Director of Public Prosecutions v Charif

[2023] VCC 1989

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

  Revised
(Not) Restricted
Suitable for Publication

CR 22-01585

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAMSEY CHARIF

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2023
DATE OF SENTENCE:	26 October 2023
CASE MAY BE CITED AS:	DPP v Charif
MEDIUM NEUTRAL CITATION:	[2023] VCC 1989

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW- Sentence
Catchwords:  Aggravated Burglary; Theft; Cultivation in Commercial Quantity;
  Cultivation Simplicita; Aggravated Offence of Exposing
  Emergency Worker to Risk by Driving; Damaging Emergency
  Vehicle; Criminal Damage; Prohibited Person Imitation Firearm;
  Breach of Bail; Odyssey House
Legislation Cited:                 Sentencing Act 1991
Cases Cited:   Akoka v The Queen [2017] VSCA 214; Worboyes v The Queen
[2021] VSCA 169; Biba v The Queen [2022] SVCA 168
Sentence:  Total effective sentence of six years and two months with a non-
  parole period of four years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Teo	Office of Public Prosecutions
For the Accused	Mr A. Jackson	Theo Magazis Lawyers

HIS HONOUR:

1Ramsey Charif, on 18 October I specified a maximum total effective sentence that I would impose if you pleaded guilty to nine offences on two indictments and three summary offences.

2The total effective sentence that I indicated was six years and two months with a non-parole period of four years.  You immediately or quickly accepted that sentence indication and pleaded guilty on arraignment that afternoon.  I heard your plea today formally and I have taken into account all that was said and written by your counsel in the sentence indication.

3The submissions on the plea were by and large adopted from his written and oral submissions at the sentencing indication.  I have revisited my reasons that I gave at the sentence indication hearing.  I will, in these reasons for sentence refer to and repeat much of what I said in my reasons for the sentence indication.

4

The offending on indictment M12111159 occurred first in time on

30 September 2021.  You along with the co-accused went to a house in Deer Park.  It seems little doubt that you knew that in the house there was a crop of cannabis growing hydroponically and under lights.  Your intent was to steal the crop.  The person, a Mr Fung, who resided at the house and cultivated the crop was not present when you and the co-accused turned up.  Much of your conduct and what was said was recorded on security cameras or the like at the house.  Mr Fung was able to view what was going on via his phone which gave him access to his security cameras.

5You and the co-accused had planned to pretend to be police officers conducting an official raid on the house.  You had police insignia and lights in your car, indeed your neighbours thought that you were police when they came outside.  You told them to go back inside.  To one of them you waved around an imitation firearm.  It is this weapon that elevates your crimes to an aggravated burglary.  Once you had ascertained that the front door was not going to be opened in response to you saying it was police, you then reverted to old-fashioned means and just broke into the house using a crowbar.  You and the co-accused cut down the 19 cannabis plants and stole them.

6As I have indicated, your plea of guilty after the sentence indication on this indictment was a plea of guilty to an aggravated burglary and theft and the summary offence of committing indictable offence while on bail, as I understand it.

7You were arrested on 6 October and in the car that was used for the aggravated burglary police found other police-type paraphernalia which is relevant to what was seen and used at the aggravated burglary.  An imitation handgun was also found in the car at that time.  Your co-accused in these offences was arrested much later, in March of 2022.  He made admissions and gave an undertaking to give evidence against you.  He was dealt with in the Magistrates' Court for these offences and others and received time served and a Corrections Order.

8Pausing there, this aggravated burglary does not have many of the more concerning aspects such as confrontation and violence that is seen in this court too often with respect to aggravated burglary charges.  Rather the concerning features here are the pretence of being police.  Also, the weapon that makes it an aggravated burglary was a frightening one, though it remains true it was not a real gun, but an imitation.  The appellate courts have been clear aggravated burglary and the subsequent crimes once inside the house are serious crimes.  Here the victim was not present and was committing serious crimes himself. 

9This does impact on the level of moral culpability, but that said, crimes committed against other criminals are not merely to be dismissed.  The neighbours in this case, brought outside into the street and once there, they were frightened.

10The second set of offences occurred some days later on 6 October 2021 and they are on any measure more serious in my view.  The police had identified your car from the aggravated burglary, and there was a coordinated investigation involving surveillance and then a plan to arrest you via the Special Operations Group.  You were seen driving to and remaining for about 40 minutes at a factory in St Albans on the morning of 6 October.  You were then followed from there back to an associate's residence.  You and another man took items from your car inside the house and back out.  You then went to drive out of the property.  The SOG operators who were nearby keeping you under surveillance, then drove one of their police cars, being a four-wheel drive or a large vehicle to block you in the driveway.  The police activated lights and sirens.

11The summary which was tendered at the sentence indication and again on the plea set out what happened in the driveway and thereafter.  What it says is that you got back into your vehicle and drove up the driveway to exit.  As you approached the boundary of the property a SOG operative 189 drove his unmarked Toyota Landcruiser with lights and sirens activated into the driveway directly towards the car that you were in, and you ended up facing each other 50 centimetres apart.  You then took your hands off the steering wheel and put your hands in the air.

12Two of the SOG operators got out of the car and approached your vehicle.  They were fully kitted out in the SOG equipment being helmets, body armour and other items making it plain to anyone they were police officers.  You then lowered your hands and drove your car at the Landcruiser striking the front bull bar and attempting to force your way past.  Operator 189 was jolted in his seat, he had to apply the brakes to prevent you from moving the car.  The impact caused damage to the bull bar.  That is Charge 4 on the indictment.

13At this point a second SOG vehicle, a Land Rover driven by Operator 55, drove in and parked next to the Landcruiser to further prevent you from exiting the property.  You then reversed steering the rear of your car through the wooden boundary fence of the house that you had been at, at Douglas Avenue, St Albans.  You then were able to enter into the next-door neighbour's property, it was a vacant block.  It had secure temporary fences and wooden fences around it.  You were able to straighten your car and you faced towards the temporary fence.  Operator 189 followed you through the fence into 8 Douglas Avenue, in his car, and attempted to apply some pressure to the front of your car from the Landcruiser by driving at the driver's door, making sure that there were not injuries of course.  But you then took your hands again off the steering wheel and put them in the air.  This caused the operator to cease pushing your car. 

14This gave you an opportunity to regain traction with your car and you accelerated again towards the temporary fencing and towards Douglas Avenue.  Whilst that had occurred Operator 55 had driven the Land Rover back onto the street and saw that Operator 189 had followed you.  Operator 55 then endeavoured to place his car against the temporary fence and to activate again the blue and red flashing lights.  What you did was to drive straight towards the temporary fence and Operator 55's Land Rover driving through the fence and colliding with Operator 55 and the car.  The impact caused significant damage to the front bumper bar, bonnet and right front guard of the car.  This gave rise to two offences.  A serious one of aggravated offence of recklessly exposing an emergency work to risk by driving; and Charge 5, which was again, damaging an emergency vehicle.  What then occurred was Operator 55 maintained his position and Operator 189 drove the Toyota alongside your car. 

15

Again, they observed you raising your hands off the steering wheel.  Other SOG operators approached you on foot.  You then again reversed away from

Douglas Avenue, across the entire length of this vacant block striking an easterly fence at high speed and travelling into a backyard of an innocent citizen who lived in Moffat Street.  You collided with the carport there, causing extensive damage to that carport.  It was in effect destroyed.  This gave rise to a charge intentionally damaging property.  You then got out of your car, scaled over two fences, passing to the rear of houses in Moffat Street.  You then ran to the front of one of them in Moffat Street, no.3 and attempted to hide.  You were observed there by Operator 39.  You were then detained with Operators 39 and 159 using their tactical dogs to ensure that you did not escape any further.  You were bitten on your body and scrotum by the dogs.  You were hospitalised, due to the injuries that you sustained in the arrest, you have recovered, but I take this into account. 

16Again, this is serious offending, but more importantly it is dangerous criminality.  Fortunately for you and the SOG operatives there were no injuries.  Police vehicles were significantly damaged and a carport of the neighbour's property was destroyed.  Endeavouring to escape arrest by ramming police vehicles like this is to be condemned and the punishment must be of a kind that deters others from such dangerous conduct.  After your arrest the police searched the premises where you had driven from and they found 33 cannabis plants weighing 6 kilograms or thereabouts.  At the factory where you had been earlier, the police searched and a much bigger, larger cultivation of cannabis was discovered, being 340 plants weighing over 87 kilograms. 

17This is well beyond the threshold for a commercial quantity.  While it cannot be said exactly what your role and interest in the commercial quantity crop was, it remains the case that all those connected with a commercial cultivation attract the sentencing purposes of general deterrence as well as punishment.  The same applies for the 33 plants weighing 6 kilograms in the respect of it being uncertain as to your interest and role, but deterrence to all connected with cultivation must be part of the sentence that is imposed.

18

Following your arrest, and after your hospitalisation, you were remanded, held in difficult COVID affected remand prisons until you were bailed on

22 December 2022.  You then went to Odyssey House for two months before going to another rehabilitation facility for a further four months.  Counsel has made submissions at the plea that this six–month period was where your liberty was restricted and should attract the principles articulated in Akoka[1]. I accept that submission.  That period of time was your first engagement with intensive drug rehabilitation, notwithstanding a lifetime of drug use and addiction.  I was told your progress has faltered and you are again in custody of late, facing new charges.

[1]Akoka v The Queen [2017] VSCA 214.

19You have a long and concerning criminal history.  I have not descended again into details, but there have been many, many court appearances since the late 1990s with many gaol terms for relevant offences.  I have considered your prior history, you are not to be repunished for those matters, but it does impact upon your prospects of rehabilitation and elevates the need for deterrence to you.  Your counsel emphasised that your earliest time in custody was at the age of 17 when you were held in the remand yards at Pentridge.  Ultimately after six months the charges did not proceed.  This time in adult gaol, when you were 17 years old and in the circumstances, the notorious remand yards in Pentridge, all this left its mark.  You lost your apprenticeship and while unemployed and unsettled your drug addiction took hold.

20Your mother tragically died in a motor vehicle accident also when you were 17 years old.  Your upbringing was far from ideal, but you did remain close to your mother and her death was a very unsettling experience that also left its mark.  Your father who you have remained generally in contact with and more so in recent times, he left recently for a trip back to Morocco.  He was there when the devastating earthquake struck.  You have not heard from him since and fear for his safety and health.  Prison will be harder for you because you do not know of his welfare.

21I note that you are now 44.  You are in custody on remand, and of course facing a lengthy gaol sentence for these offences that were committed in September and October 2021.  You have a young daughter who is important to you.  You were seeing her fortnightly until recently.  You have established another relationship.  Your rehabilitation depends on your resolve and capacity to put drugs behind you.  The only tool the court has is to fix a period of potential parole.  You have had parole periods set before and I understand fully the issue for you, or your concern is whether you will be released on parole.  That decision is for others, not the court, but I kept well in mind that you may have to do each and every day of the head sentence that I impose I must ensure that it is proportionate to the offences that you committed.

22As to other mitigatory matters, your plea of guilty even at the late point that it was given is of benefit to the criminal justice system and it is of benefit to witnesses.  The Court of Appeal in Worboyes[2] made clear a plea made while the court lists are under strain due to the pandemic must receive an augmented benefit.  While the trial list is much improved you sought a sentence indication and have pleaded guilty on the basis that any sentence would include an augmented benefit and the Court of Appeal decision in Biba[3] remains the law thus I have allowed the augmented utilitarian benefit for your plea, on the basis that you had an expectation of a Worboyes benefit.

[2]Worboyes v The Queen [2021] VSCA 169.

[3]Biba v The Queen [2022] SVCA 168.

23There must be a proper application of the principle of totality, though this is to be applied with consideration of s16(3D)[4] which requires cumulation for Charges 3, 4 and 5, unless otherwise ordered.  I have given consideration to the requirements of cumulation.  I have also ensured that the sentences that I have imposed are not an outlier by reason of full cumulation. In other words, I otherwise order that the sentences have some aspects of currency as well as cumulation. 

[4]Sentencing Act 1991.

24I further indicate that had you pleaded not guilty, I would have imposed a total effective sentence of eight years and a non-parole period of six.  I make that announcement before moving to the particular sentences, because when I gave an indication of the total effective sentence for all offences, it was a global sentence.  I now make order which include sentences of imprisonment for the indictable offences and the summary offences.

25Commencing with indictment M12111148.  It was second in time, but contained the most serious offences.

26Charge 1, cultivation in commercial quantity, is sentenced to be imprisoned for two years.

27Charge 2, the cultivation simplicita as it is called, nine months.

28Charge 3, aggravated offence of exposing an emergency worker to risk by driving, two years.

29Charge 4, damaging an emergency vehicle, 12 months.

30Charge 5, damaging an emergency vehicle, 16 months.

31Charge 6, criminal damage, eight months.

32Charge 7, being prohibited person imitation firearm, 12 months.  And on the summary offence connected to that strangely of committing an indictable offence while on bail, that is one month.

33So, moving to the cumulation on that indictment and getting a total effective sentence before moving to the second indictment.  Charge 3 is the base sentence.  It is two years or 24 months.

34I order that 10 months of Charge 1, two months of Charge 2, six months of Charge 4, 10 months of Charge 5, three months of Charge 6 and six months of Charge 7 be cumulative upon each other and upon the base sentence on Charge 3.  That gives a total effective sentence in respect to that indictment of five years and one month or 61 months.

35In respect of indictment M12111159 for the aggravated burglary and theft there is an aggregate sentence of two years and four months.

36For the breach of bail offending, there is a one month upon that for the impersonating a police officer, three months' imprisonment.

37I order that one month of the impersonating a police officer by cumulative upon the aggregate sentence for the aggravated burglary and theft.  That gives a total effective sentence on that indictment of two years, five months or 29 months.

38I then order of that 29 months on that indictment, that 13 months of it be cumulative upon the total effective sentence that I have imposed on the other indictment and summary offences.

39That gives a total effective sentence of 74 months.  When rendered into years and months, it is six years and two months.  And I fix a single non-parole period of four years.  I indicate that, as I have, 6AAA, the sentence would have been eight years with a minimum of six.

40You have served a period of time in custody, that has been reckoned or calculated as 444 days.  This figure having been reckoned, I now declare that 444 days as part of the sentence that I have just imposed and I will cause this declaration to be entered into the records of the court, so the prison authorities are left in no doubt that you have done 444 days of the sentence I have just imposed.  Is there anything else?

41MR TEO:  Charge 3, Your Honour, is a serious motor vehicle offence and carries a mandatory 24 months, licence.

42HIS HONOUR:  Yes.  How much was it again?

43MR TEO:  A mandatory, 24 months minimum.

44HIS HONOUR:  Yes.  I will impose the mandatory 24 months' licence disqualification on Charge 3 was it?

45MR TEO:  Yes, Your Honour, the aggregate.

46HIS HONOUR:  Charge 3, thank you, yes.  And there is the disposal that's been handed to us?

47MR TEO:  So, Your Honour that's in relation to the indictment ending in 148.

48HIS HONOUR:  Yes.

49MR TEO:  It's just relay cables and cannabis.

50HIS HONOUR:  Yes.

51MR TEO:  In relation to the other indictment, given there were personal objects inside the vehicle they will be discussed with Mr Jackson's instructor as to what is to be retained to Mr Charif, or what's sought to be disposed of.

52HIS HONOUR:  You wait on that.  Yes.  You couldn't have any trouble with this, could you?

53MR JACKSON:  I don't have any trouble with this disposal order Your Honour, but as my friend says if we can - - -

54HIS HONOUR:  Yes, no worries.  Yes, we'll wait on the other one.  All right, I make that disposal, that's disposal order's just relating to things that were connected to the cannabis, Mr Charif, so I find out.

55MR JACKSON:  Yes.

56HIS HONOUR:  But Mr Jackson will talk to you about the other applications made regarding items.  All right.  Is there anything further?

57MR JACKSON:  No, Your Honour.

58HIS HONOUR:  And the maths added up?  You checked it?  And re-checked it with more mathematically intelligent people than me and it seems to be right?

59MR JACKSON:  I've had a look and I agree that it comes to 61 months.

60HIS HONOUR:  And then 13.

61MR JACKSON:  And then 13, yes.

62HIS HONOUR:  That's 74.

63MR JACKSON:  Yes.

64HIS HONOUR:  That's six years and two months.

65MR JACKSON:  Yes.

66HIS HONOUR:  Thank you.  All right.  Thank you very much for your assistance.  He can stay on the screen and talk to you if you want to, you don't have to, but if you - thank you.

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