Director of Public Prosecutions v Chaouk

[2022] VCC 1368

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

CRIMINAL DIVISION

Revised Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

OMAR CHAOUK

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August 2022
DATE OF SENTENCE:	18 August 2022
CASE MAY BE CITED AS:	DPP v CHAOUK
MEDIUM NEUTRAL CITATION:	[2022] VCC 1368

REASONS FOR SENTENCE

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CR-21-00679

Subject: Catchwords:

Legislation Cited: Cases Cited:

Sentence:

CRIMINAL LAW -- Sentence

Plea of Guilty -- Aggravated offence of recklessly exposing an emergency worker to risk by driving -- Dangerous or negligent driving

-- Motor vehicle theft -- Difficult and chaotic childhood -- Drug use

Sentencing Act 1991(Vic) -- Disability Act 2006 (Vic)

Bugmy v The Queen (2013) 249 CLR 571 -- Farmer v The Queen [2020] VSCA 140 -- R v Verdins [2007] VSCA 102 -- DPP v Drake [2019] VSCA

293 -- DPP v Herrmann [2021] VSCA 160 -- Marrah v The Queen [2014] VSCA 119 -- Jawarhiri v The Queen [2021] VSCA 287

Total Effective Sentence -- 164 days imprisonment -- 2 year Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Singh	Office of Public Prosecutions
For the Accused	Mr T. McCulloch	Emma Turnball Lawyers

VICTORIAN GOVERNMENT REPORTING SERVICES

(Prepared by Legal Transcripts Pty Ltd) 224071

HER HONOUR:

1Omar Chaouk, on 14 June 2022 you pleaded guilty to one charge of theft of motor vehicle, one charge of dangerous or negligent driving while pursued by police and two charges of aggravated intentional exposure of emergency workers to risk by driving and you indicated your intention to plead guilty to a raft of summary offences relating to being a learner driver without having an experienced driver sitting beside you, being a learner driver without having L plates affixed, two charges of fraudulently using registration plates, one charge of using an unregistered vehicle on a highway and one charge of possessing a controlled weapon. You have formally entered your pleas of guilty to those charges today.

2Your date of birth is July 1991. You are 31 years of age and were 29 at the time of the offending.

Summary of Offending Theft of Vehicle

3The summary of the offending is contained in the Prosecution opening and in short form is as follows. On 29 July 2020, you were observed driving a stolen 2007 black Audi Q7 with registration UXF 085. You were not involved in the theft of that vehicle which occurred in 2019; however, you were driving it in the knowledge it was a stolen car. That is Charge 1 – Theft of Motor Vehicle. The affixed number plates were not registered to that vehicle. That is Summary Charge 23 – Fraudulently use registration label or plates.

First Road Incident

4A week and a half later, on 9 August 2020 at 12.50am, you were parked on Sunshine Avenue in Kealba in the stolen black Audi. Sergeant Shayne Wallace and Constable Nicholas Cahill were on patrol in a marked police car and observed that the car you were in was parked partially in the emergency vehicle lane and was obstructing traffic.

5They pulled up close to you, but not in front of the vehicle. You were sitting in the driver’s seat and they observed that you were thrashing your arms around and punching the car interior. Sergeant Wallace described that you were ‘screaming and ranting and raving’. You then began hitting yourself. Sergeant Wallace stated that he was immediately concerned for your welfare, forming a view that you were either drug affected or may need intervention under the Mental Health Act.

6Constable Cahill said Sergeant Wallace moved the police vehicle so that the front quarter panel was slightly in front of the Audi. Both officers tried to verbally engage with you from their vehicle, but they described you as ‘incoherent’. There was some question mark as to whether you comprehended that police were present beside you.

7Instead of engaging, you accelerated forward and collided with the front of their police car, making contact with the front left side bumper. It was a low speed collision which left a scrape mark on the police vehicle which constituted minor damage. That is part of Charge 2 – dangerous driving while being pursued by Police.

8You drove away and were pursued by Sergeant Wallace and Constable Cahill. Sergeant Wallace estimated that you were driving in excess of 150 km per hour. You went through a red light, making no attempt to stop or slow down (Charge 2 – dangerous or negligent driving while being pursued by Police).

9Sergeant Wallace estimated they followed you for 45 seconds before ceasing the pursuit.

Second Road Incident

10You continued driving and the Police Airwing began to follow and video your vehicle.

11You stopped in a lane on the Western Ring Road, south bound near a McDonald’s restaurant. Sergeant Wallace observed a semi-trailer have a near miss with you.

Second Road Incident

12At 1:10am, four marked police vehicles surrounded your vehicle in an attempt to block you in. Constable Gordon Cox placed a stop stick behind the vehicle. Senior Constable Paul Dowling attempted to open the car using his baton on the front passenger window. First Constable Andrew Roper ran to the driver’s door and opened it. He yelled at you multiple times to get out of the car. You repeatedly revved the engine. He then sprayed you with capsicum spray and smashed the driver’s side window with a baton. Constable Alexandra Cheal placed 'stop sticks' in front of your vehicle.

13You then drove forward with those police officers, in particular First Constable Roper and Constable Cheal in the immediate vicinity of your vehicle. By driving in such a manner, you knowingly exposed them to risk. That part of your driving constitutes Charge 3 – Aggravated intentional exposure to Risk by Driving in relation to First Constable Roper, and Charge 4 - Aggravated intentional exposure to Risk by Driving in relation to Constable Cheal.

14The fact that the vehicle was stolen makes this the aggravated form of that offence.

15The Audi moved slowly forward making contact with the police vehicle which was parked in front of you, pushing that vehicle for a few metres. At that time the Police vehicle had no occupants.

16You then drove over the stop sticks and accelerated away down the Western Highway. You swerved across lanes as you drove away, driving erratically and at one point driving on the wrong side of the road. That is also part of Charge 2.

17You entered Boundary Road and turned left to Fairburn Road. You then turned around and drove to a Shell Service Station on the corner of Boundary Road and

Fitzgerald Road, at which point you exited your vehicle and put your hands in the air. You were then arrested by police.

18A folding knife was located on the floor of your vehicle behind the driver’s seat. That is Summary Charge 26 – Possess a controlled weapon.

19You caused a total of $5,361.73 worth of damage to the two police cars.

20At the time of this offending you were a learner driver, did not have an experienced driver sitting beside you, and did not have L plates visible. Those are all summary offences. In addition, the stolen Audi was unregistered, and the registration plates were fraudulently attached to it. Those are also summary offences.

21On your arrest you were medically examined and deemed not fit for interview. You were remanded in custody on 9 August 2020.

Sentencing principles

22This is serious offending. When people drive in this manner innocent members of the public are often placed at risk, along with police members. The sentence I impose must emphasise the principle of general deterrence. That is, it must generally deter others and particularly other young men from driving in this dangerous way. It must also operate as a means of community protection and reflect the community's disapproval of this type of offending.

23Driving in a manner which places police members at risk is particularly serious. They are people performing a difficult duty and you placed those two members, Officers Roper and Cheal, in danger. Parliament in recent times has taken a particular position with respect to emergency workers which is reflected in the type of charges you are facing.

24In addition to introducing those charges, Parliament has further emphasised their seriousness by attaching particular sentencing requirements to them. That is, the aggravated offence of intentionally exposing an emergency worker to risk by

driving has been classified by Parliament as a Category 2 offence. That brings into operation s5(2H) of the Sentencing Act 1991. The impact of that provision is that I must impose on you in relation to each of those two offences a term of imprisonment not in combination with a community correction order unless a particular exception applies. That offence attracts a maximum penalty of 20 years' imprisonment and sentences must be served cumulatively unless otherwise directed.

Objective gravity

25In assessing the objective gravity of your offending, I note the following.

26In relation to the theft of the vehicle, it is not suggested you were involved in the theft of that vehicle. You have stated that you were given that vehicle by a friend. The charge is on the basis that you were aware it was stolen.

27Your driving constituting Charge 2 is concerning. First, you made contact with the marked police vehicle of Officers Wallace and Cahill, although the damage caused was minor. Second, you drove through a red light and at high speed. Third, you later drove erratically on the Western Highway, again at speed.

28Although you had a near-miss with a semi trailer at one stage, fortunately the time of night, namely about 1 am, meant there were few other cars on the road. In fact, this event happened during a period when Melbourne was in lockdown due to the COVID-19 Pandemic, and as a result the roads were all but deserted.

29I have watched the aerial footage of the incident at McDonald’s car park. The police cars which surrounded you were all marked. Police tried their best to apprehend you at that stage. The car window was smashed with a baton and capsicum spray was deployed. The dangerous nature of your driving is that a number of police officers were on foot around your car. That exposes those officers to risk. Fortunately, none were injured.

30I accept and having watched the footage, that you did not drive at speed to get out of that situation. Instead you moved the car slowly forward, in effect connecting with the police car in front of you and pushing it steadily out of the way, clearly with the intention of making a path to exit. There were no officers in the car which was hit. Minimal damage was caused to it. In that sense, the objective gravity of your offending is lessened.

31Similarly, although there is clearly a risk to the police who were on foot in the vicinity, and I do not wish to diminish that fact, this case is distinct from those where an offender drives or swerves directly at police. It is different to a number of cases where a car was driven at high speed in the direction of police. You did neither of those things.

32Although there was no dispute by your counsel, Mr McCulloch, that a term of imprisonment is warranted for this offending, he points to those features of this offending as distinct from a number of the decided cases. I accept that many of the reported cases contain those more aggravating features.

33You were remanded on 9 August 2020 until a successful bail application which saw you released on 19 January 2021 on CISP bail and a raft of stringent conditions. You have successfully navigated bail and have not reoffended now for over two years.

The Sentencing Act 1991 – section 5(2H)

34One of the main issues in sentencing you relates to the application of section 5(2H) of the Sentencing Act 1991 and the requirements of that section. Your counsel submitted that the portion of imprisonment you have already served, in combination with a lengthy Community Correction Order is within range of appropriate sentence. He makes that submission relying on the exception provided for in section 5(2H)(e). That sub-section allows a sentencing court to depart from the mandatory requirement of imposing a term of imprisonment, not in combination

with a CCO, if there are substantial and compelling circumstances which are exceptional and rare and which justify that step. Although not an insurmountable hurdle, it is an extremely stringent test.

35Further, the legislation specifically prohibits the sentencing court from taking into account a range of factors which would ordinarily be important to the sentencing synthesis. They include relevantly an early guilty plea and prospects of rehabilitation. I must also give less weight to your personal circumstances and must regard deterrence and denunciation as having more importance than other sentencing principles.

36I must have regard to Parliament’s intention and I must consider whether the cumulative impact of circumstances justifies a departure from a term of imprisonment.

37The Prosecution submits that you have not met that test and that a sentence with a non parole period is the only appropriate disposition.

38In order to determine those issues I will turn to your personal circumstances.

Personal circumstances

39You were born in July 1991. You grew up with your parents and four brothers and one sister. You have a diagnosed intellectual disability, and a history of significant life trauma as a result of exposure to violence and criminality through other family members. You have a resulting diagnosis of Post Traumatic Stress Disorder and Anxiety, Depression and Substance Use Disorder stemming from your early life events. You also meet criteria for Persistent Depressive Disorder.

40You attended a local Catholic primary school but struggled to read and write. You then attended a local college in Altona North before transferring to the Kensington Community School until Year 10. You still have poor literacy and numeracy skills and struggle with day to day documentation.

41After leaving school, you worked at a fruit and vegetable market in retail and for family friends for a short time.

Intellectual Disability

42Your IQ is assessed to be somewhere between 59 and 61. This places you in the bottom 3 per cent of the population. Assessment of your cognitive functioning over time is documented, with the first assessment occurring in 1998 when you were aged seven. A 2007 assessment placed you within a target group assessment in accordance with the Disability Act 2006 and it seems a formal Certificate of Intellectual disability was issued to you at that time.

43In relation to your intellectual disability, Ms Gina Cidoni identifies that your overall thinking and reasoning abilities exceed those of only approximately 0.1 per cent of individuals your age. She identified deficits in verbal comprehension, perceptual reasoning skills, and working memory and processing skills. She reported that your intellectual abilities impact your ability to cope in areas of daily life including communication, self care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work.

44By definition intellectual disability is organic and permanent. You have recently been approved for a funding package under the National Disability Insurance Scheme. I will return to this.

Exposure to Trauma – Bugmy v The Queen

45Your father had a history of criminal activity which included multiple convictions for assault, burglary and heroin trafficking. He was imprisoned at various times during your childhood. There was longstanding animosity between your family and another.

46In 2005, when you were 11 years old, police conducted a raid on your family home. You were present at that time and your bedroom door was broken open and you

were pulled out of bed. You report being trampled on and held at gun point. You recall your mother screaming. Your brother Mohammed was shot and killed by police during that raid.

47You told Psychologist Ms Gina Cidoni that life was stressful after your brother’s death. It ‘changed everything and everyone.’ You also report that your father’s activity and coming in and out of prison was stressful.

48When you were aged 16, on 13 August 2010, your father was shot dead in your backyard. You were again present and recall crying and clinging to him as he lay motionless on the ground.

49When you were aged 18 gunshots were fired at your car.

50In August 2015, you shot yourself in the groin and right testicle.

51Another of your brothers was incarcerated for eight years.

52In 2018 your sister’s partner was found guilty of murdering a member of the other family in the context of the ongoing animosity. Despite that event you report being close to him. He died in 2020 while you were in prison.

53Your aunt and cousin also died in Lebanon in 2020 when you were in custody.

Mental Health

54You report battling depression and anxiety after the events of your childhood. In particular, you report being traumatised after the deaths of your brother and father in the family home in 2005 and 2010.

55

There was no dispute by the Prosecution that your early life experiences enliven the principles enunciated by the High Court in Bugmy v The Queen.1 As put by Mr McCulloch, it matters little whether one is born with or beset by circumstances of trauma or deprivation. You were a young boy and teenager when those events

1 Bugmy v The Queen [2013] HCA 37

were occurring around you. You did not choose to be born into circumstances of criminality and the resultant stress that lifestyle brought to your family. Being witness to the killing of your brother and father in dramatic circumstances has been a significant trauma in your life.

56Psychological reports indicate that your early use of illicit substances was a maladaptive attempt to self medicate around that trauma. Your illicit drug use includes use of cannabis, methamphetamine, cocaine and abusing pain medication. That addiction was fairly rampant until approximately 2014.

57I have made that finding in relation to Bugmy on the basis of your early life exposure to violence. That finding is a matter which does not diminish with time which must be given full weight in sentencing. As higher Courts have variously stated, it is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse, or parental neglect in an offender's formative years. Those circumstances are more than matters of historical significance. The effects do not diminish with the passage of time and are likely to have profound and lasting consequences.2

Prior Criminal History

58In the context of your life and your use of illicit substances you yourself engaged in criminal activity. As a 20 year old in 2012, and again in 2013, you appeared in the Magistrates’ Court in relation to a raft of offending including numerous driving matters which bear some similarity to the offending before me. There are numerous offences of driving while disqualified, and a charge of reckless conduct endangering life which related to an episode of driving. You were variously fined and given partially suspended terms of imprisonment. You appeared throughout 2014 for dishonesty matters.

2 DPP v Herrmann [2021] VSCA 160; Marrah v The Queen [2014] VSCA 119; DPP v Drake [2019] VSCA 293; Jawarhiri v

The Queen [2021] VSCA 287

59On 8 December 2016, you appeared in this Court on a charge of armed robbery, prohibited person in possession of a firearm, and several dishonesty matters. You were sentenced to a total effective term of three and a half years imprisonment with a non parole period of two years imprisonment. I have read the sentencing reasons in relation to those matters. It is clear His Honour viewed the sentencing task as a challenging one. He referred to a report from Ms Cidoni which stated the following:

‘Regarding his background, there was clearly a considerable level of negative import and exposure to violence and crime at a young age. Unfortunately, this makes him vulnerable in areas of problem-solving and decision-making. He has limited ability to reason, plan, understand, judge or discriminate. He has a considerably lower capacity to think about intended actions, consider consequences and exercise restraint. He is also susceptible to suggestion and has problems with logic, foresight, planning and understanding consequences.

This is complicated by his substance abuse that includes ice and drinking amounts of GHB and taking Xanax. These substances have the effect of producing severe psychological disturbances with symptoms of anxiety, depression, violence, impaired concentration, disruptions of reality, paranoia and delusions. Sadly, many of these symptoms are in evidence in Mr Chaouk’s case.’

60She went on:

‘He requires treatment to maintain abstinence from drugs but he requires case worker support should he be released on a CCO in view of his intellectual impairment with a justice plan in place. Psychological counselling is also recommended but all treatment must be tailored to his intellectual level. Hopefully with supports in place, he might maintain abstinence from drugs and this in turn will reduce offending.’

61You were assessed as suitable for a Community Correction Order, but ultimately a sentence of imprisonment with a non-parole period was imposed. You had already served 621 days on remand. His Honour expressed a hope that engagement with disability services would be available to you should you be granted parole.

62You managed to remain substance free during your time in custody. You were ultimately granted parole after serving approximately two and a half years of that sentence. That saw you released in September 2018. You successfully completed parole, although there was limited involvement with support services. You have, in fact, never had a CCO or other disposition aimed squarely at your rehabilitation.

Circumstances surrounding current offending

63You remained illicit drug free until shortly prior to the offending before me in August 2020.

64In the lead up to the offending before me you had injured your knee at a friend’s farm. You had prescription medication which you ultimately abused. You also commenced using illicit substances. You report struggling with the COVID-19 pandemic and periods of lockdown, and that this exacerbated your depression and anxiety.

65You were drug affected at the time of the offending. Largely for that reason, your counsel does not seek to invoke section 5(2H)(c).

Period of Remand

66Your period of remand on this offending was difficult. You entered remand at the height of the COVID-19 pandemic in this State. You underwent multiple periods of quarantine as you were initially moved between prisons. There were no in- person visits from your family, lockdowns were frequent, and programs minimal.

67I have received an affidavit from Ms Jennifer Hosking, Assistant Commissioner, Sentence Management Division, of Corrections Victoria, Department of Justice and Community Safety. She attests to arrangements during the pandemic. She also attests more broadly to the difficulty of placing you in the custodial setting due to your family background. She also noted your personal past history of suicidal ideation and self harming behaviour in the prison environment. You were noted to be vulnerable in the prison setting.

68You requested and were ultimately placed at Barwon Prison in the Grevillea unit with your brother. According to Ms Hosking, you were classified as maximum security as a result of that placement. She states that the regime in that unit is a

‘more restrictive environment to manage the security, safety and placement needs of prisoners who require more intensive supervision than prisoners who are in mainstream or protection (but without the needs of a high security management unit.)’

69Restrictions include limited out of cell hours, limited association with other prisoners, restricted access to amenities, including the library. She states –

‘While placing the defendant and his brother was and is complex, the primary consideration was his wish to be with his brother and overrode the possible additional restrictions he would be under which were discussed with him. He will receive up to 4 hours out of cell each day, instead of 8 hours out of cell in Barwon mainstream or protection, if placement there was appropriate.’

70Regular reviews were conducted with you during your remand. You are described as incident free, displaying good behaviour, and keeping in contact with your family via phone and video calls.

National Disability Insurance Scheme

71You were assisted in making application for an NDIS package. On 22 December 2020 that package was approved. You have approximately $50,000 annually available to you and which is to cover a range of supports to assist you with activities of daily living and therapeutic supports, as well as rehabilitation.

Bail

72On 7 January 2021 you were assessed for the CISP program. You were granted bail on 19 January 2021. I have read the CISP completion report dated 28 June 2021. It is a positive record of your excellent engagement. You were described as engaging constructively with CISP case management, enacting weekly calls with your case manager independently, and engaging with all primary treatment providers including fortnightly counselling with Ms Cidoni, weekly alcohol and drug supports and fortnightly NDIS funded outreach supports. It appears this is the first time you have received such a range and scaffolding of support. Specifically, you reported the involvement of NDIS case management was assisting you to achieve structure and routine. The report concludes –

‘Mr Chaouk has demonstrated strong personal insight into his current treatment supports and shows a clear understanding of how his psychologist appointments and NDIS supports work collaboratively to achieve personal goals and outcomes around increasing his personal independence and cognitive decision making. Mr Chaouk reports strong rapport with his support workers and has recently worked with them to schedule and plan his current appointments, a relatively new experience for Mr Chaouk. Mr Chaouk has identified long term goals of utilising NDIS funding to assist him to access and maintain education and employment opportunities – the writer observes that Mr Chaouk discusses his current supports in a reflective manner highlighting that he now feels he has the overarching supports in place that will enable him to make meaningful changes in his life.’

73A number of those reflections are repeated in the recent assessment reports I requested. Importantly, you continue to remain illicit drug free.

74Your NDIS package continues to be administrated by Phoenix Specialised Youth and Disability Services. I am aware that service has expertise in managing people with an intellectual disability and who are engaged in the criminal justice system, including assisting them with the requirements of a CCO. I have received letters from May 2021, May 2022 and August 2022 confirming your continued engagement with their services.

Extended Pre-Sentence Report

75In a recent extended pre-sentence assessment report, Mr Stephen Miriklis, Court Assessment and Prosecution Services, described you as demonstrating good insight into your offending behaviour and the precursors to your offending. You took responsibility and expressed an understanding of the seriousness of your offending and expressed remorse.

76You expressed a desire to cease a lifestyle which involved offending and incarceration. You have distanced yourself from negative peers and now engaged with a social circle of people who are not involved in drug use and criminal activity. Importantly, you reported taking a number of active steps to avoid contact with your past crowd, such as changing your phone number and removing yourself from social media contact.

77You are assessed as being a high risk of reoffending. I accept that assessment given your past history. In terms of your prospects of rehabilitation, no doubt in the past they have been guarded. In light of the recent interventions and your change in attitude in my assessment they are now positive. They will largely depend on your ability to resist a resort to drug abuse, and to resist any negative influence. To that end, the author of the pre-sentence says –

‘He presented as motivated to engage with this service and seeks to immerse himself with interventions post release.’

78I have also received a Disability Overview Report and Justice Plan, which speak to the availability of Disability Justice Coordination.

Current Circumstances

79You are now engaged in casual employment as a concreter, which you are enjoying. You are working three to four days per week and the employer, who is a family friend, knows your history and circumstances. You have also recently obtained a traffic control certificate.

80You live with and are the primary carer for your elderly mother who has health issues. The pre-sentence assessment reports that you have genuine concern about her welfare and realise that she relies on you for support and daily care. The author notes she is ‘clearly a motivation which has been identified [by you]’.

81The 11 year old son of your deceased brother also lives in your family home and you have played a carer role for him.

82You have reconnected with your Muslim faith and find that is a source of calm to you.

83You were recently in a six month relationship with a woman who does not use drugs or alcohol and who is striving to have her own hair salon. You and she have mutually decided to continue as friends for the time being as you are prioritising the completion of your Court matter.

Plea of guilty

84This matter proceeded through the Case Conference system and then a Sentence Indication Hearing, both before me in 2021. You entered your pleas of guilty on 14

June 2022. The matter did have a committal hearing which was confined to exploring the appropriate charges.

85They are not early pleas in time. The parties agreed that a misapprehension about the applicability of a mandatory non-parole period played a part in delaying resolution. Once those matters were resolved, a plea of guilty soon followed.

86Any plea of guilty has a utilitarian benefit in that it saves the community the cost and time involved in a criminal jury trial.

87In addition, you have entered a plea of guilty during the period of the COVID-19 pandemic when criminal jury trials have variously been suspended and where there is significant backlog. In those circumstances higher courts have indicated that a plea of guilty must be given significant weight. I take those matters into account.

88In addition, I accept your plea of guilty is a demonstration of some remorse. You expressed remorse during the CCO assessment and demonstrated some insight into the dangers posed by your driving. You receive the benefit of your plea of guilty.

89I take into account the challenges of your period of remand which I have already outlined, but also the fact you have served that period during the COVID-19 pandemic. That represents possibly the most difficult time for prisoners in Victoria in the modern era. I take that matter into account.

Submissions regarding section 5(2H)

90Returning to consideration of section 5(2H)(e). Your Counsel argued that a combination of circumstances in your case amount to substantial and compelling circumstances which are exceptional and rare. They are –

(a)the nature of your intellectual disability with full scale IQ at 59-61 and the way that impacts your capacity for judgment, reasoning and your function in daily life;

(b)the history of trauma and exposure to violence in your formative years enlivening Bugmy principles;

(c)your mental health diagnoses stemming from those experiences which it was argued enliven the principles of Verdins, specifically limbs 5 and 6 where Ms Cidoni states –

‘The concern with incarceration is that it would place him at increased risk of further psychological deterioration in view of his low coping resources resulting in him being subject to a substantially and materially greater than ordinary burden’;

(d)the particular difficulties of your remand including the fact it occurred during the COVID-19 pandemic, and the ongoing difficulty you will face in custody due to your family of origin;

(e)your positive progress on bail, including participation in CISP, ongoing voluntary participation in counselling, ongoing abstinence from illicit substances;

(f)the existence now of supports via the NDIS package and your engagement with same and the existence of a Justice Plan;

(g)your employment, and carer roles in your family and your efforts to distance yourself from negative associations

Conclusion

91Although those factors were not said by the Prosecution to meet the applicable test, in my view, they do so. The circumstances of your childhood in themselves

are extraordinary. The fact your bore direct witness to the shooting of two family members at your family home is a rare situation. The ensuing stress, anxiety and ultimately PTSD is significant. The way those events played into your engagement with illicit substances is significant. I must also view those experiences through the prism of your intellectual disability. You have ongoing diagnoses of PTSD, Persistent Depressive Disorder, anxiety and depression and substance use disorder.

92Although Verdins3 limbs 1 to 4 were not specifically relied on, I note in sentencing you in 2016, His Honour was satisfied that your moral culpability was reduced on account of your mental impairments. The Prosecution here conceded the applicability of limbs 5 and 6. With his characteristic fairness, Mr Singh accepted that given your underlying and organic diagnoses, to a limited extent the other limbs were likely in play. I do not have to reach a conclusion on that issue. There is entanglement here with drug abuse. In reaching my conclusions regarding Bugmy, however, that involves a finding that your moral culpability is reduced.

93Your particular circumstances in the custodial setting are also exceptional and rare. They place you, not through your own doing, but because of your family, in a position where any period of custody will be more burdensome on you. You would likely continue to require placement in a management or other restricted environment.

94While I cannot take into account your prospects of rehabilitation, following the Court of Appeal approach in Farmer, I can and should have regard to the steps you have taken since the offending.4 Despite your difficulties, you have engaged genuinely and with insight over the last 19 months on bail. Significantly, no previous disposition was directed at your rehabilitation. Significantly, in the past you did not have NDIS available to you. In my view it would be undesirable to

3 R v Verdins [2007] VSCA 102

4 Farmer v The Queen [2020] VSCA 140

interrupt your progress and return you to incarceration. That is particularly so given the particular difficulties you face in custody.

95In my view, those circumstances taken in combination are substantial and compelling and exceptional and rare so as to justify a departure from the mandated position. My view that that is the appropriate sentence in all the circumstances is further confirmed when I consider the objective seriousness of your offending, and your pleas of guilty. That is not to say imprisonment is not warranted, but in my view the term you have served in combination with a lengthy CCO is the appropriate sentence.

96I have formed that conclusion while giving consideration to current sentencing practices and to the maximum penalties applicable.

97In addition, the exposure to risk reflected in Charge 3 and Charge 4 was constituted by the same moments of driving. Those charges interrupt Charge 2 which was an ongoing one. Therefore, given the close relationship between Charges 2, 3 and 4 both in time and nature, it is my intention to impose an aggregate sentence on those three charges.

Driver’s Licence

98In relation to your driver’s licence, it must be cancelled and you must be disqualified. That term is at my discretion. I propose to make an order which sees you eligible to obtain a licence almost immediately. I am taking that course because given your history, driving unlicenced is one of your biggest risks of incarceration. It is in your interest and the community’s interest that you become a licenced road user.

99The Community Correction Assessment Report recommended an 18 month Community Correction Order. Although my initial view was that a longer period than I am going to impose was warranted, I have however reduced the length I

would otherwise have imposed given your involvement in CISP and then the voluntary steps at rehabilitation over the last 19 months.

Sentence

100The sentence I impose, Mr Chaouk, is as follows:

101On Charges 2, 3 and 4 you are convicted and sentenced to 164 days imprisonment and a two year Community Correction Order. I will return to the conditions of that order in a moment.

102On Charge 1, you are convicted and sentenced to four months imprisonment.

103On Summary Charge 5, being a learner driver without an experienced driver and Summary Charge 6 being earner driver failing to affix L plates, you are convicted and fined $300.

104On Summary Charge 7, fraudulently use registration plates on 9 August 2020, Summary Charge 8, using unregistered vehicle on a highway, and Summary Charge 23, fraudulently using registration plates on 29 July 2020, you are convicted and fined a total of $500.

105On Summary Charge 26, possessing a controlled weapon without lawful excuse, you are convicted and sentenced to 14 days imprisonment.

106I direct the sentences on Charge 1 and Summary Charge 26 are to be concurrent with the base sentence imposed on Charges 2, 3 and 4.

107In relation to the Community Correction Order, the conditions I impose in addition to the mandatory conditions will be as follows:

108That you be under the supervision of Corrections Victoria.

109That you complete 200 hours of unpaid community work. I allow for up to 100 hours of treatment to be offset against that 200 hours of unpaid community work.

110What that means, Mr Chaouk, is the more treatment you undertake, the less unpaid community work you will have to complete.

111I direct that you are to be assessed for treatment in relation to drug use; that you are to be assessed and undertake treatment as directed in relation to your mental health. I direct that you are to be assessed and undertake programs aimed at reducing your reoffending and I direct that you comply with the conditions of the Justice Plan.

112In addition, I propose to impose judicial monitoring. What that means is that you will come back to me in about six months time and I will hear about your progress. The date for judicial monitoring will be 1 February of next year, 2023. I will receive a report prior to that time and that will tell me exactly how you're progressing on this order.

113Before I can impose a Community Correction Order, Mr Chaouk, I need to seek your consent that you will undertake order that I am giving you the opportunity to do. Do you agree to undertake that order?

OFFENDER: Yes, Your Honour, thank you.

114HER HONOUR: Do you understand that if you breach that order, whether that is by any further offending or by not complying with the conditions I have outlined, that you would be brought back to me for re-sentencing?

115OFFENDER: Yes, Your Honour, I won't be offending.

116HER HONOUR: In relation to your driver's licence, that licence will be cancelled and you will be disqualified for a period of two years from the date of the offence, that being 9 August 2020.

Pre Sentence Detention

117I declare that you have already served 164 days in custody and that that period of time be reckoned as having been served under this sentence.

Section 6AAA

118But for your pleas of guilty, the sentences I would have imposed would have been overall sentence of four years and two months imprisonment with a two year non parole period.

Ancillary Orders

119Mr Singh, I do not believe I have heard about the ancillary orders?

120MR SINGH: Your Honour, I thought there had been a lodge. There's forfeiture and disposal orders I believe.

121HER HONOUR: Sorry, I should correct myself. I am aware of those. I think it's the compensation that I haven't heard about. Mr McCulloch, is there a position on those?

122MR McCULLOCH: Forfeiture and disclosure are of course not opposed. In relation to the compensation order, Mr Chaouk does not in principle oppose the general principle that he should make restitution for the damage that he caused and that's reflected in how he's approached this matter and the plea and the remorse he has demonstrated. I would submit that Your Honour have regard to his financial circumstances in the making of the order under section 86. Your Honour, of course the order is discretionary.

123The financial circumstances do not appear to be a relevant factor in terms of the discretion as to whether the order is made but it does give Your Honour a discretion in terms of the amount that an order to be paid and at what rate and as Your Honour knows, Mr Chaouk is in receipt of a carer's payment with respect to his mother. He is receiving very modest work experience through his work, about

$100 a day, so his means are comparatively in respect of that.

124Your Honour, given that it's not a private citizen that claims the loss, it would be open to Your Honour to perhaps order a lesser amount, paid at a lesser rate.

125HER HONOUR: Mr Singh, do you want to make any submission in relation to that?

126MR SINGH: Your Honour, I accept the payment of a lesser rate or a smaller rate, but to say that he can pay a lesser amount is speculative because the amount is what it is. It is hard to say he should only pay half or a third, or a quarter, unless Your Honour finds that appropriate. But in my respectful submission the order is a natural one following the event and if Your Honour was to make an order of restitution it should be in the full amount but it can be over a period of many months, even years.

127HER  HONOUR:  Yes.  I  propose to  make the order.  I think it's  appropriate,   Mr McCulloch, that the order be made for the full amount and that Mr Chaouk come to some arrangement in relation to how it can be paid.

128MR McCULLOCH: Yes, Your Honour.

129HER HONOUR: Perhaps what I will do is I will make the order. Can the parties have some discussion about the terms of payment?

130MR SINGH:    Yes, Your Honour.

131MR McCULLOCH: Yes, perhaps before the draft order is and I can ask Mr Singh and I can have a discussion about an appropriate - - -

132HER HONOUR: Yes, all right. I do propose to make that order. I agree it naturally follows the event and part of the consequences of the driving here and it should be made.

133MR McCULLOCH: Yes, of course.

134HER HONOUR: All right. Are there any other matters to raise, counsel?

135MR McCULLOCH: Not from my perspective, Your Honour.

136MR SINGH: No, thank you, Your Honour.

137HER HONOUR: All right. Mr Chaouk, that documentation which will outline the conditions of your Community Correction Order will be sent to Mr McCulloch and your solicitor today.

138OFFENDER: Yeah.

139HER HONOUR: And that will be forwarded to you. I would like to have a signed copy back to the court by the end of tomorrow, Friday tomorrow, because that confirms your agreement to undertake that order. So I will leave that to your solicitors to work out how that's done.

140OFFENDER: Yes, thank you, Your Honour.

141MR McCULLOCH: I'll do that today, Your Honour.

142HER HONOUR: Thank you. You will need to comply with the reporting obligation which I think will be today or tomorrow and I believe from the report it's a phone reporting to start off that order.

143OFFENDER: Yes, Your Honour.

144HER HONOUR: And as I said, I will see you in February to hear exactly how you're going. I hope it's all positive.

145OFFENDER: Always, Your Honour.

146HER HONOUR: All right, thanks very much. Thanks, counsel, for your assistance. We'll now adjourn. Thank you.

147MR McCULLOCH: If the court pleases.

148MR SINGH: May it please the court.

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