Director of Public Prosecutions v Amro

[2017] VCC 1743

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01686

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL MOUHAMED AMRO

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 November 2017
CASE MAY BE CITED AS:	DPP v Amro
MEDIUM NEUTRAL CITATION:	[2017] VCC 1743

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 M. Fisher
For the Accused	Mr S. Tovey

Pages 1 - 13

 

 

HER HONOUR:

1Michael Mouhamed Amro, you have pleaded guilty before me to one charge of theft, and one charge of dangerous driving causing serious injury.  The maximum penalty for theft is 10 years' imprisonment, the maximum penalty for dangerous driving causing serious injury is 5 years' imprisonment.

2The facts underling your offending are as follows.  On 29 June 2014, a red Ferrari F430 Spider Coupe, worth $230,000 was delivered to your workplace, Universal Kustoms, to have a small crack in the rear bumper bar prepared.  It had just been subject to a complete service at Zagame Automotive in Richmond.

3The Ferrari was fitted with a tracking device, and after it was delivered to you, data from that device, indicates the car was driven from about 8.30 that evening, and at 8.50 that night, it revealed the Ferrari was being driven at 138 kilometres per hour.  This is not a matter, however, that concerns this court, insofar as the sentencing for this matter is concerned.

4At about 10.30 on the evening of 29 June, you went to your work shift with two friends, sisters Chantelle and Renee Falcone, and while they are looking at the Ferrari, asked them if they wanted to go for a spin.  Chantelle, it was decided, would go first and got into the passenger seat, and you drove the car away from the workshop.

5Your driving of the car, which was without permission, and not necessary for the work that you were undertaking, amounts to an unlawful use of the motor vehicle and underlies Charge 1 on the indictment, theft of a motor vehicle. 

6At about 10.40, you drove the car onto Wellington Road Clayton, towards the intersection of Blackburn Road, driving at about 80 kilometres per hour to the left of three west-bound lanes.  You suddenly accelerated heavily, which caused the rear wheels of the Ferrari to lose traction.  It slid sideways, out of control, and mounted a concrete and grass median strip, striking a tree.

7It then continued travelling west, where the driver's side front wheel collided with another tree, which penetrated the cabin of the Ferrari through the driver's seat.  You and Chantelle were trapped in the Ferrari, both with serious injuries.  Paramedics attended and treated you both, before being taken to the Alfred Hospital for further treatment.

8Chantelle Falcone suffered multiple serious injuries, including requiring extensive treatment and lengthy rehabilitation.  These included bleeding into her brain, a bruised lung, a fractured sternum, a fractured nose, deep lacerations to her forehead, lacerations to her knee, requiring surgical repair, and severe bruising to her left leg, and other parts of her body.

9Medical analysis of the injuries suffered by her, were to the effect that the multiple injuries to the head and brain were severe, and that without treatment and surgical interventions in the hospital, those multiple injuries could have deteriorated in the course of unconsciousness, possibly resulting in a critical condition, and death.

10You also suffered serious injuries in that accident.  You broke your tibia, femur, left ankle, wrist, and fractured some ribs as a result of the collision.

11The Ferrari was damaged beyond repair.  An inspection of the car at the scene, revealed a switch on the steering wheel had been activated, so the car was driven while in race mode.

12Witnesses observing the Ferrari and how it was driven, made observations including that it suddenly sped up dramatically, and then spun out of control, mounting the gutter.

13While at the hospital, you told a witness that you had taken the car for a drive and, "And didn't mean any of this to happen".  Asked why you did it, you said that the, Ferrari was one of your dream cars, and you just wanted to see how it went.

14On 17 September 2015, you took part in a formal record of interview, admitting to being the driver of the Ferrari, but being unable to actually remember the collision.  You told police you were familiar with driving many types of
high-powered vehicles, and were familiar with the handling and driving characteristics of the Ferrari.

15At the time of the collision, the road was dry, the weather was fine, traffic was light, and visibility was good, with overhead street lighting in operation.

16The record of interview took place as I said, on 17 September 2015.  You were not charged until 23 June 2016.

17At a committal mention on 21 September 2016, the matter was adjourned by defence counsel on your behalf.  On 28 September, a not guilty plea was entered, and the matter was committed for trial.  In the interim period in 2017, there was a change in solicitors.  At a mention on 12 July 2017, you entered a plea of guilty to the charges.

18I now turn to your personal circumstances.  You are 31, the youngest of three children, born to parents who emigrated to Melbourne from Lebanon, running small family businesses, such as milk bars, and fish and chip shops.

19You were educated at St Bede's Boys College in Mentone, gaining Year 12, and applying for university, but deciding instead to take up a panel beating apprenticeship which you completed.  You then worked for a firm, Triple X Boils, doing custom work for two years, and in 2009, opened your own panel beating business, Universal Kustom, which was very successful.  You developed a speciality in luxury cars.  You had two employees and at its height, were earning between 150,000 - 200,000 per year.

20Your mother, Senna Amro and your cousin Alan Amro, both gave evidence on the plea, to the effect that you were, in your business, incredibly passionate about it, often working up to 20 hours per day.  All of this changed dramatically and catastrophically for you, following this accident.

21As I said, you suffered serious injuries.  You had to go five weeks of rehabilitation, after which you were left with debilitating pain, and an inability to walk which has improved, but have a permanent inability to crouch, or to bend over, and you cannot run.  You have got problems with one arm, and you have not simply got the physical capacity to carry out the business that you did before.

22Ultimately, you sold your machinery to a rival firm, which then took over the lease of where you were operating your business from. 

23You are unemployed.  For some time, you moved in with your cousin Alan Amro following your rehabilitation, but now live alone in a house, owned by your parents who have returned to Lebanon, although your mother has come back to Australia on numerous occasions and for lengthy periods of time, in order to care for you.

24Medical material was received to the effect (from two GP's at the medical practice where you attend), that you continue to suffer pain.  You are depressed, you are prescribed anti-depressants, you take hefty doses of Endone, and you area also prescribed sleeping medication.

25Your social life has dwindled to nothing.  Your cousin Alan described you as a person who had been energetic and socially active, prior to this accident.  He said you now spend most of your time housebound, despairing and unable to envisage a future.

26Your mother gave evidence that whilst you and Chantelle Falcone were both hospitalised at the Alfred Hospital, you went to see her on numerous occasions, and apologised to her.  Both your mother and your cousin spoke of your deep remorse for the injuries that you caused to Ms Falcone.

27A victim impact statement was received from her; it is quite clear that the injuries she suffered have been devastating for her.  She continues to suffer pain, her studies have been interrupted.  She went through a great deal of surgical intervention, rehabilitation and generally speaking, has been left in a continuing difficult position, where her life too has been forever changed by the terrible accident that occurred on 29 June.

28The prosecution has admitted that I should deal with you by of a sentence of imprisonment, albeit it combined with a community corrections order, because of the objective gravity of your offending.  Certainly, this was serious offending, and this is not the first time that you have been in trouble with police.

29In 2010, you were dealt with by a Magistrates' Court for criminal damage, and making a threat to kill, which apparently related to a person who was allegedly having an affair with your father.  For that, you were placed on a three month suspended sentence.

30You had been engaged for four years, and your ex-fiancé broke up the relationship, which you found difficult to accept, and she eventually took out an intervention order against you.  This, you breached in 2014, when you visited her home, in order to see the formerly co-owned dog.

31You were again dealt with in relation to breach of an intervention order, on charges of stalking, and other charges which related to you ringing your
ex-fiancé on a constant basis, you wanting to revive the relationship, but thereby breaching the non-contact conditions, attaching to the intervention order.  You were placed on a community corrections order for 18 months in relation to that breach.

32There has been some subsequent offending.  In September 2016, you were dealt with by a Magistrates' Court for driving a car with a motor defect, and then on 7 January 2017, you lost your license for six months for exceeding the speed limit by 40 kilometres per hour.  This caused me an amount of concern, in light of the offending that had brought you here before this court.

33However, I understand the circumstances relating to that, were that you had been coaxed out of the reclusive life you habitually live now, by a friend for a day at St Kilda beach.  You were picked up by police at 11 pm, speeding along Beach Road, the cause of this being that your Endone, the effects of the very strong pain killer you had taken, had worn off, and you were speeding in order to get home.

34There is nothing particularly praise-worthy about that, but I do not regard that as you behaving in a cavalier fashion on the road, notwithstanding the terrible accident that has brought you before this court.

35On your behalf, your counsel submitted that although serious, this offending did not contain many of the aggravating features described by the Court of Appeal in the seminal case of DPP v Neethling. 

36For example, the degree of speed was not excessive, there was no intoxication or substance abuse involved, there was no erratic driving, there was no competitive driving, the length of the journey exposing others to dangers was relatively brief, you were not ignoring warning signs, there were few others on the road at that time of night, and so forth.  In effect, he said this was a short session of essentially foolish, unwarranted driving to show off and impress a passenger.

37In addition to the difficulties that you suffer, although interviewed soon after the incident, you were not in fact charged by police for a year.  As I have said, it appears that although an early plea of not guilty was entered, your counsel informed me this was never on the basis of whether you had driven the car, or responsible for the action, but whether the few seconds of lost traction causing the collision, satisfied the elements of the charge you have now pleaded guilty to.

38It was also submitted of the debilitated state you are now in, (you have been assessed by psychologist Tim Watson-Munro as suffering from a depressive disorder, you have anxiety, you have constant pain), that in this debilitated physical and mental condition, service of a term of imprisonment would be particularly difficult for you, compared to other prisoners.  I also accept that the nature of the medication that you are required to take, would render you extremely vulnerable to other prisoners who may well stand over you, in order to obtain that medication.

39Ordinarily, I would not hesitate to jail a person such as you, Mr Amro.  This was incredibly stupid offending, but it has clearly ruined your life, and the dreams that you had for your future on a permanent basis.  As I have said, you have been left physically diminished, in constant pain, depressed, anxious, unmotivated, and solitary.

40I accept entirely that because of your own actions, you are now in a pitiable condition, which is persistent since this accident, more than two years ago, with little improvement, and is likely to persist for some time to come.  I do accept that despite your late plea, you are truly remorseful for the damage you wrought upon your victim.  I also regard your further offending, particularly the circumstances of your driving in this year, not as indicative of a disregard for road usage.  Having said this, you do need to be extremely careful when you are taking to the wheel of a car.

41I also accept a term of imprisonment would be particularly difficult for you, and I also accept, that although this is serious offending, many of the aggravating features which would warrant a term of imprisonment are not present.

42This is a tragic case, where the effects of your offending have been catastrophic, to such an extent that they in my view, overcome the principle of general deterrence, which the court normally must have regard to as a primary principle of sentencing, in cases of this kind.  Having said this, obviously, general deterrence is an important matter, but it is my view that this can be successfully achieved via the imposition of a community corrections order.

43In other words, what is called your post-curial punishment has been so severe, and left you in such a particular state, that in my view, a term of imprisonment is not warranted.  In a way, you are a walking cautionary tale, Mr Amro.

44I therefore am going to place you in relation to both charges on a community corrections order.  I note that you have been assessed suitable for this order.  I need to explain to you the core conditions which attach to any order, which are:

45That you must report to a community corrections office within two working days of the making of this order; that is by Monday of next week.  Whilst on the order, you must not commit another offence punishable by imprisonment.  You must not leave Victoria, without the permission of community corrections office.  You must inform the community corrections office of any change of address or employment within 48 hours of the making of that order.  You must report to and receive visits from the community corrections office.  You must not attend upon the community corrections office under the influence of drugs or alcohol, and you must obey all lawful instructions of the community corrections office.

46I am going to order, given your debilitating condition, I think it is a problem, I am going to order - how many hours did you serve on your last CCO?

47OFFENDER:  Sorry, community work?

48HER HONOUR:  Yes.

49OFFENDER:  I think it was about 70 hours.

50HER HONOUR:  How did you go, with it?

51OFFENDER:  I think it was pre-accident, so ‑ ‑ ‑

52HER HONOUR:  Yes, I am a bit concerned, about even giving him any ‑ ‑ ‑

53MR TOVEY:  One way Your Honour can approach obviously is by the provisions that allow it to be served, not necessarily by community work ‑ ‑ ‑

54HER HONOUR:  Yes, that is true, although ‑ ‑ ‑

55MR TOEY:  But it is still community work on the order.

56HER HONOUR:  Have you got any suggestions, Mr Fisher?

57MR FISHER:  No, not really, other than what there is - well, there is reference to it in the report, that there was some ‑ ‑ ‑

58HER HONOUR:  Can you remind me of what was said, because I have managed to mislay it in the ‑ ‑ ‑

59MR FISHER:  I think essentially, it says that he indicated - the accused indicated that he might have some difficulty.  It is on the second page, I found it now.  Second paragraph, and I can read it.  But there was no documentation, so that Your Honour could impose the hours, if there is documentation that supports a claim that he cannot participate in whatever work it is.  I know there is a range of many different jobs that people can do.

60HER HONOUR:  There are.  What I am going to do, I will make it low because of that.  I have documentation; all you need to do is take the medical reports, which I thought would have been provided to corrections.  Did they have a read of them?

61MR FISHER:  I thought they would have been provided as well.  I thought everything went across to corrections, but ‑ ‑ ‑

62HER HONOUR:  Yes, well they might not have had a read of it, because I would have thought the medical reports make it perfectly clear what difficulties this man has.

63What I will do, I will do 50 hours of unpaid community work, on the basis of you doing community work, is much harder for you than everybody else quite frankly.  I am going to order that you attend for assessment and treatment for mental health.

64I really want you to concentrate on that one, Mr Amro.  It would have all felt very hopeless and terrible anyway, but having the court case on top of it, has probably caused you an enormous amount of anxiety, and taken away a great deal of any hope for the future.  That is done now.

65You are only 31, you have got the rest of your life to live.  It would be really good if you really threw yourself into mental health treatment, sir.  You were clearly a talented, vigorous man.  It is a great tragedy that this accident took away this business.  That does not mean you have not got a brain; you did VCE, you might have to do something else.  It does not mean you cannot start up your own business in the future, if you do some sort of study, and get just as enthusiastic about that.

66Have you got any thoughts about that at all?

67OFFENDER:  I do, I have.  Look, obviously my passion is cars.  So I'm hoping to eventually start something again.

68HER HONOUR:  Good.

69OFFENDER:  Start (indistinct) - - -

70HER HONOUR:  Well look, it would be terrific if you did.  All right, but you cannot spend the rest of your life, sitting in your parent's house ‑ ‑ ‑

71OFFENDER:  No, definitely not.

72HER HONOUR:  ‑ ‑ ‑ you just cannot.  I mean, it is most understandable that that is the way you have reacted, but you cannot keep doing this forever.  Is there any talk about you going off to something like the pain clinics, so you can do something about your medication?

73OFFENDER:  Yes, definitely.  I want to start obviously the mental health plan, and some physiotherapy.  But I was just honestly waiting until ‑ ‑ ‑

74HER HONOUR:  Until this was over.

75OFFENDER:  ‑ ‑ ‑ everything was finished off and ‑ ‑ ‑ 

76HER HONOUR:  Well you would understand, under a CCO, you are going to get a mental health plan from your doctor, and you go off and see someone.  It is not necessarily going to be the Rolls Royce gold plated service, that is something you need search out for yourself.  So, that is the only condition, apart from the 50 hours.  I do not believe you require supervision.

77What I am going to do, because I am a bit interested, Mr Amro, I am going to do judicial monitoring.  So I would like to see you in about six months just to see how you are travelling.  It would just be good to see if you have got moving a bit.

78It is not because I think you are going to offend or anything like that.  But I just want to make sure that you have picked up the bundle again, and are moving on a bit more, and you have dealt with corrections before; I am sure you can deal with them again.  But just that hopefully things are a bit better for you. 
23 May at 9.30.

79Sorry, the CCO will last for a period of two years.

80MR FISHER:  Is that with conviction, Your Honour?

81HER HONOUR:  Yes, it is Mr Fisher.

82MR FISHER:  Just a query, thank you, Your Honour. 

83HER HONOUR:  Well, it is nice to see you being very thorough these days
Mr Fisher.  It is wonderful.

84MR FISHER:  I try my best, Your Honour.

85HER HONOUR:  Excellent, I will pass that on to Mr Champion.  Best not?

86MR FISHER:  I am not sure he would be too interested anyway ‑ ‑ ‑

87HER HONOUR:  He would even believe it.

88MR FISHER:  Yes, probably not.  Try your best.

89HER HONOUR:  Yes.  See what we can do.  Thank you.  All right.

90MR FISHER:  I am sorry, there is one thing I have forgotten.  There is an application for a forensic procedure.

91HER HONOUR:  Yes, I do not think that is required really.

92MR FISHER:  All right.  Thank you, Your Honour.

93HER HONOUR:  Thank you.  We will get you to sign this, thank you very much.

94MR TOVEY:  Could I be excused from the Bar table just to run Mr Amro through that, Your Honour?

95HER HONOUR:  Yes.  But no great conversations, Mr Tovey.  I am a busy woman, things to do.

96MR TOVEY:  No, I will keep it to sport and the weather, Your Honour.

97HER HONOUR:  Places to go, i.e. stay in this chair for the next bit of the trial.  All right, Mr Amro, you can come out of the Dock.  I thank counsel very much for their assistance in this matter.

98MR FISHER:  Thank you, Your Honour.

99MR TOVEY:  As Your Honour pleases.

100HER HONOUR:  Will I give you - do you want your medical material back?

101MR TOVEY:  We have got the originals with us, Your Honour
so ‑ ‑ ‑

102HER HONOUR:  Good, all right.

103MR TOVEY:  Might (indistinct) with Your Honour, if there is going to be monitoring.

104HER HONOUR:  Thank you.  Very well, counsel are excused from the Bar table and we will proceed with the next matter.

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