Director of Public Prosecutions v Dennaoui

[2022] VCC 1232

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-01592

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUAY DENNAOUI

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JUDGE:	HIS HONOUR JUDGE WISCHUSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2022
DATE OF SENTENCE:	3 August 2022
CASE MAY BE CITED AS:	DPP v Dennaoui
MEDIUM NEUTRAL CITATION:	[2022] VCC 1232

REASONS FOR SENTENCE

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Legislation Cited:

Cases Cited:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Lethlean	Office of Public Prosecutions
For the Accused	Mr A. Koutsantony	Koutsantoni & Associates

HIS HONOUR:

1Luay Dennaoui, you have pleaded guilty to nine charges of burglary, nine charges of theft, one charge of attempted burglary, one charge of possession of an unregistered handgun, two charges of handling stolen goods and to one charge of possession of a drug of dependence, methyl amphetamine.

2In addition, you have pleaded guilty to four summary charges, namely –  possession of cartridge ammunition without license or permit, possession of a prohibited weapon, dealing with property suspected of being proceeds of crime and committing an indictable offence whilst on bail.

3The maximum penalties for these offences are as follows:

·     for burglary, 10 years’ imprisonment

·     for theft, 10 years’ imprisonment

·     for attempted burglary, five years’ imprisonment

·     for possession of an unregistered handgun, seven years’ imprisonment

·     for handling stolen goods, 15 years’ imprisonment

·     for possession a drug of dependence in the circumstances here, one years’ imprisonment

·     for possession of cartridge ammunition without license or permit,

40 penalty units

·     for possession of a prohibited weapon, 240 penalty units or
two years’ imprisonment

·     and for dealing with property suspected of being proceeds of crime, two years’ imprisonment

·     for committing an indictable offence whilst on bail, 30 penalty units or three months’ imprisonment.

4The circumstances in which the offences occurred are set out in the amended summary of prosecution opening for plea dated 28 July 2022 – Exhibit 1.  Through your counsel you accepted the accuracy of the opening.

5On 4 April 2019, you were granted bail at the Sunshine police station to appear at the Magistrates’ Court on 27 August of that year.  The offending for which you are to be sentenced today was all committed whilst on that bail and this circumstance gives rise to Summary Charge 44, committing an indictable offence whilst on bail.

6The burglary and theft offences were committed between 7 April 2019 and
19 May 2019, a period of a little over five weeks.  Putting to one side an attempted burglary, in that period of time you committed nine burglaries and nine thefts from buildings you had entered as a trespasser.  The details of the offences are set out at great length in the opening and I will not repeat them here.  The method you used to carry out the burglaries and thefts was very similar on each occasion.

7Until your business failed because of the loss of work, you had conducted business as a contractor to Telstra, NBN and Optus.  You were the registered owner of two work vehicles – a Toyota HiLux utility and a
Toyota HiAce van. Each of them had distinctive features which made them easily recognised.  Using those vehicles and high visibility workman’s outfits, you went to each of the commercial premises that you broke into, and there, typically using a jemmy or a screwdriver, you forced entry to the building and, in an apparently fairly leisurely way in the small hours of the morning, stole significant quantities of infant formula and vitamins.  The goods stolen were driven away in the work vehicle or vehicles.

8Each of the burglaries was carried out in company and there was reference in the course of the plea (and documents) to the sentencing dispositions in the case of three other individuals, who accompanied you on one or two of the nights on which these burglaries were committed.

9It is apparent that a degree of preparation and planning went into each of the break-ins. An accomplice was required, sometimes two, premises with the particular goods that were the target of most of these burglaries had to be identified and means of access and security systems considered. It is also apparent from the circumstances, that although the use of work vehicles and high visibility outfits gave your activities the air of legitimacy, not much consideration had been given to disguise (no facial coverings were worn), nor were there other means of concealing your activities. So it was that a mobile phone registered in your name accompanied you on each of these expeditions, and phone company records were then found that placed the phone in the vicinity on each occasion.  As already noticed, the vehicles used were registered to you.  The stolen materials, it seems, were stored at a factory leased in your own name. Moreover, you left your factory’s CCTV cameras running, and they recorded the coming and going of the vehicles at times consistent with each of the offending occasions.  I was informed that on one occasion at least in the course of the burglaries, you can be seen looking at a CCTV camera whilst attempting to disconnect another.

10The only exception to those generalisations about the nine pairs of burglary and thefts was the burglary of a residential property in Balwyn – Charges 10 and 11. On this occasion, you first approached the front door of the house to see whether anyone was home, and on satisfying yourself there was not, various attempts were made by you and your accomplices to disable the CCTV cameras.  Next, you climbed the fence from an adjacent building site with an accomplice and soon after you were seen leaving, carrying a white bucket with an assortment of goods that have not been specified, which were then tipped into the vehicles you had arrived in.

11The other exception is that Charge 7 was an attempt to break into a property in Springvale Road, Glen Waverley, that failed, so you broke into the pharmacy next door via the roof and from the pharmacy stole baby formula, cash and medical items to a value of not less than $10,000 – Charges 8 and 9.

12The total value of the items stolen in these thefts came to $97,000.

13No victim impact statements were tendered on the plea, though the presumed disruption of the businesses and the economic consequences of your criminal activities hardly need to be explained.

14The last of the burglaries occurred on 19 May 2019 and on 24 May 2019 a search warrant was executed at your factory.

15There the police found: a cut down air rifle, classified as a general category handgun (Charge 20); a Harley Davidson motorcycle valued at $13,000 that had been stolen in 2016 (Charge 21); and a small Ziploc bag of methylamphetamine (Charge 22).  Also found was an assortment of cartridge ammunition (Summary Charge 24); an assortment of prohibited weapons – crossbow, four slingshots, a Taser, two batons a sword, five flick knives and two daggers (Summary Charge 31); and also found were identification documents in relation to four individuals (Summary Charge 35 – possession of property suspected of being the proceeds of crime).

16In the course of the search, the two vehicles that were registered to you were found, one of them containing high visibility clothing branded NBN.  Also within the factory were 20 boxes of baby formula and a number of cash registers that had been stolen during the commission of the offences that give rise to
Charges 9 and 10.

17On 6 June 2019, warrants were executed at the factory again, and at your then residence.  On this occasion, the search of the factory yielded 46 boxes of baby formula and seven boxes of vitamins.

18Amongst other things, the search of your residence revealed the presence of a Sea-Doo jet ski valued at $20,000.  The jet ski had been stolen the year before from the house across the road from your residence.  The possession of the jet ski gives rise to Charge 23 – possession of stolen goods.

19On 17 June 2019, you were arrested at your factory, which you had been seen entering earlier that day with one of the co-offenders, Ceniti.  The police entered the building and found you substance affected and hiding in a wall cavity on the first floor where, upon the approach of the police, you threatened to kill yourself. You had to be subdued and taken into custody, where you were found unfit to be interviewed that night.  The next day, you declined to answer any questions.

20You were remanded in custody until granted bail on 16 September 2019.

21The procedural history of this matter has been long and it is set out in an appendix to your counsel’s submissions.

22On 20 November 2020, there was a brief committal hearing in the
Magistrates’ Court, after which you were committed for trial in this court.  A great many directions hearings and case conferences followed.  Although you had at an early stage indicated your intention to plead guilty, the negotiations concerned, principally, the value of the items stolen in the course of these many thefts.  It was not until February of this year that all issues were resolved and the matter was fixed for plea.

23You have admitted your criminal history.  It was conceded by the counsel for the Director to be modest, and almost none of it relates to offending of the sort for which you are to be sentenced today.  For a great deal of the time to which  this criminal history relates you were a heroin addict, and in that circumstance, the lack of prior offending is not a little surprising.

24Mr Dennaoui, I state to you that I have taken into account all the matters raised on your behalf in the course of the plea in mitigation of penalty, during which your counsel spoke to detailed written submissions – Exhibit 2.

25The matters raised in mitigation included the following:

26Your plea of guilty.  Your plea has facilitated the course of justice and represents an acknowledgement of criminal responsibility for these offences. By your plea you have saved the community the cost of a protracted trial, particularly given the number of individual offences and of accomplices.  In these times of pandemic, additional weight[1] is to be given to the utilitarian value of a plea of guilty, and I have done so.

[1]Worboyes v R [2021] VSCA 169 at [35], [39]: “We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence… For these reasons, we consider that — all other things being equal — 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 afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.” See also Chenhall v R [2021] VSCA 175.

27I have taken into account the relative absence of like offending from your criminal history.  You have never been imprisoned before.

28I have taken into account your background and personal circumstances.  You are now 48 years of age, born and raised in Reservoir.  You are the youngest of a sibship of five boys.  You are of the Muslim faith and your parents hail from Lebanon.  You completed your schooling to Year 12 at Kingsbridge Secondary College before commencing studies as an aircraft mechanic at RMIT.

29That did not work out, and you soon found employment with Telstra, who trained you as a cable technician and linesman.  You worked in that field after that time and from the year 2000 have worked as an independent contractor to Telstra, the NBN, Foxtel and Optus.  You had your own business and eight employees until an unexpected loss of the work resulted in the failure of the enterprise.

30In your personal life your first relationship ended when your partner tragically fell to her death in the year 2000, an event that you witnessed.  Following this, you fell into heroin addiction for the first time.

31You married your wife in 2004 and there are two children of the marriage, a
15-year-old daughter and an 11-year-old son.  The marriage ended when you descended into heroin addiction in 2019 and engaged in these offences.  Presently, you do not have contact with your children.

32Sadly, your father and your eldest brother died of Covid-19 in October 2021.

33Presently, you reside with your 81-year-old mother, to whom you provide companionship and assistance.

34As to your history of heroin addiction, it began in 2000 and persisted until 2015, at which time you achieved a significant period of abstinence by the use of Naltrexone implants.  For three and a half years, these could only be obtained in Western Australia and you flew yourself there every six months for this purpose. This control of your addiction failed at the time your business did, and you returned to significant heroin use that, at the time of this offending, was costing up to $700 a day.

35On remand, you detoxified before being bailed to reside at a (now disgraced) rehabilitation facility.  The strict bail conditions under which you were released included a curfew.

36Soon after being granted bail on 23 October 2019, you were involved in a very serious motorcycle collision that left you with multiple injuries.  For a time they were life-threatening.  A considerable volume of medical reports detailing the injuries and the treatment of them was tendered on the plea.[2] Amongst the injuries were spinal fractures that required extensive instrumented spinal fusion to stabilise, pelvic fractures repaired with plates and screws that themselves caused bladder damage along with damage to attached leg muscles reducing hip movement and power, an injury to the right scapula and left wrist, head injuries with multiple facial fractures, some involving the orbit of the right eye and others the nose.  The repair of these required the insertion of plates and screws.  There was also damage to facial nerves, causing some droop and a variety of sensory impairments.  Professor Richard Stark, a neurologist, on the basis of simple tests of cognitive function, wrote that you had sustained a mild, 'but not trivial', head injury.  In all, some 14 surgical procedures have been undertaken so far, and further procedures to adjust the facial plates are yet to be performed.

[2]Medical Reports prepared by Dr Ash Chehata dated 9 March 2022, Associate Professor Stark dated 23 June 2022, Dr Brenndan Hayman dated 3 March 2022, Dr John Anstee dated 19 April 2022, and Dr Karen Patton dated 10 December 2019 – Exhibit 5

37The spinal fractures and the fusion performed to treat them have left you with a very stiff spine and very poor mobility.  Vision in the right eye is impaired.  The right arm and shoulder is impaired and painful, as is the left wrist.  Presently, your mobility is limited, such that you cannot walk more than 100 metres, and sitting and standing is limited to 20 minutes at a time. You are unable to drive or to lie flat.  Persisting pain, particularly from the spinal injuries, is a problem such that significant quantities of opioid medication are currently prescribed for you.  The medical opinion is that you are unlikely to ever work again and that your pain will be severe and chronic.

38In addition, the circumstances of the accident have given rise to psychological consequences.  These are detailed in the report of the treating psychologist[3] and psychiatrist.  In evidence also was a report from Patrick Newton, psychologist, prepared for this plea hearing – Exhibit 3.  The principal diagnosis amongst the psychological commentators is of post-traumatic stress disorder, generalised anxiety and panic attacks and chronic pain syndrome.  The panic attacks apparently commenced in anticipation of one of the many operations you have had, in mid-2020.  To the extent that there is an adjustment disorder with depressed and anxious mood, part of it is thought to be explained by your current legal predicament, but there is a greater level of it here because of the multiple other causes of stress in your life, particularly the chronic pain and disability.  On a rather fuller account of your long history of substance abuse, apparently mainly heroin, but also GHB and methamphetamine, Patrick Newton also made a diagnosis of a severe substance use disorder.

[3]Dr Naughten does not mention the history of heroin addiction at all, though, according to the history obtained by Dr Hayman, psychiatrist, Naughten had treated him in the past

39On the plea were tendered a number of references from members of your local and religious communities – Exhibit 6.  They speak well of your engagement in religious and community matters.

40It was not in dispute that Verdins[4] principles five and six are to be given weight in the sentencing consideration as, because of your mental state, the burden of imprisonment will be greater for you and because it carries with it the risk of a significant deterioration in your mental state.  I accept also that your concerns for your elderly mother, especially given the threat the pandemic represents to her, whilst you are in prison, will also make your time there more burdensome.

[4][2007] VSCA 102

41Given your extensive physical injuries and the pain they cause, it was submitted, and not in dispute, that prison will be more difficult for you than for an uninjured person, especially as most of the medications you are currently prescribed will not be available in the prison system, that is, unless you are placed in isolation.

42I have had regard to the question of parity.  Documents and information were provided revealing the sentencing disposition and prior criminal histories of three of your accomplices in this overall offending.  At once it was conceded that this is a difficult consideration here, as in one case, Ceniti, he was your accomplice on four offending occasions, and the other two accompanied you only during the offending at two venues, on 16 April 2019, that is
Nott Street, Balwyn, and Springvale Road.  As to this, the learned prosecutor submitted that across the nine sets of thefts and burglaries, you and your vehicles were the common thread and that this revealed that you were the principal in this overall operation.

43I have taken into account delay. These charges have hung over your head since your arrest nearly three years ago now, and I accept that concern about the range of possible sentencing outcomes has placed an additional strain on your already difficult circumstances.

44I have taken into account your prospects of rehabilitation.  Given the complex medical picture you present, this is a particularly difficult exercise here.  Only Patrick Newton, amongst the psychological and psychiatric reporters in the case, obtained a comprehensive history of the extent of your substance abuse in the past, and in his view, your relatively superficial insight into this problem poses a significant risk of relapse, and of the reoffending that usually accompanies a return to illicit drug use.  In my view, your prospects of rehabilitation must be regarded as guarded.

45Both Patrick Newton and the consultant psychiatrist thought you needed more intensive management of your mental health than has hitherto been the case, and another common thread in the medical opinions is that the raft of opiate analgesics you are presently taking needed to be rationalised.

46Against the matters to be taken into account in mitigation of penalty must be balanced the fact, and this was properly conceded, that these are relatively serious examples of the crimes of burglary and theft.  Evaluating the gravity of this offending requires noticing the use of forethought, planning and disguise with the 'ruse' of the vehicles and the high visibility workwear.  Although it is not a matter going to mitigation, there was also a relative naïveté to this offending – the taking of your own phone, the use of your own vehicles, all but ignoring CCTV cameras and leaving the CCTV at your own factory turned on.

47It was conceded that specific and general deterrence must be given weight in the sentencing consideration, as must the need to manifest the community’s denunciation of your conduct and to otherwise impose just punishment.

48On behalf of the Director, it was submitted that the gravity of the offending here was such that only a term of imprisonment and a non-parole period would satisfy all relevant sentencing considerations.  On your behalf, it was submitted that a further term of imprisonment, short enough to be combined with a community corrections order, would do that.

49In all the circumstances, I did order that you be assessed as to your suitability to undergo such a community corrections order.  The assessment report has been received and it is dated 2 August 2022 – Exhibit 7.  The author of it, Paul Sguerzi, found you suitable to undergo such an order, despite his assessment that you have a high risk of reoffending, when assessed according to their level of risk assessment tool.

50Mr Dennaoui, I state to you that I have taken into account all the matters raised on your behalf in the course of the plea and all other relevant facts and sentencing principles in arriving at the sentence I am about to impose.

51On all the charges on the indictment and on Summary Charges 31, 35 and 44, you are convicted and sentenced to a term of imprisonment of nine months, to be followed by a community corrections order that commences upon your release from prison and runs for a period of 12 months.

52On Summary Charge 24, possession of cartridge ammunition, you are convicted and discharged.

Community Corrections Order

53Mr Dennaoui, you have been convicted and sentenced to a community corrections order for a period of 12 months, commencing upon your release from prison.

54I am obliged to explain the order, so that you understand what it means and what may happen if you breach that order in any way. 

55There are a number of core conditions that apply to a community corrections order:

·     you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.  If you do, you will be in breach of the order;

·     you must comply with any obligations or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011;

·     you must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, by that I mean the Corrections officer, during the period of the order, that is 12 months;

·     you must report to the Community Corrections Centre at
909 High Street, Reservoir, within two clear days after your release from custody.  If you do not, you will be in breach of the order;

·     you must let a Community Corrections officer know within two clear working days of you changing your address or job;

·     you must not leave Victoria except with the permission of the Secretary to the Department of Justice or his or her delegate;

·     you must comply with any lawful direction given by a Corrections officer that is necessary to ensure you comply with the order.

56They are the core conditions that apply to the order.  They apply to all community corrections orders.

57There are a number of additional conditions that apply to you:

·     as you will already have served a term of imprisonment I have not imposed any hours of unpaid community work;

·     you must be under the supervision of a Community Corrections officer for a period of 12 months;

·     you are required to be supervised, monitored and managed, as directed by the Secretary or his or her nominee (s48E);

·     you must undergo medical treatment and rehabilitation, as directed by the Regional Manager (s48D(3));

·     you must undergo mental health treatment and rehabilitation, as directed by the Regional Manager (s48D(3)(e));

·     and you must undergo assessment and treatment, including testing, for drug abuse or dependency, as directed by the Regional Manager (s48D(3)(a)).

58I can only impose a community corrections order if you agree to such an order being imposed.

59If you contravene or breach this order by committing further offences, you can be charged and sentenced to a term of imprisonment for the breach.

60You can also be resentenced for the offences that are before me.  In other words, I would resentence you on the charges that are currently before me, and you could, in that circumstance, be sentenced to a further term of imprisonment.

61I have to advise you that if you fail to comply with any direction of the
Secretary to the Department of Justice, that is a Community Corrections officer, as part of this order, you can also be fined.

62I declare that the 91 days you have spent in custody on remand in respect of these charges is to be reckoned as time served under the sentence I have today imposed and I direct that this fact be entered in the records of the court.

63Pursuant to s6AAA of the Sentencing Act 1991, I state that had you been found guilty of these charges after a trial I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years and three months.

64I will make the ancillary orders.  Mr Koutsantony.

65MR KOUTSANTONY:  Yes, Your Honour.

66HIS HONOUR:  I will get you to approach the dock with my associate and get your client to sign the Corrections order.

67MR KOUTSANTONY:  Yes, sir.

68HIS HONOUR:  I will prevail upon you to explain it to him.  The other matter I wanted to raise with you is whether you will need instructions about this.  If there is any objection to providing to Corrections the various medical reports that have been tendered so that they can manage his various conditions whilst in prison.

69MR KOUTSANTONY:  There is no - we have already canvassed that,
Your Honour.  There is no issue about providing all that material.

70HIS HONOUR:  All right.  We will annex that to the order that we make.  So will you get the order signed?

71MR KOUTSANTONY:  If Your Honour pleases.

72HIS HONOUR:  Ms Lethlean, any problems to any of those orders?

73MS LETHLEAN:  No, Your Honour.

74HIS HONOUR:  Very well.  I will sign the ancillary orders before I leave the Bench.  There is a forfeiture order.  Yes, would you remove the prisoner, please?

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