Director of Public Prosecutions v Berichon, Brendan Luke and Houssein, Omar
[2013] VCC 271
•8 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01305
CR-12-01260
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN LUKE BERICHON |
| OMAR HOUSSEIN |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2013 | |
DATE OF SENTENCE: | 8 March 2013 | |
CASE MAY BE CITED AS: | DPP v Berichon, Brendan Luke & Houssein, Omar | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 271 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Thomas | Office of Public Prosecutions |
| For the Accused Berichon | Mr D. Sheales | Grigor Lawyers |
| For the Accused Houssein | Mr C. Pearson | C Marshall & Associates |
HER HONOUR:
1 Brendan Berichon, you have pleaded guilty to one charge of conspiracy to commit an indictable offence, namely intentionally cause serious injury and one charge of being a prohibited person in possession of a firearm.
2 Omar Houssein, you have pleaded guilty to one charge of conspiracy to commit an indictable offence, namely intentionally cause serious injury.
3 The maximum penalty applicable to the offence of conspiracy to commit an indictable offence is 20 years’ imprisonment and the maximum penalty applicable to the charge of prohibited person in possession of a firearm is 10 years’ imprisonment.
4 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
5
I adopt the description given by his Honour Judge Gullaci and given to
co-offender, Joseph Hosri, when sentencing for his offending. The same description applies to both of you. You, as was Hosri, were hired thugs and acted as thugs in return for money.
6
Whether or not you knew what the dispute was about involving Mr Fletcher, you took it upon yourselves to arm yourselves or be present with persons you knew were armed, prepared to act with your co-accused to be party to a conspiracy to intentionally cause serious injury to Mr Fletcher. The presence of weapons is an aggravating feature of Charge 1. I also note in your case,
Mr Berichon, the weapon you possessed in Charge 2 was loaded.
7 I turn to the background to your offending.
8 Mr Berichon, you were born in 1977 and were 33 years of age at the time of this offending. At the relevant time you were operating mobile phone number 0427281069, registered in the name of Steven Gerrard. Later you began using mobile number 0435781551, registered in the name of Brendan Skuja, such being a family name also used by you.
9 Joseph Hosri knew you and, as I have said, was a co‑offender in this offending. At the relevant time Hosri was 18 years of age. He is not before me in relation to these charges, having been sentenced by His Honour Judge Gullaci on 3 March 2012.
10 At the relevant time, Hosri was operating mobile phone number 0432807614 registered in the name of Joey Hoz.
11 Prior to these offences Hosri began attending your gym, Bulletproof Fitness, and trained regularly with you and another co‑offender, Vincent Meyer, who is part-heard in a plea before me.
12 Vincent Meyer was born in 1990 and at the time of this offending was 21 years of age. He knew you, Berichon, and he also knew Hosri at the relevant time, having trained regularly with both of them.
13 Omar Houssein, you were born in 1992 and at the relevant time were 19 years of age. You knew Hosri and were in regular contact with him. You were also a friend of another co‑accused, Mark Roumanos.
14 Mark Roumanos was born in 1992 and was 18 years of age at the time of this offending. He is Hosri’s cousin and knew you, Mr Houssein. His trial is listed to commence on 2 September 2013.
15 I turn to an overview of your offending.
16 In the period leading up to 11 July 2011, Hosri and you, Berichon, were involved in organising and participating in a job which involved recruiting people, in this case to drive to an address in Ringwood and assault the person who lived there, as nominated by others.
17 You, Mr Houssein, and the other offenders, were to be paid for your services.
18 Arrangements would be made by phone, and details of the proposed victim of your offending were provided by the persons asking you to do the job. The use and provision of weapons and disguises was also discussed.
19 On 11 July 2011, you, Mr Berichon, Mr Houssein with Meyer and Roumanos were arrested near the scene of the proposed job, which you had planned by phone with Hosri earlier that day.
20 As a result of intelligence, police legally intercepted phones of some of the offenders, commencing on 28 April 2011. Intercepts revealed Meyer and Berichon using particular mobile telephone numbers.
21 On 3 June 2011, Hosri sent Meyer a text message in which he advised Meyer he was in possession of a set of knuckle-dusters, offering to sell them to him for $90. The following day Hosri and Meyer spoke and arranged to meet so that Meyer could buy the knuckle-dusters.
22 Prior to 11 July 2011, Berichon was asked by an unknown person to attend at 2 Rupert Street, Ringwood, and assault Timothy Fletcher, in retaliation for a drug-related aggravated burglary apparently committed by Fletcher the week before.
23
On the afternoon of 11 July 2011, Hosri telephoned Meyer and invited him to do the job that night with Berichon. Hosri said it was the same thing as “the first job, the one that fucked up”, and it would be $1500. At that stage
Mr Meyer declined the job.
24 Hosri then telephoned Houssein and told him that there was “one tonight” for $1500. Hosri told Houssein that the job was to “clean someone up”, that he would have something with him, and that Hosri would give Houssein “metal things” if he wanted. An arrangement was made to speak later. The time for the job was set for 7.00 to 8.00 o’clock that evening.
25 Mr Hosri provided Houssein with a set of knuckle-dusters for use in the planned offence. You, Mr Houssein, were aware Mr Berichon was going to be armed with a firearm.
26 Hosri later spoke to Mr Meyer on the phone, who then had a discussion with another male about a job driving for $100 per hour.
27 Hosri next had a number of conversations with Mr Roumanos, where the fee for him to drive to the job was discussed. Hosri told Roumanos the job was in Ringwood and that he had already paid Meyer, who was going to make his own way to Mr Berichon’s gym.
28 Hosri rang you, Mr Houssein, and told you Roumanos would pick you up, and that you would be paid $500. Hosri referred to Roumanos as “my cousin Mark”.
29
Mr Hosri then spoke to Mr Berichon and confirmed that Meyer, Roumanos and Houssein would be at his gym shortly. After they arrived at the gym, this was confirmed by a phone call to Hosri. Hosri then agreed with you,
Mr Berichon, that he would provide a mask for you “for riding”. Subsequently Hosri supplied you with a skeleton mask as a disguise.
30 Various other messages and calls took place between you, Mr Berichon, Hosri, you, Mr Houssein, and the other offender as the evening wore on. The prosecution says all offenders knew the job involved assaulting a person, and further, each accused knew three passengers would be armed and that Berichon would be armed with a firearm.
31 As a result of the organisation by Hosri, both of you, with Meyer and Roumanos, drove to Rupert Street, Ringwood, at about 8.00 pm, in a car provided by Roumanos.
32 Police surveillance was then being conducted as a result of the information obtained from the telephone intercepts.
33 You, Mr Berichon, were in the front passenger seat of the vehicle in possession of a handgun, a torch, a skeleton mask and gloves.
34 Mr Meyer and you, Mr Houssein, were in the rear of the car, each armed with a pair of knuckle-dusters provided by Hosri. A baseball bat and a black beanie were also located in the boot of the vehicle.
35 Your car turned into Prospect Court, which adjoins Rupert Street. The prosecution alleges that you were there intending to alight from the vehicle and to then enter Rupert Street to assault Mr Fletcher.
36 The Special Operations Group intercepted your vehicle in Prospect Court and arrested all four of you.
37 You, Mr Berichon, threw a loaded .38 revolver out the front window of the car in an attempt to hide it. This is the charge of being a prohibited person in possession of an unregistered firearm.
38 When Mr Meyer was arrested he had a set of knuckle-dusters.
39 Police searching the scene found a glove, torch and another set of knuckle-dusters on the nature strip in Prospect Court, and located another set of knuckle-dusters, skeleton mask and glove inside the car. Mobile phones owned by the occupants of the car were also located in the vehicle.
40 The handgun thrown out of the window by you, Mr Berichon, was a Smith and Wesson .38 revolver loaded with six cartridges. It was retrieved from nearby bushes. It is very concerning that this weapon was loaded. I do not need to tell you this, I am sure you are aware of that.
41 Police found a handwritten note in the car showing a plan of the interior of the house in Rupert Street that you had intended to enter.
42 The following day a resident of Prospect Court found a note with Mr Fletcher’s name, other details and a figure of $5000 handwritten on it, which the prosecution alleged was a record of the instructions you, Mr Berichon, was given for the job.
43 When interviewed you, Mr Berichon, exercised your right not to answer police questions.
44 Mr Houssein, you were interviewed on 11 July 2011. You said you were in the vehicle with the co‑accused at the time of the arrest but denied knowing where you were going, who the other passengers were, or of being aware that any offence was to be committed.
45 When Mr Meyer was interviewed by police on 11 July 2011, he agreed he had knuckle-dusters on him at the time but said he did not touch the firearm.
46 Mr Roumanos, when interviewed by police, admitted he was the owner of the mobile phone in his name that was found in the vehicle that evening, and a fingerprint matching his was found on the handwritten house-plan located in the vehicle intercepted in Prospect Court, Ringwood.
47 Police investigation revealed that on the night of 11 July 2011, there were five people present in the house at 2 Rupert Street, Ringwood, including two children. It seems Mr Fletcher was not at home at that time.
48 You have both pleaded guilty to the charges upon which you have been presented. I accept that following the contested committal, efforts were made by those representing you and the Office of Public Prosecutions to resolve your respective offending to a suitable Indictment.
49 You are entitled to have the fact that you have pleaded guilty, and the stage at which this was indicated, taken into account in your favour, and I do so.
50 The community has, by your plea, been spared the time and cost of a trial, and witnesses have been spared the ordeal of having to give evidence at your trial.
51 Turning firstly to you, Mr Berichon. You were born in 1977 and are 35 years of age at time of sentence. You have an older sister, although you do not have contact with her. Mr Sheales described your childhood as "dislocated". You have only had intermittent contact with your mother over the years.
52 You lived in Townsville for the first ten months of your life. Your mother remarried at a later stage, and as a result you have two half brothers. You described your relationship with your stepfather as being very poor and that he was violent towards you.
53 At the age of 15 you went to Boys Town, leaving there just before your 17th birthday. It was around this time your offending commenced. The oldest prior matter alleged was an appearance at Beenleigh Magistrates’ Court Queensland on 9 February 1995.
54 You have spent some time in youth detention, then also in a youth hostel.
55 You also did some work as an apprentice sheet-metal worker for a year. You were then unemployed and further re-offended in 1995. You were, on that date, before the Court in Brisbane for offences including unlawful use of a motor vehicle for the purpose of facilitating the commission of an indictable offence, numerous charges of armed robbery in company, a charge of robbery in company with personal violence. A sentence of detention and imprisonment was imposed.
56 You were then involved in an exchange with police which led to your court appearance at the Melbourne Supreme Court on two charges of attempted murder and one of false imprisonment in 1999. You received a sentence of 13 years’ imprisonment with a minimum period of 9 years.
57 Following your release from prison you were extradited to Queensland. There was then a court appearance at the Brisbane District Court on 12 September 2008 for which you received a total effective sentence of 5 years’ imprisonment, with 2 years and 8 months to be served. After some discussion, between Mr Sheales and the prosecutor, it was agreed, as I understood it, that the balance of your sentence of 30 months was suspended after you completed that 2 years and 8 months. The offences then before the court included three charges of serious assault – commit crime/resist/prevent arrest/detention and one charge of serious assault – assault/resist/obstruct police officer/person acting in aid of police officer, aiding a person to escape from lawful custody and harbouring an escaped prisoner.
58 For the purposes of sentencing, your offending before me breached that period of suspension, and such is concerning. I have real concerns about your rehabilitation prospects, in part due to your prior criminal history.
59 Although one can never give up hope of your eventual rehabilitation, there is little before me to suggest that there is any great likelihood of that, and I have guarded optimism in relation to that.
60 Following being paroled from the sentence imposed in 2008, you were extradited to Victoria and were in custody for ten days before being released by the Adult Parole Board. My understanding is that detention was an error, or misunderstanding, on the part of the Adult Parole Board at that stage.
61 After your then release from custody you opened a gymnasium, having obtained appropriate qualifications whilst serving time in custody, which included a first-aid course, personal training course, and a boxing instructor course. Those courses were completed with external bodies, or agencies, that you were able to access whilst in the prison system.
62 You operated the gymnasium until your arrest for this offending. You were at that time living with your wife, whom I gather you married whilst in prison serving an earlier sentence.
63 You have been in custody as a result of your offending before me for 606 days up to and including yesterday, being 7 March 2013.
64 Mr Sheales submitted that the head sentence and minimum term urged by the prosecution was excessive and outside the range of appropriate sentences for your offending.
65
Mr Sheales referred to the sentence imposed on co‑offender, Mr Hosri. He did, however, acknowledge there were a number of differences between
Mr Hosri and yourself for sentencing purposes. I will address parity shortly.
66 I am aware that Mr Hosri, when sentenced by His Honour Judge Gullaci, was sentenced not only for the offence that is before this court but also for other matters. Mr Hosri was sentenced to 42 months’ imprisonment with a minimum term of 20 months in total. Specifically, he received a sentence of 16 months' imprisonment for the offending reflected in Charge 1 before me.
67 In my opinion you, Mr Berichon, and Hosri, are sentenced as principals in this offending. You have the added role as organising this job as stated within the Prosecution Opening (see Paragraph 15).
68 Mr Sheales submitted that in relation to Charge 2, being a prohibited person in possession of a firearm, there should be some concurrency with Charge 1. This is so, however, I note you are to be sentenced as a serious violent offender as well.
69 Mr Sheales referred to the decision of R v Hudson[1], which he described as worse case offending. The Court of Appeal determined that the five year sentence imposed in relation to "use" of the unregistered firearm in that case was within the range.
[1][2010] VSCA 332
70
The Court at Paragraph 52 referred to five years for that offence, being
one-third of the maximum, as being at the highest end of the range. Of course, when comparing cases factually there are always differences between the facts and matters personal to each offender. In your case, Mr Sheales conceded that your possession of the firearm was in the context of ongoing criminal activity, and was loaded.
71 I turn to Hudson, which involved a prohibited person "using" an unregistered firearm. The charge to which you have pleaded guilty relates to "possession".
72 The Court of Appeal referred to the limited assistance when comparing cases factually. I do, however, find sentencing principles stated within authorities as being relevant when determining the appropriate sentence.
73 In Hudson, the Court of Appeal referred to the offence of "possession" of an unregistered firearm by a prohibited person and stated:
“Where the offence is ‘possession’ of an unregistered firearm by a prohibited person, the use to which the firearm is put is relevant to the sentence in only a very limited way. More severe sentences for ‘possession’ are generally reserved for cases where possession of the firearm is associated with ongoing criminal activity (R v Graham (2007) 178 A Crim R 467).“
74 The latter was the situation in your case Mr Berichon.
75 I am aware that Hudson involved the "use" of a firearm, not the charge before me, and that the maximum penalty in that case was 15 years, not the case here. I further note, the Court of Appeal referred to the sentence imposed by the learned sentencing Judge, in the case of Hudson, of 5 years on that charge was "a lenient one which could have attracted a more substantial sentence."
76 Turning to your plea of guilty, Mr Sheales submitted that there was never any doubt you would be pleading guilty in relation to the firearm. The facts in relation to that offending, he said, were never in dispute. He submitted, the alleged incident at Somerville was the real issue at the time of the contested committal. That, however, seemed inconsistent in part, given that members of the Special Operations Group were then required for cross-examination at committal.
77 Regarding the timing of your plea of guilty, Mr Sheales said discussions occurred with the prosecution in an attempt to resolve the matter before me into a suitable indictment from the time of that contested committal in approximately July 2012, and of course it has ultimately resolved.
78 Turning to you, Mr Houssein. Mr Pearson, on your behalf, outlined your personal circumstances and details. You were 19 years old at the time of this offending, and will be 21 on 11 March 2013.
79 You live with your parents, and some of your siblings and your brother’s wife, at a home at Mickleham. You were born in Australia. Your parents are of Lebanese origin. Your family is a very large one. I was told you have 14 brothers and sisters.
80 Mr Pearson described your childhood as one of relative impoverishment. Your father worked. Your mother, not surprisingly, was at home looking after the children.
81 You were educated to Year 10. The last school you attended was Fawkner High School. You were asked to leave school due to your poor academic achievement and constant truanting. It had been four years since you were at school.
82 In the interim you had been employed in unskilled manual labouring, and at the time of this offending were working as a carpet-layer earning a modest income.
83 You had very recently enrolled in a TAFE course.
84
Turning to your criminal history, I note you do not have any prior court appearances. However, you do have a subsequent court appearance, which is of concern regarding your rehabilitation prospects. The subsequent appearance relates to offending committed on 1 and 16 June 2010. On
28 March 2012, you were placed on a Community-Based Order for that offending.
85 Unfortunately, you breached that Order and a suspended sentence was imposed in lieu on 27 November 2012. You were on bail for those June 2010 offences at the time you committed the offence before me in July 2011. I am concerned about the violence involved in the 2010 matters, and the violence charge that is before me.
86 Your subsequent court appearance is relevant to your rehabilitation prospects. Not only do I note violence in all your offending behaviour, I am also concerned that since you saw Dr Fox in early 2012, whilst he recommended you attend for anger-management counselling, you had not done so. In addition, I note with concern, in the Court Bail Report prepared by Mr Stephen Riordon dated 18 February 2013, and when you attended with Mr Bilyk for counselling, you attended on two sessions and failed to attend any other sessions. Further, I am concerned to read regarding the "missed" attendances between yourself and Mr Riordan. That your failure to attend a number of appointments led Youth Justice to inform the Informant, and since then your attendance was declared as "sporadic" and that you had missed numerous appointments. Regarding your rehabilitation prospects, I have at best guarded optimism and ongoing concerns.
87 Turning to your drug, alcohol and psychiatric history, Mr Pearson stated you were an occasional user of alcohol, with no history of use of illicit drugs. You did not have any history of psychiatric interventions.
88 Turning to your involvement in this offending. You instructed you knew Hosri, who you thought was about a year younger than you. You were at the time working as a labourer with limited income, with a background of relative poverty.
89 Hosri, you instructed, invited you to become involved in a job. You were to be paid relatively large sums of money for doing what you thought was little work. You knew a man would likely be beaten up, that knuckle-dusters might be used, and that other weapons would be present. You understood you were to remain in the car unless you were told to do something. You were prepared to do that if required. You were ready to do what you would be asked to do. I was told you did not know Meyer or Berichon before this night.
90 You were to report back to Hosri after the job. You also knew Roumanos, who was the driver on this night.
91 Your motivation was to obtain money, although you had not been paid anything. You instructed you regretted your decision to become involved.
92 While you might regret your decision to become involved, you were, despite having committed offences in June 2010 and been charged for them, prepared to embark on offending which you were aware could involve the use of violence and weapons.
93 A number of other documents were placed before me during the course of your plea hearing. I was provided with a report prepared by Dr Alan Fox, Registered Psychologist, dated 6 February 2012.
94 You were initially referred to him for problems with mood and anxiety. Dr Fox said you had suffered no major injuries or assaults during your life, with no serious exposure to trauma. You did not drink, smoke, take steroids or other drugs. You enjoyed going to the gym.
95 You were educated to Year 10, and described yourself as having a talent for sports. After leaving school, you started an apprenticeship in rendering for eight months, then moved to carpet-laying, and brick-laying. At the time of this report you were employed in casual work.
96 Turning to your criminal matters, you reported you were charged with intentionally causing injury in Broadmeadows in 2011 as a result of racial insults from a 17 year old when you were with two of your mates. There seemed to me, during your plea, to be some confusion regarding that incident and it seems your offending, however, was in 2010. You told Dr Fox you regretted your offending behaviour.
97 On presentation you appeared to be struggling with mood problems, although were co-operative. You described suffering problems with mood, temper and coping.
98 Dr Fox diagnosed you with depressive episode with anxious/paranoid/mildly psychotic features. In his opinion, your judgment and thinking were likely to be impaired to some degree by your depressed thought, or anger, around the time of this offending. You described having heard internal voices and Dr Fox thought that required further investigation.
99 Dr Fox recommended you see a psychologist or psychiatrist to monitor and assist you to reduce your mood issues. Also, that you complete a course in anger management and possibly try anti-depressant medication.
100 Mr Pearson, who appeared on your behalf, correctly, in my opinion, was not relying on the principles in R v Verdins & Ors[2] in mitigation of your sentence.
[2](2007) 16 VR 269
101 I have previously referred to the Bail Progress Report dated 18 February 2013 prepared by Mr Stephen Riordan of the Youth Justice Unit. The purpose of that report was to provide information regarding your recent progress whilst on bail. Further information was also provided in that report in relation to your background, including employment history. In 2012, you had enrolled in a Certificate III and IV course in Fitness, hoping ultimately to be registered as a fitness instructor. However, it seems you failed to attend enough sessions and were asked to leave. You were currently enrolled in the Victorian Fitness Academy at Essendon Fields, where you are studying Certificate III in Fitness and Outdoor Recreation and Certificate IV in Outdoor Recreation in a course that apparently lasts for four months. There was an invoice before me dated 25 January 2013 which indicated fees of $1762 outstanding, which I assume are outstanding pending the outcome of this hearing.
102 Since being on bail to Youth Justice, you were encouraged to see a psychologist to address your low mood and anxiety, and then self-referred to Dr Fox, to which I have previously referred.
103 On 23 April 2012, you informed Mr Riordan you were no longer seeing Dr Fox and were referred to Forensic Psychologist, Mr Michael Bilyk, who saw you twice. I have previously referred to your not continuing with Mr Bilyk. Your lack of treatment to date is concerning, as I have said, when assessing your rehabilitation prospects.
104 Of further concern to me was your overall progress on the Bail Program. As part of your bail, you were required to attend Youth Justice and as I previously stated, you failed to attend a number of appointments.
105 I also received a reference from Ms Feda Dawish, who has known you since you were 9 years of age. She described you as a loyal friend to her son. She described you as gentle, loving and caring. You did not drink alcohol or take illicit substances, although I note your instructions are that you do at times consume alcohol. She said at times you have helped her around her house.
106 Turning to the resolution of your plea. There was, at a committal mention, an initial offer to the prosecution to plead guilty to conspiracy to assault. At that time, however, there were a number of other charges you also faced. It was not until December 2012 that an Indictment was filed that contained the charge to which you have now pleaded. You subsequently indicated your intention to plead guilty to that on 11 February 2013.
107 Mr Pearson conceded that such was a late indication by you of your plea of guilty. I accept, however, there had been discussion prior to that date in an attempt to resolve your offending to a suitable Indictment.
108 Turning to parity. Mr Pearson urged that I conclude Hosri was the principal as he was the organiser of this activity, and you were not.
109 In my opinion, whilst it is clear Hosri was an organiser, I nevertheless regard all of those before me as principals in the offending, albeit with differing roles. I note Mr Hosri and Mr Berichon’s additional roles as organisers.
110 You have spent 47 days in custody in an adult prison to date. Mr Pearson urged, when sentencing you, that if I considered an immediate term of imprisonment was the only possible disposition, bearing in mind such always must be the last resort of the court, I should have you assessed for your suitability for a Youth Justice Centre disposition.
111 I agreed to have you assessed. However, I made it very clear at that time I wanted to further consider all of the material before me before I formed a concluded view as to the appropriate disposition.
112 I received a report from Mr Stephen Riordan dated 5 March 2013 regarding your suitability for a Youth Justice Centre detention. In making his assessment, Mr Riordan considered s.32 Sentencing Act 1991.
113 Mr Riordan again noted your sporadic attendances with your compliance with youth justice, to the stage where there was an application to revoke your bail due to your irregular attendances.
114 Mr Riordan described your prospects for rehabilitation as "reasonable". He said you would benefit from the structure and programs that exist in the youth justice system. Despite being, in Mr Riordan’s opinion, physically able to cope in adult prison, he had concerns you would be easily influenced by more experienced prisoners.
115 I have reflected further upon this report when determining the appropriate disposition in your case. I remain concerned regarding your rehabilitation prospects, but I am mindful of R v Mills[3].
[3](1998) 4 VR 235
116 I am also conscious of R v O’Blein[4], specifically Coghlan AJA’s reference to Youth Justice Centre Orders and adult imprisonment.
[4][2009] VSCA 159
117 You are, as I have said, a principal in the offending before me. It was very serious offending indeed. You were on bail for offences of violence committed in 2010 when you committed the offence that is before me. You were subsequently placed on a Community Based Order, which you breached.
118 I am conscious, as I have stated, when sentencing of the importance of rehabilitation when sentencing young offenders. However, Mills is not of automatic or usual application. Each case depends on its own circumstances including the circumstances of the offence as well as the offender (see DPP v Lawrence[5] and Connolly[6]). I have also read the recent decision, which was released today, of DPP v Anderson[7], and whilst the factual circumstances involved in that case are very different from yours, as were matters personal to that offender, the court nevertheless again refers to relevant sentencing principles. When sentencing Mr Hosri, His Honour Judge Gullaci referred to R v Tran[8]. In Tran at p.462, Court of Appeal Callaway J said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not the only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true in the case of a youthful offender that rehabilitation is usually far more important than general deterrence. But the word I have just italicised is there to remind us that there are cases where just punishment, general deterrence and other sentencing objectives are at least equally important.”
[5](2004) 10 VR 125
[6][2004] VSCA 24
[7][2013] VSCA 45
[8](2002) 4 VR 457
119 I have reached the same conclusion as his Honour. In your case “just punishment, general deterrence and other sentencing objectives are at least equally important”.
120 There are cases where those objectives are relevant and equally as relevant as rehabilitation of a youthful or young offender, and in my opinion, this case is just such a case.
121 Ms Thomas, on behalf of the prosecution, submitted in your case, Mr Berichon, that there was no formal offer made to plead to these two charges until January 2013. Any discussions prior to then had been informal between counsel. In your case, Mr Houssein, it was not until 25 January 2013 your matter finally settled.
122 Ms Thomas submitted it was too simplistic to compare the roles of either you, Mr Berichon, or you, Mr Houssein, with Hosri. Mr Hosri did not have any prior criminal history, pleaded guilty at the earliest opportunity, and had his matter dealt with in March 2012. Both of you ran contested committals, necessitating members of the Special Operations Group be called and cross-examined regarding the offending before me. Mr Hosri, Ms Thomas noted, was also co-operative with police in his record of interview.
123 Ms Thomas submitted that both of you were principals in this offending. Each of you were in the car, each were armed, or knew others were armed. In addition, you, Mr Berichon, were involved in organising the job with Hosri. Whilst you, Mr Houssein, were not involved in the planning, you nevertheless knew others were armed, and knew that there was an intention to seriously harm an individual. She urged that you were all principals in the offending and as I have stated, I agree. GAS & SJK v R[9] provides assistance when sentencing co-offenders. Whilst I have concluded you were principals in this offending, I have noted the additional roles of you, Mr Berichon and Mr Hosri.
[9]206 ALR 116
124 I turn to the principles of parity. When sentencing, I must and do, take into account principles of parity. This includes an assessment of the differences between each of you and Hosri.
125 In R v Taudevin[10] the court stated that parties to the commission of the same offence should receive the same sentence, but matters such as age, background, prior criminal history, character and role played in the offence are taken into account.
[10][1996] 2 VR 402
126 I am also conscious of the need, when sentencing, to avoid a justifiable sense of grievance in a co-offender (see Postiglione v The Queen[11]), although relevant differences between offenders justify different outcomes (see Nguyen[12] and R v Dinelli[13] .
[11](1997) 189 CLR 295
[12][2012] VSC 119
[13][2010] VSCA 22
127 In mitigation of Mr Hosri’s sentence, His Honour Judge Gullaci noted:
(a) his young age at the time of offending, ie: 18 years;
(b) that Hosri did not have any prior criminal history;
(c) that rehabilitation was an important consideration when sentencing a young offender;
(d) he had pleaded guilty at the earliest opportunity;
(e) he made admissions to police;
(f) he may need "protection" from Mr Berichon and/or his associates as a result of his assistance to police;
(g) he was a low-moderate risk of re-offending; and
(h) he had engaged well with Youth Justice and had received counselling.
128 Turning to you, Mr Berichon. In my opinion, there are a number of distinguishing features between yourself and Mr Hosri and perhaps these are obvious. These include that you are significantly older than Hosri and of course have a significant and relevant prior history involving violence. You also are before me with an additional charge. Your plea of guilty came relatively late in the piece.
129 You, Mr Houssein, are just short of 21 years at time of sentence. Whilst you do not have any prior criminal history you do have a subsequent court appearance for offences involving violence, which causes me concern regarding your rehabilitation prospects. You were on bail for those offences when you committed the offence before me.
130 Further, your plea of guilty was not entered at the earliest opportunity. You proceeded to a contested committal, although I understand the circumstances of that as outlined by Mr Pearson. You did not make admissions to police (as Hosri did), although you of course are entitled not to make admissions. You did not name "names", in particular Mr Berichon (as Hosri did). You were older than Hosri at the time of this offending, although not much older. You did not engage very well with Youth Justice, as observed by Mr Riordan in the Bail Report before me.
131 In my opinion, as I have said, both of you are to be sentenced as principals in this offending, acknowledging the slightly greater role of Hosri and Berichon as organisers. Whilst it is clear that you, Mr Houssein, were not the organiser, you nevertheless went along with it, knowing full well what was to occur, i.e. that someone could be seriously injured as a result, and you were willing to be part of that if called upon. You also attended being aware of the potential for the use of weapons.
132 Mr Hosri did not have any prior matters. Neither do you, Mr Houssein, however you unfortunately have a subsequent appearance which is relevant to your rehabilitation prospects. Mr Berichon, you do have a number of relevant prior court matters.
133 There were three victim impact statements before me during the plea hearing from the residents at the home that you were proposing to attend on 11 July 2011 when looking for Timothy Fletcher. I have read those victim impact statements. Ms Thomas conceded the statements had minimal, if any, relevance to sentencing for the charges before me, given the ultimate lack of attendance by you at the property where Mr Fletcher was supposed to have been living. I can, however, readily accept they were concerned when they found out you were going to attend their home with weapons. They were understandably concerned about what could have happened had you not been intercepted by police.
134 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am conscious, however, I must not let the effects upon a victim to swamp the sentencing process.
135 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also consider general deterrence, which is of importance in a case such as this. There is also specific deterrence required when sentencing you, Mr Berichon, given your significant number of prior court appearances. Also in the case of you, Mr Houssein, your subsequent offending at court for other matters involving violence gives me some cause for concern.
136 I must also consider the need to protect the community from you. This causes me concern in respect to both of you and in particular you, Mr Berichon. I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
137 When sentencing you, Mr Berichon, the provisions of ss.6D and 6E Sentencing Act 1991 apply. You are for the purposes of this offending a serious violent offender as a result of your prior convictions relevant to Charge 1 on the Indictment before me.
138 As such, s.6D(a) of the Act requires, when sentencing you, I must regard protection of the community from you as the principal purpose for which the sentence is imposed. In order to achieve that purpose, I may impose a sentence longer than that which is proportionate to the gravity of your offending.
139 The prosecution did not submit that a disproportionate sentence was warranted in your case and I am also of the opinion I can sentence you appropriately without the need to impose a disproportionate sentence.
140 Turning firstly to you, Mr Berichon.
141 On Charge 1 you are convicted and sentenced to 4 years’ imprisonment.
142 On Charge 2 you are convicted and sentenced to 3 years’ 6 months imprisonment.
143 Charge 1 is the base sentence, and I direct that 18 months of Charge 2 be served cumulatively upon charge 1.
144 That results in a total effective sentence of 5 years and 6 months imprisonment, and I direct you serve a period of 4 years before you are eligible for parole.
145 Turning to you, Mr Houssein. I have considered Mr Pearson’s submission regarding a Youth Justice Order disposition and have read the assessment of Mr Riordan in that regard.
146 I have concluded such a disposition would "not" adequately or appropriately address all sentencing considerations. I am aware imprisonment in an adult gaol must be the last resort of the court. I am also aware you have not previously been sentenced to a term of imprisonment, as distinct from the 47 days spent on remand.
147 On Charge 1 you are convicted and sentenced to 2 years’ imprisonment, and I direct that you serve a period of 12 months before you are eligible for parole.
148 Pursuant to s.6AAA Sentencing Act 1991, Brendan Berichon, had you pleaded not guilty to these offences I would have sentenced you to a term of imprisonment of 8 years and set a non-parole period of 6 years.
149 In the case of you, Omar Houssein, I would have sentenced you to a term of imprisonment of 3 years and set a non-parole period of 2 years.
150 Turning to pre-sentence detention, pursuant to s.18(4) Sentencing Act 1991, I declare that you, Brendan Berichon, have spent 606 days in custody by way of pre-sentence detention, up to and including yesterday, being 7 March 2013, and I direct that that be entered into the records of the court.
151 I declare that you, Omar Houssein, have spent 47 days in custody pursuant to s.18(4) Sentencing Act 1991, and I direct that this be entered into the records of the court.
152 The prosecution also sought a number of orders in relation to both of you. An application for forfeiture of a firearm, to which there was no objection.
153 The prosecution also made applications for forfeiture of cash, phones and torch found in the car by police on 11 July 2011. There was no objection to that order being made by counsel on your behalf, and I make the order in the terms sought.
154 There was also a Disposal Order sought in relation to you, Mr Berichon, for other items found in the car during the search. There was no objection to that order being made, and I make the order in the terms sought.
155 Turning to you, Mr Houssein. The prosecution made application for a forensic sample. This was not opposed to by counsel on your behalf, and I make the order in the terms sought. It will be for a saliva sample. I do that on the basis of the seriousness of this offending. I must advise you the authorities may use reasonable force in order to obtain that sample.
156 Also, there was an application made for forfeiture by the prosecution in relation to you, and again your counsel did not object to the order being made, and I make the order in the terms sought.
157 Further, Mr Houssein, I note you have previously spent your time in custody in the "youth unit" and I hope such will be considered by the authorities again. Thank you.
158 HER HONOUR: Are the days right?
159 MS GODING: Your Honour, I had pre-sentence detention for Mr Berichon at 606 days.
160 HER HONOUR: What did I say? 605?
161 MS GODING: Yes, 605.
162 HER HONOUR: Well, 606 will do.
163 MS GODING: And likewise for Mr Houssein, 46 days.
164 MR PEARSON: Your Honour, I - - -
165
HER HONOUR: Just before you stand up, you said how many for
Mr Berichon?
166 MS GODING: 606, excluding today.
167 HER HONOUR: All right, we will make that 606 not 605, yes. Mr Pearson?
168 MR PEARSON: Your Honour, regarding Mr Houssein, I know I said 46 days - I mean, on reflection I say it's 47 days. He was in custody - - -
169 HER HONOUR: I'm not going to argue about it, 47. If it's an extra day, that's a bonus. Well that's that, all right.
170 MR PEARSON: I won't try and talk Your Honour out of it.
171 HER HONOUR: All right, so that's 47 days.
172
MS GODING: The other, Your Honour, in relation to Charge 2 against
Mr Berichon, the maximum penalty is 15 years not 10.
173 HER HONOUR: You told me 10. There's no doubt about it. I had this discussion.
174 MS GODING: The discussion was had, it was the repealed section. I have had a look at it - - -
175 HER HONOUR: Well, I don't intend to change the sentence. The prosecution have an obligation to get these things right. I raised that at the time and if he gets a benefit because of the prosecution, so be it.
176 MS GODING: As the court pleases.
177 HER HONOUR: I must say - I take it you don't object to that Mr Sheales, do you?
178 MR SHEALES: I have nothing to say, Your Honour.
179 HER HONOUR: No, I didn't think so. Getting back to the prosecution on these points. I had that discussion with the prosecutor - I'm not trying to have a go at you, Ms Goding, you're just the messenger so don't take it personally. I had this discussion with the prosecutor. I raised my concern. I thought it was 15, at least Mr Sheales will probably be prepared to confirm that and Ms Thomas maintained it was 10. She had that checked and said it was 10 years. I believed that was wrong at the end of the day so you might just pass that message on.
180 MS GODING: As the court pleases. There's one final matter, Your Honour.
181 HER HONOUR: So as I say, if he received the benefit the prosecution have got to get their act together.
182 MS GODING: There's one final matter. There's notices of discontinuance to be filed in relation to a number of charges that are still active, for lack of a better word.
183 HER HONOUR: Is this to do with either of these two gentlemen?
184 MS GODING: Well, there's one in relation to Mr Berichon and also in relation to Vincent Meyer. I'm happy to - - -
185
HER HONOUR: Well, don't worry about Mr Meyer yet, just take care of
Mr Berichon if there's something here. A notice of discontinuance in relation to what?
186 MS GODING: To an old indictment. Under the
187 HER HONOUR: Does Mr Sheales know about this?
188 MS GODING: It has been communicated with defence.
189 HER HONOUR: Well, I know he's not going to object to it but I just want to make sure that - it's a notice of discontinuance in relation to what indictment or what charges?
190 MS GODING: Indictment C1108046.1 in relation to Charges 1, 2 and 3 as they relate to Mr Berichon only.
191 HER HONOUR: What are the Charges? Have you got them there?
192 MS GODING: They are - - -
193 HER HONOUR: Let's make sure this is clear so that they don't resurface.
194 MS GODING: An aggravated burglary, intentionally cause serious injury, recklessly cause serious injury.
195 HER HONOUR: Do you agree that's so, Mr Sheales?
196 MR SHEALES: Yes, I presume it's Somerville.
197 MS GODING: They relate to - - -
198 HER HONOUR: The alleged Somerville incident, if I could call it that, yes.
199 MS GODING: Correct, and under s.164, because it's unrelated, they're not discontinued by the filing of a fresh indictment.
200 HER HONOUR: No, that's fine. So you announce that that's discontinued. Yes, well that will be noted on the records of the court that that is filed. Can you file that please and hand that up to my associate, thank you. So there's nothing to do with Mr Houssein?
201 MS GODING: No, nothing in relation to Mr Houssein.
202
HER HONOUR: All right then, thank you. Could you please remove
Mr Houssein and Mr Berichon, thank you.
203 (PRISONERS REMOVED).
204 HER HONOUR: Thank you.
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