Director of Public Prosecutions v Amr (Yusuf)

[2015] VCC 33

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01850

DIRECTOR OF PUBLIC PROSECUTIONS

v

YUSUF AMR

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	23 January 2015
DATE OF SENTENCE:	29 January 2015
CASE MAY BE CITED AS:	DPP v Amr (Yusuf)
MEDIUM NEUTRAL CITATION:	[2015] VCC 33

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:             Theft - dealing in property suspected of being the proceeds of crime

Legislation Cited:     Sentencing Act 1991

Cases Cited:

Sentence:3 months and 14 days’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Regan	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Mr J Saunders Ms N Valos	Valos Black & Associates

HIS HONOUR: 

1Mr Amr, you have pleaded guilty to one charge of theft and one transferred summary charge of dealing in property suspected of being the proceeds of crime. 

-   Theft carries a maximum penalty of ten years' imprisonment. 

-   Dealing in property suspected of being proceeds of crime carries a maximum penalty of two years' imprisonment. 

2You are now 21 years old.  You were 20 at the time of offending and you have a criminal history of prior offending - in fact, an extensive history for one so young about which I will go into more detail later. 

3The circumstances of your offending are as follows.

4The victim in this matter is Antonio (“Tony”) Russo.  The case involves events in the early hours of Friday 31 May 2013 associated with a flat in Cranbourne, then the address of Ms Alyce Shaw and her then two and a half-year-old daughter, her then boyfriend, Andrew Betchley, and another occupant named Shane Chapman.  Tony Russo would frequently call in to see Mr Betchley, who he had known at that stage for about four months.

5As at May 2013, Alyce Shaw and Mr Betchley had known you, Mr Amr, for just over a month or so, during which time Ms Shaw had accumulated a debt to you for $500.  Tony Russo met you a couple of times at the flat in April or May 2013. 

6During that same period, Tony Russo was expecting to receive a Crimes Compensation payout of $6,700, and he told various people about that.  At the end of May, Tony Russo had received and banked the cheque for $6,700. 

7In the week or so before receiving the cheque, Tony Russo told Ms Shaw that he would cover her $500 debt to you.  Mr Russo's understanding was that once banked, the cheque would take a couple of days to clear.  In the meantime, the agreed amount went up to $550.  Mr Russo wanted to withdraw that money at the bank at 9 am on Friday 31 May 2013, and give it to Ms Shaw at the flat in your presence.  On the other hand, you were very anxious to be paid the money and wanted it to occur late on the Thursday evening.  Likewise, apparently Ms Shaw was also expecting that Mr Russo would hand over the money late on Thursday evening, but she was not intending to be present, deciding to go and see a friend instead.

8

Shortly after 12 am on Friday 31 May, you arrived at the Cranbourne flat and insisted that Tony Russo go to a nearby ATM and withdraw the $550. 

Mr Russo did not want to go at that time and an argument developed. 

9You got hold of Mr Russo's wallet at one stage, went through it, removed his Westpac debit card and kept it.  Eventually however, Mr Russo agreed to go with you and two others to the nearby ATM. 

10After getting out of the car, you walked Mr Russo to the ATM.  After initially hesitating, he gave you his PIN.  Mr Russo had only ever agreed that you were to be given $550. 

11However without Mr Russo's agreement or knowledge, you keyed in the maximum amount able to be withdrawn, namely, $1,000.  You then took the money and also kept Mr Russo's Westpac debit card. 

12You therefore stole $450 from Tony Russo, being the balance between the withdrawn $1,000 and the agreed amount to be paid of $550.

13On 6 June 2013, you were arrested at your home in Springvale South.  An Apple iPad, 16GB, Serial No. DMQJW4UHF185 was found on your bed and $270 was found in your wallet. 

14The investigating member, Detective Senior Constable Paul Holland, formed a reasonable suspicion that the iPad and the $270 were proceeds of crime and subsequently laid such a charge, which is now the transferred summary charge, Charge 6. 

15An interview was conducted during which you said that you had a prior agreement with Tony Russo that he would cover a $500 debt owed to you by Alyce Shaw.  You admitted that you had taken and kept Mr Russo's Westpac debit card, and that you had withdrawn the $1,000.  You also admitted to keeping Mr Russo's Westpac debit card and that you had put it into an ATM at Chadstone several hours later and that the card had been “swallowed” by the ATM - Mr Russo having cancelled it by reporting it lost in the interim. 

16On Friday 10 May 2013, Ms Min Zhang of an address in Springvale left her house at 7.30 am that day and returned about 6 pm.  She then found that her house had been broken into and a number of items had been stolen.  One of the items stolen was a white Apple iPad, 16GB, Serial No.  DMQJW4UHF185.

17During your record of interview, you told police interviewers that the iPad had been given to you as a birthday present from your mate “Hussein Ozturk” in “mid-April”, later specifying the date as being “around 26 April”.  That assertion was untruthful because the iPad was stolen on 10 May 2013. 

18I now turn to your personal circumstances. 

19As I noted earlier, you are now aged 21 and you were 20 at the time of offending. 

20You already have a significant criminal history.  It commenced at the age of 15 when, for violence, driving and theft offences, you were given a 4-month good behaviour bond without conviction in the Frankston Children's Court.  There was an attached condition that you attend a Young Offender's Program.  You were before the Children's Court at Dandenong a year later for driving offences, for which you were again given a good behaviour bond, this time for 24 months.  This time you also had to complete a Traffic Offender's Program.  Less than a year later, you were back at that Court, aged 17, for violence offences, including recklessly causing injury, for which you received a 6-month Youth Supervision Order. 

21At the Melbourne Children's Court less than a year later, when you were just over 18, you were again released on a Youth Supervision Order, this time for 9 months, again for numerous violence and dishonesty offences, and this time drugs and weapons offending also.  You had to attend for counselling for anger management and drug and alcohol abuse. 

22Less than two months later you appeared at the Dandenong Magistrates' Court for drug offences and for dealing with property suspected of being proceeds of crime, for which you received your first prison term: 59 days in gaol. 

23On the same day you appeared again at the Dandenong Children's Court for breaching your Youth Supervision Order and for further violence, driving, dishonesty, drug and weapons offences. 

24Less than a year later, in September 2012, at the age of 19, you appeared again at the Dandenong Magistrates' Court for what was again violence and drug offending.  You were placed on a 12-month Community Correction Order, which included conditions of an Anger Management course and judicial monitoring, to be initially held some two months later.  You also had to perform 100 hours of community work.

25On the same day you were back in the Dandenong Children's Court for theft and intentionally destroying property, for which you were place on a good behaviour bond for a year.  I note that the current offending breaches both the good behaviour bond and the Community Correction Order.   

26

In October 2012 at the Dandenong Magistrates' Court, you were given

12 months’ detention in a Youth Training Centre for aggravated burglary, theft and drug offences. 

27In November 2012 at the same Court, you were given 6 months’ detention in a Youth Training Centre for various violence, drug and driving offences.  You were also breached on the Community Correction Order.

28Subsequent to the current offending for sentencing, you have been in custody since 23 May 2014 on consolidated charges including aggravated burglary, theft, theft of a motor vehicle and driving offences.  You were eligible for parole on 22 November 2014, but this has been deferred pending the outcome of this current matter.  The full term of the sentence which you are now serving expires on 21 September 2015. 

29Your parents came to Australia from Egypt in the 1980s and you attended school to Year 12.  You were subsequently accepted into a civil engineering course at Swinburne TAFE, but you never commenced it. 

30You have accepted that your parents, although restrictive, have been supportive and that you had a stable childhood. 

31You excelled at sport and have played Australian Rules football to a high standard, winning your league best and fairest and the club goal kicking. 

32Unfortunately you started drinking alcohol and taking cannabis in your early teens and commenced using amphetamines in about Year 11. 

33The pattern of your life since leaving school is sadly reflected in your history of offending set out above.  It is a dreadful account of a wasted talent.  There have been multiple occasions where the courts have treated you leniently, giving full expression to your youth and immaturity and providing opportunities for you to avoid re-offending.  These opportunities have been wasted.

34You became associated with other like-minded offenders.  You were shot in 2013, and this has resulted in symptoms of trauma.  This unfortunately is not an uncommon consequence of serious drug use and associated crime. 

35The offences for which you are now before this court are serious and are a repetition of similar offences of theft. 

36In mitigation I accept the matters urged on your behalf by your counsel, including:

oyour plea of guilty,

oyour youthfulness,

oyour long-standing drug addiction,

othe support you received from your family,

oyour susceptibility to post-traumatic stress disorder in a custodial environment,

oyour remaining prospects of rehabilitation, based upon your intelligence and capacity for maturity and insight, observed by Dr Cunningham, forensic psychologist,

oat least part restitution will be guaranteed to Mr Russo.

37The basic purposes for which a court may impose sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and the protection of the community.  In sentencing I must have regard to a range of matters, such as the seriousness of the offence or offences, your culpability for them, your personal circumstances and those of the victims.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible, offenders are rehabilitated and re-integrated into society. 

38In light of your history of past offending and the serious nature of the current offending, I am satisfied that the purpose or purposes for which a sentence is imposed cannot be achieved without a sentence of imprisonment.  I have moderated the term of that sentence to accommodate the matters I accept in mitigation and allowance for the time served in custody on other matters whilst you were on bail on these charges. 

39In the circumstances, I accept the submission that you should receive no further time in custody beyond the completion date of the sentence you are currently serving, and that some time should also remain for a period of parole on that sentence should that be considered appropriate by the Parole Board. 

40Mr Amr, could you please stand. 

41On Charge 1 of theft, you are convicted and sentenced to 3 months’ imprisonment. 

On the transferred summary charge of dealing in property suspected of being proceeds of crime, you are convicted and sentenced to 30 days’ imprisonment.

42Charge 1 is the base sentence.  I direct that 14 days of the sentence imposed on the transferred summary charge be served cumulatively on the sentence imposed on Charge 1. 

43The total effective sentence is 3 months and 14 days’ imprisonment.    

44There is no pre-sentence detention to declare as you are on bail for this matter.  You are in custody however, as I mentioned before, as you are undergoing a term of imprisonment for other offences and I have taken into account, in a general way, a portion of that time in reduction of your sentence. 

45The sentence imposed today starts today and is concurrent with the sentence you are currently serving. 

46Pursuant to s.6AAA of the Sentencing Act, 1991, but for your plea of guilty, the total effective sentence that would have been imposed on these offences is 12 months’ imprisonment with 6 months to be served before eligibility for parole.

47You may be seated again, Mr Amr. 

48At the plea hearing, the prosecution sought an order, which was not opposed, for the taking of a forensic sample, and I have made that order today for the reasons noted on the order, namely, that the seriousness of the circumstances of the offending warrants the order, your prior convictions are such as to warrant the making of the order, the order is not opposed and the granting of the order is in the public interest. 

49I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. 

50Do you understand that, Mr Amr?

51OFFENDER:  Yes I do. 

52HIS HONOUR:  Thank you. 

53At the plea hearing an order for the disposal of two knives seized by police was sought.  Again you have consented to the making of this order, which I have also made today. 

54A Restitution Order for the sum of $270 and a Compensation Order for the sum of $180 payable to Antonio Russo were also sought and were consented to and I have made those orders today. 

55Are there any other matters from either counsel? 

56COUNSEL:  No, Your Honour. 

57HIS HONOUR:  Thank you.

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