Director of Public Prosecutions v Cheaib

[2019] VCC 235

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02052

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICK CHEAIB

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2019
DATE OF SENTENCE:	5 March 2019
CASE MAY BE CITED AS:	DPP v Cheaib
MEDIUM NEUTRAL CITATION:	[2019] VCC 235

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Attempted armed robbery; Offender abandoned robbery at early stage; Co-offender gave undertaking to assist authorities; Parity; Totality.

Legislation Cited:                   Sentencing Act 1991 (Vic)
Sentence:  Three years imprisonment. Non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L Cameron	Office of Public Prosecutions
For the Accused	Ms H Bate	Paul Vale Criminal Law

HIS HONOUR: 

1Nicholas James Cheaib, you have pleaded guilty to one charge that at Dandenong North on 22 February 2018 you attempted to rob Jim Maragos of certain money and at the time had with you an offensive weapon, namely a machete.

2Mr Cameron, who appeared on behalf of the Director of Public Prosecutions, tendered an amended summary of prosecution opening for plea which sets out the details of your offending.  Briefly put, that offending involved the following:

3At about 4.30 am on 22 February 2018, you and your co-offender, Mehmet Mehmet, drove to the corner of Fillmore Road and Gatley Court in Dandenong North and lay in wait for your victim, Jim Maragos, to drive his vehicle out of his property onto the street.

4Just on 6.10 am your co-offender, Mr Mehmet, armed with an imitation shotgun, and you, armed with a machete and wearing a balaclava, approached the victim from behind as he stood on the footpath locking his front gate.  Mr Mehmet pushed the imitation shotgun into the victim's ribs and yelled "don't move, don't move."

5Not knowing the firearm was imitation, the victim feared for his and his family's lives, believing that you and your co-offender were trying to gain entry into his house and rob him and his family.  Mr Mehmet again shouted "don't move."  He then yelled, "Nick, Nick, Nick."

6As he did so, you had already started to run from the scene heading north towards Hill Court, approximately 100 metres away.  You discarded your machete and gloves on the footpath outside the residence at 6 Hill Court.  You threw your jumper onto the roof of the residence at 5 Hill Court and after speaking with a witness, Mr McGinnis, you jumped over a rear fence and fled the area.

7Meanwhile, the victim and Mr Mehmet fell to the ground and fought with each other for several minutes.  The victim tried to yell for help and punched and grabbed at Mr Mehmet, who in turn punched the victim and pinned him to the ground.

8The fight ended with Mr Maragos saying "if I let go, are you gonna leave?"  Mr Mehmet responded "yes, brother, I'll leave."  Mr Maragos then let go and Mr Mehmet immediately ran to his car and drove away.  He left the imitation shotgun, his wallet containing identification, a glove, shoe and a sock at the scene.  These events were witnessed by a number of neighbours as well as Mr Maragos' wife, Sophie Ghougassian.

9Mr Maragos attended the Dandenong Hospital later that day and was found to have sustained superficial lacerations to his knees, his left knuckle and his right elbow.

10On 7 March 2018, Mr Mehmet voluntarily attended Dandenong Police Station where he was arrested and interviewed.  During that interview he made admissions to assisting and carrying out the robbery with you with the intention of stealing up to $15,000.

11On 1 July 2018, Mr Mehmet made a statement to police in which he implicated you as his co-offender.  In that statement he explained that you had provided the information that the victim was likely to be in possession of $15,000 in cash and you offered him $2,000 if he helped you rob him.

12He said in that statement that you rented the vehicle that was used in the offending.  That you provided the imitation firearm for him and the machete for yourself.  He stated that you had told him to run up behind the victim with the gun and that you would then take the lead.  In fact when that was done, you ran away, which he said shocked him.  Mr Mehmet stated that he then wrestled with the victim but was able to escape.

13On 14 September 2018, Mr Mehmet pleaded guilty to this offence in this court before his Honour Judge Tinney, and was sentenced to a term of two years imprisonment in relation to the charge of attempted armed robbery, and 12 months' imprisonment in relation to the charge of a prohibited person in possession of a firearm, three months of which was to be served cumulatively.  The Total Effective Sentence imposed was 27 months' imprisonment.  A non-parole period of 13 months was fixed.

14At the plea Mr Mehmet gave an undertaking to assist the prosecution by giving evidence in accordance with the statement he made on 1 July 2018.  In sentencing Mr Mehmet, his Honour indicated that he would give him a "very substantial discount" having regard to his undertaking.

15On 8 May 2018 you were arrested and in your interview you denied any role in this offending.  You asserted that you had been at work on the morning of the robbery.  You suggested that your co-offender, Mr Mehmet, was "very manipulative and very smart and very well calculated".  You also suggested that the person who committed the offence with Mr Mehmet might be his brother.

Victim impact statements

16Turning to the impact of your offending on the victims, Mr Maragos and his wife, Ms Ghougassian, have both made statements which were read to the court by the prosecutor.

17Clearly your attack has had a lasting impact on Mr Maragos.  He describes being on edge all the time and having to relive the experience of being confronted in the way that he was each time that he leaves his property.  He particularly fears for his wife and children and no longer feels safe and secure in his own home.

18Ms Ghougassian indicates in her statement that she has been determined to try and not let what you did get the better of her and her family.  Clearly, that has not been easy.

19You should understand that the substantial impact of your offending is an important consideration to be taken into account in formulating the sentence that must be imposed.

Personal Circumstances

20Turning to your personal circumstances, you were born on 13 January 1988.  You were 30 years of age at the time of the commission of this offence.  You are now 31.

21As Ms Bate, who appeared on your behalf, put it, you had a challenging childhood.  Your parents separated when you were six years of age, and your elder brother who was four years older than you went to live with your father whilst you remained with your mother.

22You grew up around the Morwell area.  Unfortunately your mother suffered from some very serious health problems, including cancer, and the task of caring for her would often fall to you when she was undergoing treatment.  Your mother's finances were often precarious.  You did not have stable accommodation and estimate that you lived in at least 14 different places over a six-year period.  Your schooling was always being interrupted by that instability, for example, in one year you estimate you attended five different schools.  That lack of stability caused you to struggle at school, particularly in making friends, although you believe you performed reasonably well academically.

23You left school during Year 10 and started working for Red Rooster.  By the age of 18 you were appointed an Area Manager responsible for four Red Rooster restaurants.  You went with your mother when she relocated to Melbourne and obtained employment at Coles in Clayton, where you became an assistant manager.  You worked there for two and a half years before becoming a Business Development Manager responsible for four stores at Boost Juice.  You worked there for approximately three years, and you then worked for Repco also as a Business Development Manager.  Most recently at Wurth, as an Automotive Sales Representative and District Manager.  On the strength of that history, Ms Bate submitted and I accept, that you have a solid work history and a strong work ethic.

24Your descent into criminal activity, and now prison, is largely explained by your escalating drug abuse.  You used cannabis from a young age, and from the age of 18 or so you began using drugs such as amphetamines and MDMA recreationally.  As you got older you moved on to using methamphetamine and would sometimes engage in episodes of gambling uncontrollably.  Although you were able to function at some level whilst still abusing methamphetamine, you acquired significant debts which you say provided the motivation for this offending.

25The criminal history alleged against you is, I accept, limited to driving and minor drug offences, all dealt with during 2017 when you were 29 years of age.

26However, on 22 February 2016, you committed the offences of extortion with threat to destroy property, two counts of damaging property and of street level trafficking in a drug of dependence.  You were arrested for those matters on 19 July 2016 and remanded in custody until you were bailed on 10 August 2016.

27On 15 December 2017, you pleaded guilty to those offences in this court before his Honour Judge Wischusen. His Honour deferred sentence pursuant to s.83A of the Sentencing Act 1991 (Vic). These offences were committed during the currency of that deferral on 22 February 2018. You were finally arrested in respect of both this matter and the 2016 matters on 8 May 2018.

28On 15 June 2018, you were sentenced to a Total Effective Sentence of nine months' imprisonment for the 2016 matters. At that time a declaration under s.18 of the Sentencing Act noted that you had already served 60 days of that sentence by way of pre-sentence detention.  That sentence expired on 13 January 2019.

29Ms Bate submitted that applying the principle of totality, I should have regard to the fact that whilst there is only 40 or so days directly referrable as pre-sentence detention in respect to this matter, I need also to take into account the fact that you have been in custody overall for more than 290 days.  That is particularly important she argued, because in effect this is your first term of imprisonment.

30One concerning feature of this matter was the fact that when you were ultimately interviewed, you not only denied involvement but you suggested that your co-offender's brother, whom you knew to be innocent, was likely responsible for the robbery.  Moreover, you maintained that you would contest this matter until a witness statement from the forensic scientist was received confirming that your DNA was present inside one of the gloves that had been discarded outside Mr McGinnis' house, not far from the scene of the attempted armed robbery.  Your plea of guilty was indicated approximately a week before the contested committal was due to commence.

31Balanced against those early denials, was the fact that you elected to give evidence on your own plea.  About three weeks before the plea, you wrote a letter of apology setting out how you felt about what you had done.  You acknowledged the truth and accuracy of that document on oath.  To my observation you seem to have now understood the suffering you have caused, you acknowledged responsibility for your offending and appeared remorseful.

32You were also prepared to acknowledge that you had betrayed the trust of your girlfriend at that time by using the information she had given you to select the target, Mr Maragos, for this armed robbery.  You also explained that once you looked directly at the complainant at the beginning of the attack, you immediately regretted arranging to rob him and that was why you ran away.

33You said that with the support of your family you have applied yourself productively in custody.  You have been abstinent from drugs and are looking forward to going back into the community without abusing drugs and offending.

34Aside from your own letter, a number of personal references were tendered on your behalf, including from your mother, your father, and brother.  Indeed, many of your family and friends were present to show their support for you in court for the plea.

35All of the references confirm that you have what I regard as a very high level of support from family and friends.  In my view that support enhances your prospects for rehabilitation.  Ms Bate argued those prospects should be characterised as being very good, particularly having regard to your progress in custody.  For example, she highlighted the fact that you have apparently gained 42 kilograms in weight since you were remanded.

36On the question of parity, Ms Bate conceded that you have been responsible for hatching the scheme to commit this offence and for enlisting your co-offender's participation.  It seems that your co-offender's account was largely accurate.  She argued, however, that features such as your more limited criminal history and the fact that you had abandoned the offending shortly after it commenced, meant that your position was quite different from Mr Mehmet.  In those circumstances it was submitted that it would be open to impose a term of imprisonment in combination with a Community Correction Order.

Prosecution Submissions on Sentence

37In response, Mr Cameron submitted on behalf of the prosecution, that the following factors bore on the seriousness of your offending:

(a)       Your conduct, while relatively unsophisticated, was planned;

(b)       You wore a disguise (balaclava) and gloves;

(c)        The offending was committed in company with your co-offender Mr Mehmet;

(d)       The offending was committed against a vulnerable victim, who was attacked on the street outside his home in the early hours of the morning;

(e)       Both you and the co-offender were armed, you with a machete and Mr Mehmet with an imitation firearm;

(f)         The victim was fearful for his life, and suffered injuries, albeit relatively minor as a direct result of the assault by Mr Mehmet; and

(g)       The offending took place over several minutes and was not momentary, though it was accepted you extricated yourself from the offending earlier than Mr Mehmet.

38Mr Cameron submitted that whilst the principle of totality was an important consideration, this offending nonetheless merits separate punishment from that imposed for the offending of February 2016.

39On the question of parity, he submitted that there was considerable overlap between your circumstances and that of your co-offender Mr Mehmet. The most significant distinguishing feature was clearly the fact that your co-offender provided a statement to police and undertook to give evidence against you. On that basis his Honour Judge Tinney had allowed a "very substantial" sentencing discount.

40Mr Cameron, however, recognised during the course of discussion that you had ceased your offending and run away from the scene very shortly after the offending had commenced,  whereas your co-offender had remained and fought with the complainant.  He submitted that you ought to have recognised that there was every possibility such a confrontation might occur. Accordingly, you bore some responsibility for the fight that your co-offender engaged in but he quite fairly suggested that this did not aggravate your position greatly.

41He further submitted that "the gravity and prevalence of such conduct increases the importance of denunciation and just punishment as sentencing considerations, and in particular, renders general deterrence the primary purpose for which sentence is imposed."

42Mr Cameron acknowledged that it was open to find that you had shown some genuine remorse albeit that you had initially denied the offending. He also acknowledged that your limited criminal history, the support of your family, and the work that you had done in custody indicated that your prospects for rehabilitation were at least "reasonable".

43Finally, he submitted that the only appropriate penalty open in your circumstances was the imposition of a term of imprisonment fixed with a non-parole period.

Findings

44As to my findings, it seems to me that your descent into methamphetamine abuse and criminality occurred for you relatively late in life.  Although your criminal history is limited, it certainly escalated into very serious offending very quickly.  Now, there is much to suggest that you can reclaim your life.  Your plea of guilty, your remorse, the support of your family, the work that you have done in custody, your previous solid work history all point to you having very good prospects for rehabilitation. Accordingly, I accept Ms Bate's submission that I should sentence you on that basis.

45It is also, I think, a very unusual feature of this offending that having planned the crime and started to carry it out you then fled. You do, in my view, bear some limited responsibility for the further assault and distress caused to Mr Maragos after you left the scene, but as Mr Cameron acknowledged this should not aggravate your position greatly.

46That said, I accept the prosecutor’s submissions as to the matters that bear on the seriousness of this offence.

47It is, it should be steadily born in mind, a crime which is punishable by a maximum term of imprisonment of 20 years.  What you did has had a lasting impact on the victims and that is a matter that must weigh heavily in formulating the sentence imposed.

48I am unable to accept that it is appropriate to impose the same disposition as that which was imposed on Mr Mehmet, where he received a substantial reduction in sentence by reason of his preparedness to assist the authorities, in prosecuting you.

49Your role in selecting the target of this robbery, the breach of trust that involved, and in arranging and carrying out the attempt, requires substantial emphasis on general deterrence. In my view, only a sentence of imprisonment with the imposition of a non-parole period would adequately achieve that sentencing purpose and serve to deter others.

50In imposing sentence, I am mindful that you have just served another term of imprisonment of 9 months. Although that is a separate matter, in attempting to apply the principle of totality to your circumstances, which include the fact this is your first jail sentence, I will reduce the sentence imposed somewhat to reflect the fact that you have lost an opportunity for any portion of the overall sentences imposed, to be served concurrently.

51Mr Cheaib, would you mind standing, please. 

52On the one charge of attempted armed robbery, you will be convicted and sentenced to a term of imprisonment of three years. I will fix a non-parole period of 18 months. I will make a declaration under s.18 of the Sentencing Act that you have served 51 days of that sentence by way of pre-sentence detention.  I cause that declaration to be noted in the records of the court.

53I will also declare that but for your plea of guilty, I would have sentenced you to four years and three months, with a non-parole period of two years and nine months.  I will direct that that declaration also be noted in the records of the court.  Please just take a seat, Mr Cheaib.

54Mr Cameron are there other orders that need to be made for the purposes of finalising this matter?

55MR CAMERON:  There was just the order for disposal of the machete, Your Honour.

56HIS HONOUR:  Yes.  I will make that order if your instructor has not already provided it.  I will ask that that be done.  Are there any other matters arising, Mr Cameron?

57MR CAMERON:  No, Your Honour.

58HIS HONOUR:  Ms Salter, are there any matters arising from those sentencing orders?

59MS SALTER:  No, Your Honour.

60HIS HONOUR:  Thank you.  Mr Cameron, I have made the order for the disposal of the machete.  If there are no other matters, I will stand down.

61MR CAMERON:  There are no other matters, Your Honour.

62HIS HONOUR:  At 10.30 please.

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