Director of Public Prosecutions v Dayoub
[2021] VCC 1219
•26 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR 21-01349
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM DAYOUB |
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JUDGE: | Her Honour Judge Brimer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 August 2021 | |
DATE OF SENTENCE: | 26 August 2021 | |
CASE MAY BE CITED AS: | DPP v Dayoub | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1219 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence after plea of guilty – robbery – false imprisonment – assault – committing an indictable offence on bail – moral culpability – drug use since 15 years – general level of intelligence – communication challenges – favourable prospects of rehabilitation – family support – whether ‘time served’ is appropriate – combination sentence
Legislation Cited: Bail Act 1977(Vic) s30B; Crimes Act 1958 (Vic) s75; Sentencing Act 1991 (Vic) ss 6AAA, 9, 44(1); Summary Offences Act 1966 (Vic) s23
Cases Cited:DPP v Dalgliesh (2017) 262 CLR 428; R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence of nine months' imprisonment; community correction order of two years to commence upon release from prison
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Malobabic | OPP |
| For the Offender | Ms M Sargent | Bowler, Man & Co |
HER HONOUR:
Introduction
1Adam Dayoub, you have pleaded guilty to one charge of robbery, contrary to s75 of the Crimes Act 1958, and one charge of false imprisonment contrary to the common law. The maximum penalty for robbery is 15 years' imprisonment. The maximum penalty for false imprisonment is 10 years.
2You have also pleaded guilty to two related summary offences; one charge of assault contrary to s23 of the Summary Offences Act 1966 and one charge of committing an indictable offence on bail, contrary to s30B of the Bail Act 1977. The penalty in respect of the first summary offence is three months' imprisonment or 15 penalty units. The penalty for the second summary offence is three months' imprisonment or 30 penalty units.
Circumstances of the offending
3
I will summarise briefly the circumstances of your offending. On Thursday
22 October 2020 your co-offender, Ms Ayse Laz, contacted the victim over Facebook requesting a hair appointment. The victim is a hairdresser. He offered a mobile hairdressing service out of his wife’s Honda car.
4After exchanging messages, and speaking on the phone, Ms Laz said she was desperate for a hair appointment and asked the victim to attend her home in Coolaroo late on the night of Friday 23 October 2020. Ms Laz kept the victim waiting outside and he decided to head home.
5The next day, Saturday 24 October 2020, Ms Laz contacted the victim again, requesting that he attend her home. The victim agreed but said he wanted to be paid in cash. After receiving a text message from Ms Laz confirming she had the money ready, the victim arrived at approximately 1 pm. He was asked to wait outside for 10 minutes, as Ms Laz said she was at the shops. The victim saw another person, Ms Pinar Koc, get out of a taxi and called out, asking if she had a hair appointment. The victim went to the front door and was greeted by Ms Laz. He was taken into a room at the front of the house, where he saw a CCTV camera. He asked if Ms Laz had payment ready. When she said no he returned to the car to wait.
6At approximately 2 pm, while he was waiting in his car, the victim saw a black Holden Commodore park behind him. You got out of the car and went into the house. After you entered the house the victim received a Facebook message from Ms Laz telling him the money was ready and to come inside. He left his hairdressing equipment in the car, was greeted at the door by Ms Laz's mother and taken back to the bedroom he had been in previously. When he walked into the room you, Ms Laz and Ms Koc were standing together, then you and Ms Laz both left the room.
7You returned a short time later and shouted at the victim, telling him to 'sit down'. You demanded money. The victim held his hands up. He had his car keys in his right hand and his mobile phone in his left hand. He told you he has kids and he begged you to let him go. You replied, 'No, you have money, bring it. You have money, give it. You have an account'.
8You took the victim's keys and mobile phone. You gave the keys to Ms Laz. The victim tried to get away, but you stopped him and forced him back into the room, saying 'get back to the room'.
9You then grabbed a knife from a nearby vanity table and held it towards the victim, saying, 'Get back to the room. If you move I’m going to' - and made a stabbing motion with the knife towards the victim. The knife was a large kitchen knife, approximately 30 centimetres long. The victim sat down, terrified.
10You told the victim to unlock his phone while pointing the knife towards him. You looked for banking applications and put the knife down on the table. You used your own phone to make a phone call and spoke in both English and Arabic. While you had a discussion with other members of the household you held the knife behind your back to hide it. The victim saw this as an opportunity to escape and ran out of the room, through the front door. He saw that his car had been stolen. His wallet and personal documents were in the car. A neighbour took the victim to the police station.
Investigation, arrest and interview
11The victim provided a statement to police and a facial composite image of those who were in the house.
12At about 6.58 pm the stolen car driven by Ms Laz was involved in a fatal collision in Melbourne's CBD.
13On 26 October 2020 police executed a search warrant at your address. You were asleep in your room and a search of the house was conducted. Police seized clothing matching the description provided by the victim.
14You provided your mobile phone to the police and answered questions during a record of interview. In summary, you said Ms Laz called you on 24 October 2020 and asked you to come to her house. She told you that she planned to rob someone and needed assistance. She told you that the man was making her uncomfortable. You owed her an amount of money for drugs and she was your friend. You said you felt obliged to help her out as you take care of her. You said you kept the man in the room and 'I probably did grab it' in relation to the kitchen knife.
Offending whilst on Bail
15At the time of the offending you were on bail.
Subsequent matter
16You were granted bail in February 2021. Whilst on bail you were charged with a stalking offence, leading to the revocation of your bail in April 2021. Ms Sargent said you understood yourself to be in a relationship with a woman and continued calling and messaging her when she told you she no longer wanted to be contacted. The matter has resolved and will be heard in the Magistrates' Court in September 2021. You are on remand for that matter. I was told your earliest release date is 17 September 2021.
Plea of guilty
17You pleaded guilty on the morning of the contested committal and, as such, witnesses were not cross-examined. I accept that by your plea you have saved the community the time and expense of a trial and shown willingness to facilitate the course of justice.
18I have had regard to what has been said by the Court of Appeal; that a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not impacted by the pandemic.
19I accept your guilty plea demonstrates remorse. In your interview you expressed remorse and regret, acknowledging that the victim was innocent and that you felt bad for him.
Pre-sentence detention
20Total pre-sentence detention in this matter is 234 days.
Prior convictions
21You have a prior but limited criminal history relating mostly to shopstealing and theft offences. You faced a charge of committing an indictable offence whilst on bail in 2015. This is the first time you have been in custody.
Personal circumstances
22You are 26 years old and you live with your parents in Thomastown. You were born in Melbourne and are of Syrian and Lebanese background. You have an older sister and a younger brother.
23You have a close knit, loving and supportive immediate and extended family. Your cousin, Danny Rajab, gave evidence. Your parents are well respected in the community, hardworking, loving and caring. They ran a business for approximately 35 years, manufacturing denim jeans, until a change in economic circumstances saw an end to the business. You have five uncles and an aunt, all whom live in the area. Your uncle and aunt now run a restaurant in Broadmeadows.
24Your schooling is limited. You struggled with bullying because of a speech impediment; specifically stuttering. Your academic performance was impacted, leading to a host of learning difficulties; particularly in verbal and language based areas. You attended Peter Lalor Secondary College and Preston MIT before ceasing school completely. You worked as a painter and then as a bricklayer.
25You were introduced to cannabis at around the age of 15 and experimented intermittently with methamphetamine. You started using it daily in your early 20s. Your friends introduced you to GHB. You offended whilst under the influence of GHB.
26You have had two significant relationships. The second broke down due to your substance abuse.
27
Despite your close knit family, none of them were aware of your drug problem.
Mr Rajab described the family as being shocked and disappointed upon learning of your long history of drug use and of your offending, as 'they pride themselves on respect'.
Objective gravity of the offences
28The offences of armed robbery and false imprisonment are serious offences, as is reflected in the maximum penalties of 15 years and 10 years' imprisonment, respectively.
29The serious offending is conceded by your counsel. The victim was doing his job. He was in a vulnerable position, inside your co-accused's home, with other people present. Although you did not bring the knife to the house, you picked up the knife and used it to threaten the victim in a way which left him terrified. His fear for his life is evident in him begging you to let him go and telling you that he has children.
30Your role in physically preventing the victim from leaving by pushing him in the chest, robbing him of his keys and phone and threatening him by wielding a large kitchen knife in the way that you did is dangerous conduct warranting denunciation.
Moral culpability
31The assessment of your moral culpability needs to be made in the context of the reports of Mr Matthew Staios, clinical neuropsychologist, and Mr Warren Simmons, consulting psychologist. In summary, Mr Staios considers your severe stutter is a condition that has impacted on your learning and led to you being bullied. It subsequently impacted your self-worth and resulted in you gravitating to negative peer influences. Your communication disorder and limited level of education has likely impacted your reasoning and problem-solving skills, leaving you vulnerable to the influence of negative peers. Mr Staios considered you would benefit from intensive intervention to be provided by a speech therapist on an ongoing basis.
32Mr Simmons noted your positive childhood. He also considered that the harassment you received as a child relating to your stutter would have left you vulnerable to substance use and that your language difficulties would have impacted on your learning and self-esteem. He considers that your substance use appears to be connected to your offending in that you offended whilst substance affected. You would benefit from a referral for drug and alcohol counselling with a focus on increased self-efficacy, harm minimisation and relapse prevention strategies. Given the strong correlation between your substance use and your offending behaviour, addressing the former is likely to lead to a decrease in the latter.
33Ms Sargent submitted that these factors, whilst not rising to a level supportive of a Verdins submission, and not a mitigatory factor,[1] nevertheless provide context for your terrible decision to get involved, when requested, on the day of the offending. She submitted that you recognise that when using drugs your judgment is impaired and you make poor decisions. You were motivated to assist Ms Laz because of your impressionability and because you owed Ms Laz a drug debt, which made you feel like you could not refuse her request. This explains why you got involved for no value to yourself.
[1] R v Verdins (2007) 16 VR 269.
34Ms Malobabic submitted that your moral culpability is high and that the reasons offered by you in your record of interview for having become involved do not moderate moral culpability.
35I accept your counsel’s submission that you were not the 'brains' behind the offending and that you were called in to give effect to Ms Laz’s plan. You were not involved in the lead up to the offending, rather for the 20 minute period inside the home.
36
I have had regard to the full reports of both Mr Staios and Mr Simmons, and to
Ms Sargent's submission that your culpability needs to be assessed in the context of your general level of intelligence and the connection between your communication challenges, drug use and offending. Having had regard to these matters I nevertheless consider your culpability to be significant, given your preparedness to be involved, despite knowing Ms Laz’s intentions, by physically preventing the victim from leaving by pushing him in the chest, robbing him of his keys and phone and threatening him by wielding a large kitchen knife in the way that you did.
Victim impact statement
37The victim declined to make a victim impact statement, however Ms Sargent properly acknowledged that he would have been terrified during the offending.
General deterrence
38General deterrence is a significant sentencing consideration. As I have said, these are serious offences and the victim was in a particularly vulnerable position; doing his job in the home of your co-offender.
Specific deterrence
39Whilst specific deterrence is also a significant sentencing consideration I accept that you are remorseful. The prosecution agrees there is evidence of remorse; your guilty plea, admissions in the record of interview and your expressions of remorse to the psychologist.
40I also heard evidence from Mr Rajab, which I accept, that when speaking with you you expressed remorse for your offending, explained that you want to be a good person, that you are no longer that person and you never ever will do something like that again.
41You do not have history of this type of offending.
Prospects of rehabilitation
42Ms Sargent submitted that your prospects of rehabilitation are favourable. You remained drug free whilst on bail, you are still of a relatively young age and you have full family support. Your engagement with Narcotics Anonymous whilst in custody demonstrates your commitment to change. You aspire to get a job, save money, buy a house, get married and have children. Your time in custody has provided you with an opportunity to consider where you want to go, with some clarity, whilst being drug free.
43Ms Sargent acknowledged that the subsequent offending was obviously foolish and that you should have got help. Nevertheless, she submitted that the offending was different in nature from this offending - the matter has resolved and will be dealt with - but the fact that you were promptly remanded in custody demonstrated to you the gravity of your situation. You have had an opportunity whilst on remand for 240 odd days to reflect.
44
Ms Malobabic said there was no dispute that you have family support and that
Mr Rajab was an impressive witness. She articulated the prosecution's concern that despite family support and having been on remand for four months you nevertheless offended, causing your bail to be revoked. On the promising side, she referred to the courses that you have now completed and the period for which you have been drug free, albeit in a controlled setting.
45Mr Rajab gave evidence that your whole family is supportive of you and upon your release they will give you love and support as a family. In practical terms, he said you have 25 cousins with a driver's licence who could take you to your appointments. Your family will involve you in the restaurant and your brother can involve you in bricklaying.
46Mr Rajab acknowledged that this support was available to you when you were on bail and offended. He acknowledged that you are an adult and whilst the family will give you the love and support you need, they cannot be standing looking over your shoulder every moment.
47
You are indeed fortunate to have a family that is loving and supportive in the way described by Mr Rajab. This support, together with the time for which you have now been drug free, speaks to favourable prospects of rehabilitation. This must be tempered by your offending whilst on bail, although - as articulated by
Ms Sargent - the nature of that offending is unrelated to the offending for which you are being sentenced today. Mr Rajab was absolutely right to say that you are an adult and your family cannot be looking over your shoulder 24 hours a day, seven days a week.
48I have also had regard to the drug screen analysis results provided and a character reference from Sheikh Abraham Kahlil Ibrahim. You have participated in Narcotics Anonymous meetings, undertaken the 'Ice and Me' program, and you have enrolled to participate in the 'Cannabis and Me' program. At Marngoneet you worked every weekday as a landscape gardener. At Ravenhall you are working as a cleaning billet up to five hours a day. I have had regard to these efforts.
49On balance, I consider your prospects of rehabilitation are favourable.
50You have experienced two periods of 14 day quarantine whilst you have been in custody. I have had regard to the difficult circumstances attributable to the COVID-19 environment including very limited contact visits with your family and restricted access to programs whilst in custody, you not being a sentenced prisoner.
Current sentencing practices
51I am obliged to have regard to current sentencing practice in determining the sentence, though I note the guidance of the High Court in DPP v Dalgliesh[2] that current sentencing practices are one of the many factors that must be taken into account in sentencing. I have looked at the Sentencing Advisory Council Higher Courts Sentencing Statistics for these offences. They reflect the seriousness of the offences. For example, in the case of robbery a term of imprisonment was imposed in 75.5% of cases.[3] Every case is different, however, and the court must have regard to the individual circumstances of each case - which is what, of course, I have done.
[2] (a pseudonym) (2017) 262 CLR 428.
[3] Sentencing Statistics 2015–16, 2019–20.
Sentencing submissions
52Ms Sargent submitted that a combination sentence is appropriate and ought be imposed. You have never been sentenced to a term of imprisonment before, nor have you been sentenced to a community correction order before. A community correction order, whilst punitive - thus serving the sentencing purpose of just punishment and denunciation - will also provide the opportunity for rehabilitation and oversight, which serves the community's interests. You have already served a significant period of time in custody and, as such, a term of imprisonment of time served plus a community correction order is appropriate.
53Ms Malobabic conceded that a combination sentence is not outside the range, however she contended that a further term of imprisonment is warranted in light of the nature and gravity of the offence. She conceded there is some overlap between the charges. Nevertheless, she submitted that some further term ought be served.
54I acceded to Ms Sargent's request that you be assessed for a community correction order. The assessment report was received on 19 August 2021. In summary, you said to the assessor that you feel ashamed of your behaviour and would not have committed the offences if you had not been substance affected.
55You have been assessed as a suitable candidate for a community correction order at this time. Due to changes implemented in CCS as part of the Government's response to COVID-19 the community work program is currently suspended and, as such, is not recommended.
56The Court received a report from the Mental Health Advice and Response Service (MHARS) dated 20 August 2021. The author of the report notes that you presented as genuinely remorseful. You were relieved and agreeable when informed that a mental health condition would be part of any community correction order. A health care plan by your GP for psychological treatment is recommended. This can address what appears to be a degree of trauma caused by bullying you experienced during your educational years, whilst also encouraging a positive outlook for your future and coping mechanisms to remain abstinent from substance use upon release.
Consideration
57Having carefully considered, balanced and weighed all of the matters referred to during the course of the plea, and the material relied upon in support, I consider that a combination sentence best achieves the right balance. The punitive nature of the term of imprisonment, together with a lengthy community correction order, addresses the need for general deterrence. The imposition of conditions directed to your drug use, which played a role in your offending, address the sentencing considerations of rehabilitation and the attendant reduction in recidivism. The protection of the community is served by your rehabilitation. The imposition of conditions requiring supervision address compliance.
58I have had regard to s44(1) of the Sentencing Act 1991, which allows the court to make a combined term of imprisonment and a CCO if the term of imprisonment to be served, after deduction of any pre-sentence detention, is one year or less.
59I do not consider that a term of imprisonment of 'time served' is appropriate in light of the nature of the offending and considerations of general deterrence. I consider that a further term ought be served, albeit a short further term, once having regard to the matters in mitigation on your plea.
Sentence
60On Charges 1, robbery, and 2, false imprisonment, I sentence you to an aggregate term of imprisonment of nine months with conviction. These offences are founded on the same facts or form, or are part of a series of offences of the same or similar character in accordance with s9 of the Sentencing Act 1991. There is both a factual and temporal nexus between the charges.
61On Summary Offence Charge 4, unlawful assault, I sentence you to a term of imprisonment of one month.
62On Summary Charge 6, commit an indictable offence on bail, I sentence you to a term of imprisonment of one month.
63The terms of imprisonment imposed on Charges 4 and 6 are to be served wholly concurrently with the sentence imposed on Charges 1 and 2. That is a total effective sentence of nine months' imprisonment.
64I declare that there are 234 days of pre-sentence detention to be reckoned as having been served.
65In addition to the sentence of imprisonment on Charges 1 and 2 I make a community correction order of two years to commence on your release from prison.
66Because you must agree before I can release you on a community correction order, I will tell you what the conditions are. The core conditions attached to every community correction order are that you must:
· Report to and receive visits from Corrections Victoria;
· Notify Corrections Victoria of any change of address or employment;
· Not leave Victoria without the permission of Corrections Victoria; and
· Comply with any direction given by Corrections Victoria to ensure compliance with the order.
67I will also order that you comply with other conditions during that two years.
68You are to undergo any assessment and treatment including testing for drug abuse or dependency, any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, and any program that addresses factors related to your offending behaviour.
69You are to be supervised, monitored and managed as directed by the Secretary.
70Mr Dayoub, do you agree to being released on a community correction order with those conditions attached once you have served your term of imprisonment? Perhaps, Mr Tsirogiannis or Ms Stretton, if you could unmute Mr Dayoub so that he can - - -
71OFFENDER: Yes, Your Honour. Yeah.
72HER HONOUR: Thank you.
73OFFENDER: Yes, I'll do it.
74HER HONOUR: If you do not complete any condition of the community correction order you will be brought back before me to be re-sentenced and also to be dealt with for not doing what you were ordered to do under the community correction order. Do you understand what will happen if you do not complete any of those conditions?
75OFFENDER: Yes, Your Honour. Yeah, I understand.
Section 6AAA declaration
76HER HONOUR: Pursuant to s 6AAA of the Sentencing Act 1991 I declare that had you pleaded not guilty to these offences and been found guilty of them I would have sentenced you to a term of imprisonment of 18 months together with a community correction order of two years and six months.
77Ms Sargent, what I propose to do is stand the matter down just for a couple of minutes to give you an opportunity to explain the conditions of the community correction order. It's just occurred to me there might need to be - that a copy of the order might need to be emailed to you first.
78MS SARGENT: That would be ideal. Thank you, Your Honour.
79HER HONOUR: Yes, thank you - and to Ms Malobabic - and then if you could please take Mr Dayoub through the conditions of the order and once that's done I'll come back on and adjourn the court.
80MS SARGENT: Thank you, Your Honour.
81HER HONOUR: Ms Malobabic, while I think about it are there any ancillary orders?
82MS MALOBABIC: No, Your Honour. No orders are sought.
83HER HONOUR: Thank you. All right, I'll stand the matter down while that happens and then come back on when it's done.
(Short adjournment.)
84Thank you, Ms Sargent. I'll just reiterate, Mr Dayoub, that you'll need to attend at Reservoir Community Correctional Service within two clear working days after the commencement of the order. Any other matters, Ms Malobabic or Ms Sargent?
85COUNSEL: No, Your Honour.
86HER HONOUR: No? Well thank you, counsel, for your assistance in this matter. Please adjourn the court sine die.
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