Director of Public Prosecutions v Chaouk
[2016] VCC 1924
•9 December 2016
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00112
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
OMAR CHAOUK Defendant
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JUDGE: His Honour Judge Murphy
WHERE HELD: Melbourne
DATE OF HEARING: 26 September, 1 December 2016
DATE OF SENTENCE: 9 December 2016
CASE MAY BE CITED AS: DPP v Chaouk
MEDIUM NEUTRAL CITATION: [2016] VCC 1924
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence – armed robbery – theft (3 counts) – possession of a firearm – driving while unlicensed – contravening a condition of bail – dealing with property suspected being proceeds of crime – offender shot himself – significant number of prior convictions – intellectual disability – R v Verdins (2007) 169 A Crim R 581 applied – extra judicial punishment – whether community corrections order appropriate – Boulton v The Queen [2013] VSCA 342 considered – youthful offender – whether combination sentence appropriate – sentence of imprisonment with non-parole period imposed
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:Boulton v The Queen [2013] VSCA 342; R v Verdins (2007) 169 A Crim R 581
Sentence:Total Effective Sentence of 3 years’ and 6 months imprisonment with a 2 year non-parole period
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APPEARANCES: Counsel Solicitors
For the Crown Ms C Parkes Office of Public Prosecutions
For the Defendant Ms G Morgan Melinda Walker
HIS HONOUR:
Omar Chaouk, you have pleaded guilty to the following charges:
a)One charge of armed robbery (maximum penalty 25 years’ imprisonment);
b)Three charges of theft (maximum penalty 10 years’ imprisonment);
c)One charge of being a possessing a firearm while being a prohibited person (maximum penalty 10 years’ imprisonment);
d)One rolled-up summary charge of driving while unlicensed (maximum penalty 25 penalty units or three months’ imprisonment);
e)One summary charge of contravening a condition of bail (maximum penalty 30 penalty units or three months' imprisonment); and
f)One summary charge of dealing with property suspected being the proceeds of crime (maximum penalty two years' imprisonment).
The Circumstances of the Offending
The circumstances of the offending were set out in open court on the plea which I incorporate by reference.[1] At the time of the offending, you were aged 23, were unemployed and had no fixed address.
[1] Exhibit A on the plea.
The first charge is a charge of theft of a motor vehicle. The victim attended at a property in Caroline Springs to visit a friend in his Subaru car which was worth approximately $30,000. Whilst he was sitting in the car, you and another male attended the car and you told the owner that you liked the car and asked how much he would sell it for. He responded to you by saying he would sell it at the right price. You gave your name as “Omar” and asked the owner, who is the victim in this matter, whether you could take it for a drive. Prior to driving the car, you showed the victim a bum bag which contained approximately $2,000 in cash.
The victim got into the passenger seat of the vehicle and allowed you to drive the car, for which you did for about 10 minutes. You then stopped at an address and told the victim that you owed some money to a friend, whose address you had just stopped at. You then gave the victim a $50 note and asked him to place it in the letterbox of the address. The victim did so.
Whilst the victim was out of the car, you drove away leaving the victim at the scene. He made telephone contact with you, and you responded by saying that you would be back shortly. You, however, did not return the car.
The second charge arises a few weeks later where, on 3 February 2015, you attended at Mr Marino’s house and asked him if you could take his 2012 Harley Davidson Fatboy motorcycle for a test ride. The motorcycle was valued at approximately $35,000. The victim agreed to allow you to have a test drive, however, you never returned the motorcycle. It was recovered a week later.
The third charge of theft involves you driving into a service station in a vehicle that was carrying stolen registration plates. This service station was in Taylors Hill. Here, you filled the car with petrol up to the value of $50 and drove away without paying. This was captured on CCTV footage.
Charge 4 is the most serious charge on the indictment. You had met the complainant, the owner of a 2000 Holden Commodore VT Clubsport about three months prior to the incident. On 9 March 2015, you met the complainant at the house of a mutual associate in Kingdom Way in Kings Park. You asked the complainant to give you a ride in his car. At this time, the car was worth approximately $10,000. Throughout the journey, you offered to purchase the vehicle from him for $10,000. He responded and said that he “would think about it”.
You asked him to drive to a particular house, however, there was no-one home. You then asked if you could test-drive the vehicle – you said that you were going to drive it to Mr Valoa’s house.
10.You drove the vehicle towards Mr Valoa’s house, but you did not stop outside his house – you stopped 4 houses from his house at which point you produced a .22 calibre silver handgun from a bag hanging around your neck. You pulled the top up and the bridge was exposed showing a bullet. The victim asked you what the gun was for, and you responded by stating that the Serbians were after you, and that the victim had to get out of the car and assist Mr Valoa. This, however, did not make any sense to the victim.
11.The victim attempted to call Mr Valoa, however, his phone was running out of battery. He then asked you “what are you going to do?” and you responded by saying that “I’m going to do a U-turn and park on the other side of the street”. You were increasingly angry at this point in time.
12.You then told the victim to get out of the car multiple times whilst pointing the gun sideways at the victim. The victim took a book from the glove box and got out of the car at which point you drove away. The victim attempted to call you, but you declined to call him back. This car has never been returned. At the time of this offending, you were a prohibited person because you were on a suspended sentence.
13.The second most serious charge on the indictment is the charge of possession of a firearm whilst being a prohibited person.[2] This charge arises from an incident on 17 March 2015. You called a woman by the name of Sarah Atkinson-Leech. You called her while you were located out the front of her house and asked her to go outside. At this time, you were driving a Mercedes coupé. During a conversation with her, you reached into your pocket to get a cigarette and while you were doing so, you accidently discharged a loaded handgun. The bullet from the handgun struck you in the groin and right testicle.
[2] Charge 5 on the indictment.
14.You jumped out of the car and assessed the injury. You then returned into the car and drove to Mr Farrugia’s address in Taylors Hill with Ms Atkinson-Leech. Upon arriving, Mr Farrugia, who is also a co-offender in relation to this matter, walked out of the house and spoke with you. Mr Farrugia returned inside his house with the firearm you had shot yourself with. Mr Farrugia then drove you to hospital in the Mercedes. You were still in possession of the keyless entry device, so after they dropped you and began driving home, the car stopped.
15.You told the nurse at the hospital that you had been playing with a pen gun. Staff from the hospital contacted police who then attended. You told Ms Atkinson-Leech that she should lie about the circumstances of the offending. She subsequently made a false statement to police. That is, however, irrelevant in this proceeding.
16.You were found to be suffering an entry wound into the area of your stomach below your belly button and exit wound near the pubic bone and also a superficial abrasion and swelling of the right testicle. You then discharged yourself from hospital and did not have any further treatment for these injuries.
17.These are the charges on the indictment. There is a summary charge of contravening a condition of bail, for which you were placed on for other matters. You breached this when you did not report on 11 March 2015 and subsequent.
18.There is a further charge of unlicensed driving. You were unlicensed at the time of the above offending. This is a rolled up charge of 14 occasions, between 13 January 2015 and 17 March 2015, where you were driving a vehicle when you did not have a licence.
19.When you were arrested, you gave a no comment record of interview. There are no victim impact statements.
The Seriousness of the Offending
20.Charges 1 and 2 involve the theft of valuable vehicles from the owners of that property. The owners were prepared to entrust the vehicles to you for a test drive and you then proceeded to treat the vehicles as your own. Both vehicles were recovered but both offences involved a brazen taking by you of a motor vehicle and motorcycle, respectively.
21.The third charge involves theft of petrol. Offences of this kind are prevalent in the community.
22.The charge of armed robbery is the most serious charge here. The seriousness with which it is treated by Parliament is that the maximum penalty is 25 years' imprisonment. The offending here was slightly unconventional, in that you were acquainted with the complainant. From his statement, he indicates that had his vehicle been returned, he may not have reported the matter to police. Balanced against that, however, is the fact that he trusted you enough to allow you to drive his vehicle. You then decided to pull a handgun on him, showed him it was loaded and used it to force him to leave his vehicle.
23.Aggravating your offending was the fact that you were a prohibited person by reason that you were on a suspended sentence at the time. Further, at the time of this offending, you were on bail for unrelated matters.
24.No substantial explanation has been forthcoming for the offences on the indictment, other than that you were using drugs at the time. The fact that you were in possession of a loaded firearm and prepared to use it to perpetrate a theft is very troubling, particularly when the owner of the vehicle would not cooperate and you then became angry.
25.Further, nearly three weeks later you were still in possession of the loaded handgun and accidentally shot yourself. An aggravating circumstances here, as I have indicated, is that you were on bail for other offences at the time. Possession of a firearm, loaded or unloaded, is always regarded as a serious offence and as I said, there has been no explanation as to how it came to be in your possession.
26.The summary offences to which you have pleaded guilty cannot be ignored in the overall assessment of your conduct. Stolen number plates facilitate the unlawful use of vehicles and the theft of petrol is, as I said, prevalent in the community.
27.The rolled up charge of unlicensed driving is serious. You have a number of prior convictions for driving whilst disqualified or suspended and it is not clear whether you have ever held a licence. You regard yourself as being above the law and not required to be licensed. This is manifested by the 14 occasions where you drove without a licence. It shows a complete disregard for the law, and indeed, for other road users.
28.The offending here was a spate of serious criminality over a six-week period, the most serious of which were the armed robbery and being a prohibited person in possession of a firearm. This was in circumstances where you were on a suspended sentence, and in relation to the period between 25 February and 17 March 2015, you were on bail for unrelated matters.
Prior Convictions
29.You were aged 23 at the time of the offending and have admitted a significant number of prior convictions. On 25 November 2013 on offences of contravening a conduct condition of bail and fail to answer bail, you were sentenced to five days' imprisonment. On the same day, on offences of dealing with the proceeds of crime, you were sentenced to 42 days' imprisonment which was suspended for a period of nine months. Thus, at the time of this offending you were on a suspended sentence. Again on the same day you were fined $500 for possession a drug of dependence. Therefore, this offending that I am presently dealing with commenced just weeks after you were placed on a suspended sentence.
30.On 20 May 2014, you were convicted and fined $500 for a contravention of a personal safety intervention order. On 15 January 2014, on two counts of theft and driving whilst disqualified, you were sentenced to a three months' aggregate sentence. On the same day, a suspended sentence that had been imposed on you on 7 October 2013 for driving whilst disqualified was restored. On 6 March 2013, on six counts of driving while suspended, you were sentenced to a number of terms of imprisonment of up to 42 days.
31.On the same date, on offences of reckless conduct endangering life, you were sentenced to five months' imprisonment partially suspended with two months to serve. On the same day, you were also sentenced to a partially suspended period of imprisonment on a charge of negligent or dangerous driving while being pursued by police. Further, on 6 March 2013 you were convicted and fined $800 for intentionally damaging property, $300 for failing a drug test and on counts of using an unregistered vehicle, fraudulently using number plates and failing to answer bail. The matter was adjourned for 12 months.
32.On 17 December 2012 on counts of driving while suspended, using an unregistered vehicle and driving without L plates, you were convicted and fined $1,500. On 19 March 2010 on a count of robbery in the Children's Court, the matter was adjourned without conviction for a period of 12 months on the entry into a good behaviour bond.
33.Considering your prior convictions, you have relevant prior convictions for theft and for misuse of number plates. You have an old prior conviction for robbery. You do not have any prior firearms matters. You have a number of prior convictions for disqualified driving and failing to comply with orders, such as bail. The prior convictions against you show that you have been sentenced to a number of suspended sentences as well as actual sentences, yet you have continued to offend. In addition, your licence has been cancelled and you have been disqualified on a number of occasions, yet you continue to drive without the necessary licence. Your failure to respond to prior lenient dispositions increases your culpability for this offending.
Matters in Mitigation
34.In a comprehensive plea, your counsel put a number of matters in mitigation. First, you have pleaded guilty. You had indicated that you were prepared to plead guilty to the offences on the indictment relatively early. The matter was listed for trial at which time the prosecution discontinued a charge of armed robbery. The prosecution accepted that you pleaded guilty at the earliest opportunity, for which I give you full credit for. You have facilitated the course of justice and accepted responsibility for your conduct and obviated the need for a committal and trial.
Your Personal Circumstances
35.Your personal circumstances were set out on the plea and also are contained in three medical reports before me. You are now aged 25 and are of Lebanese extraction. Your mother is aged 60 and is living in Brooklyn – you have been her carer in the past. You have lived in the family home all of your life and are the youngest of six children.
36.One of your brothers died in a police incident in 2005, which traumatised you. Your father was killed outside the family home in 2011. You have two brothers who are presently in prison and your other two brothers live in Brooklyn with your sister living in Sydney.
37.You have a tragic family history that has involved the criminal justice system. There was a suggestion in one medical report that you may be using illegal substances as self-medication to cope with untreated anxiety and depression.
38.Your education has been limited. You entered a local Catholic primary school in Brooklyn, followed by the Bayside Secondary College for Years 7 to 8 and part of Year 9. You were expelled for misbehaviour and then went to the Kensington Community School briefly where you struggled academically and had the assistance of an integration aide. You failed to complete Year 10. According to the psychological report of Dr Cidoni, you are illiterate.[3] After leaving school, you worked for short periods in a fruit and vegetable market, as a furniture removalist and also in a mobile phone shop owned by one of your brothers’ friends.
[3] Exhibit 2 on the plea.
39.You had commenced a spray painting course at TAFE, but did not complete that. You had been receiving a carer's pension for your mother before this offending.
Intellectual Disability and Verdins
40.The key matter that was put on the plea is that you are suffering from intellectual disability and that under the principles of Verdins,[4] this calls for a reduction in sentence due to your lower moral culpability and is relevant to the type of sentence. Further, your intellectual disability is also relevant to whether a sentence of imprisonment for you would be more burdensome than for persons who did not have a disability.
[4]R v Verdins (2007) 169 A Crim R 581.
41.Before me were three relevant reports. In a report dated 7 May 2012, Mr Healey, psychologist, notes that he found that there was impaired functioning and, after the full scale IQ test, he put you in the bottom one percent of the population. He opined that you may be eligible for assistance through the relevant intellectual disability services.[5]
[5] Exhibit 3 on the plea.
42.In a report dated 1 March 2013, Dr Cidoni, psychiatrist, concluded that you suffer from mild intellectual disability and that this was likely to reduce your ability to cope and adopt to the circumstances of your imprisonment and you are likely to be vulnerable to the influence of other prisoners.[6] He noted that your impulsivity and poor judgement were associated with your intellectual disability and the use of drugs also contributed to disinhibition and impaired judgement. He indicated that you required treatment for this. He opined that at that stage in 2013, you were suffering from a major depressive disorder and anxiety in the form of post-traumatic stress disorder. Dr Cidoni was also of the opinion that you suffered from polysubstance abuse.
[6] Exhibit 4 on the plea.
43.You do not appear to have had any relevant treatment and Dr Cidoni, a psychologist, in her report dated 4 November 2016, recommends that you require treatment to maintain abstinence from drugs and that you require a case worker and psychological counselling.[7] Dr Cidoni also found that intellectual testing was indicative of extremely low capacity with a full scale IQ of 59 and opined that 99.7 per cent of your age-related peers would perform better. Her conclusion was that you were at a very low intellectual capacity. She said:
[7] Exhibit 2 on the plea.
"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.
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."
Extra-Judicial Punishment
44.Your counsel relied heavily on a submission that you sustained injury when the handgun discharged into your stomach and groin and that this amounted to extra-judicial punishment that ought to be taken into account in your favour. There is authority to the effect that, where an offender does sustain injury in the course of a criminal act, then this may be taken into account in mitigation of sentence. In this case, however, the evidence as to the extent of your injury is somewhat limited. You obviously did sustain a flesh wound as a result of the discharge of the firearm, however, you chose not to continue medical treatment after you were taken to hospital. You then told the psychologist that you were having some form of erectile dysfunction and your counsel relied on an ultrasound report.[8] The opinion is inconclusive and I was not assisted by any proper medical opinion as to whether, or how, any present condition is related to the earlier event. This case is a long way from cases where an offender sustains a major traumatic injury in the course of a crime.
[8] Exhibit 7 on the plea.
45.The prosecution accepted that there may be some injury and may be some humiliation. Having considered the material before me, and in particular in the light of the failure to fully identify whether and the extent to which there is any long-term complications of the discharge of the firearm, I give the matter only slight weight in the overall sentencing synthesis.
Sentencing Submissions
46.Your counsel strongly submitted to me that you had not previously had a sentencing disposition that emphasised your rehabilitation. In those circumstances, she submitted that you should be assessed for a justice plan as part of a combination sentence involving a period of imprisonment and a community corrections order with an attached justice plan. I had you assessed for a justice plan, and the relevant officer gave evidence before me as to the availability of services within the community. In fact, the officer indicated that you had previously been overseen by the Department of Health and Human Services because you had an intellectual disability, however, the Department had no current case file for you.
47.The report and the evidence from the relevant officer was that the Department was in a position to provide case management for you and also to have you referred to an appropriate agency to seek to get you into the workforce.
48.I had you assessed for a community corrections order, and you were described as being of high risk of reoffending, but otherwise suitable.
Competing Sentencing Submissions
49.The learned Crown prosecutor, after referring to a number of cases, submitted that notwithstanding the principles discussed in Boulton,[9] the overall offending here was too serious for a combination sentence to be within range. The prosecution did not contest that your moral culpability for your offending is to be reduced, or moderated, given your intellectual disability. Sentencing considerations of general deterrence and denunciation are to carry less weight accordingly.
[9] Boulton v The Queen [2013] VSCA 342.
50.In sentencing you, a very important consideration is your relative youth, however, on the other hand, considerations of protection of the community are also salient. This applies particularly given that you were using methylamphetamine at the time of the offending, and have been doing so since 2013, according to the medical report. You obviously need treatment to address your post-traumatic stress disorder, depression and drug addiction. You have undertaken some courses while in remand and are on the waiting list for a drug treatment course. I commend you for the actions you have taken so far.
51.You have now been in custody for 631 days. As such, there must be a risk of institutionalisation. Your transition back into the community will be a major challenge. It is at the heart of the sentencing dilemma before me.
Purposes of Sentencing
52.The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into the community.
53.In this case, your conduct over the relevant period was likely committed under the influence of drugs. This involved you stealing three motor vehicles, the third of which was with the use of a firearm. Being in possession of that firearm itself is conduct that must be utterly condemned and is utterly unacceptable in our community. Your judgement, however, was impaired by your use of illegal drugs and was in the context of your limited intellectual capacity and your relative youth. Right-thinking members of the community will, in those circumstances, understand that your moral culpability is reduced. They will also understand that given your prior convictions and appearances, protection of the community must also be a factor in a sentencing disposition as well as rehabilitation.
Conclusion
54.Having weighed the competing submissions and sentencing considerations, I accept that your moral culpability is to be reduced for this offending due to your limited intellectual capacity and youth – you are to be treated as a youthful offender. Rehabilitation into the community is an important consideration. Your intellectual disability, applying the principles of Verdins, is relevant to the sentencing consideration also. I accept that your intellectual disability makes imprisonment more burdensome for you.
55.I have given anxious consideration to whether a combination sentence involving a community corrections order and a justice plan would be in the interests of the community and satisfy all sentencing considerations. I have reached the conclusion that the seriousness of the offending here, and your drug addiction at the time, combined with your limited intellectual capacity, calls for a sentence of imprisonment with a non-parole period, rather than a combination sentence. You will remain eligible for disability services should the parole authorities choose to grant you parole. The protection of the community will be facilitated by such a sentence.
56.In order to facilitate your transition back into the community and having regard to all sentencing considerations and, in particular, your youth, I am proposing a longer than usual period during which you will be eligible for parole.
57.Mr Chaouk, could you please stand – you are sentenced as follows:
a)On the first charge of theft (of a motor vehicle), you are sentenced to nine months' imprisonment;
b)On the second charge of theft (of a motor vehicle), you are sentenced to nine months' imprisonment.
c)On the third charge of theft (of petrol), you are sentenced to seven days' imprisonment.
d)On the charge of armed robbery, you are sentenced to 24 months' imprisonment. This is the base sentence.
e)On the charge of possessing a firearm whilst being a prohibited person, you are sentenced to 12 months' imprisonment.
f)On the summary charge of dealing with property of which is suspected being the proceeds of crime, which is number plates, you are sentenced to one month imprisonment.
g)On the summary charge of contravening a bail condition, you are sentenced to seven days' imprisonment.
h)On the rolled up summary charge of unlicensed driving, you are sentenced to two months' imprisonment.
58.I direct that six months of sentence on charge 1, six months of the sentence of charge 2, and five months of the sentence of charge 5, be served cumulative on each other and on the base sentence.
59.I further direct that one month of the sentence of summary charge 17 be served cumulatively on the base sentence.
60.The total effective sentence is, therefore, a sentence of three years and six months imprisonment.
61.I direct that you serve a minimum period of two years before being eligible for parole.
62.I declare you have served 631 days pre-sentence detention.
63.I order that all your licences that you hold be cancelled and you be disqualified for driving for a period of three years.
64.I declare, pursuant to section 6AAA of the Sentencing Act 1991 (Vic), that had you not pleaded guilty, I would have imposed a sentence of five years imprisonment with a non-parole period of three years.
65.I make the ancillary orders sought by the prosecution, being the compensation and disposal order. The compensation order requires you to pay $50 to the United Service Station for the petrol.
66.Mr Chaouk, I have got to explain the sentence to you. I have sentenced you to a total effective sentence of three and a half years' imprisonment. I have ordered that you be eligible for parole after two years. I have cancelled any licence you have, and I have disqualified you for three years. I have also declared that you have already served 631 days by way of pre-sentence detention.
67.If you get caught driving a car again without a licence, you are going to be doing significant time in prison, regardless of any other crimes that you might be involved with. Do you understand that?
68.OFFENDER: Yes, Your Honour.
69.Thank you Ms Morgan for your submissions and Ms Parkes. We will adjourn temporarily.
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