given bail, your prospects of rehabilitation, in my view, are poor. 

48It is apparent from the numerous reports, that despite your accident and head injury, you still have a level of intelligence and cognitive capacity.  That is, despite your mild acquired brain injury, you have the capacity to live a productive life. 

49Indeed, Ms Ferrari, assessing you last month said:

"He appeared to have full cognitive capacity.  It does not appear his intelligence was impacted as a result of the accident.  He displayed above-average intelligence."

50I note you worked in either 2009 or 2011 in a call centre for nine months.  That gave you a sense of purpose and you stated you were working towards a normal life.  You have also undertaken factory work in the past, you have undertaken courses in custody and have obtained a white card in construction, so you have capacity.

51I received a letter from you yesterday, wherein you stated that you want to have to answer to somebody and to have somebody guide you when you are released from custody.  You are now a 27 year old man.  Your accident is a decade ago, and despite the difficulties which I accept started from that sequence of events, the reports say your real issue is drug use.  So, the person who must guide you now is you.  You need to commit to treatment or your trajectory is clear.  Your future depends almost entirely on your own ability to withstand drug-use when you are released.

52Your counsel submitted that I could deal with these matters by way of a combined sentence of imprisonment and community correction order.  The prosecution submitted, and I agree, that the only available option is a sentence of imprisonment with a non-parole period. 

53If you could stand now Mr Amr please: 

54On Charge 1, you are convicted and sentenced to two years' imprisonment and that is the base sentence; 

55On Charge 2, you are convicted and sentenced to two years' imprisonment with six months to be cumulative upon the base; 

56On Charge 3, you are convicted and sentenced to two years' imprisonment with 12 months to be cumulative; 

57On Charge 4, you are convicted and sentenced to three months' imprisonment;

58On Charge 5, you are convicted and sentenced to 12 months' with two months' cumulative;

59On Charge 8, you are convicted and sentenced to six months' imprisonment;

60On Charge 7and Charge 9, you are convicted and fined an aggregate fine of $300 and I grant a stay of 1 month;

61On Charge 8, your driver's licence is cancelled and you are disqualified for a period of three years' and I don't have a - I am not sure Mr Sala, whether his licence has already been cancelled.  If not, I will make that order.

62MR SALA:  There will be no issue if Your Honour makes the order in the terms Your Honour's sought. 

63HER HONOUR:  All right.  So, the total effective sentence Mr Amr is three years' and nine months' imprisonment and I direct that you serve two years and four months' imprisonment before becoming eligible for parole.  The pre-sentence detention I declare as 192 days and in relation to s.6AAA, but for your plea of guilty, the sentence I would have imposed would have been an aggregate sentence of five years' imprisonment with a non-parole period of three years and three months. 

64Have a seat Mr Amr.  I am just checking the other orders and I propose to make the disposal order in the terms sought. 

65MR PROSECUTOR:  As Your Honour pleases. 

66MR SALA:  If it please the court. 

67HER HONOUR:  I think that was the only other ancillary order. 

68MR PROSECUTOR:  That's correct, Your Honour.

69HER HONOUR:  Thank you.  You can remove Mr Amr please.   I will leave the Bench.  Thanks. 

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