Director of Public Prosecutions v Dib
[2015] VCC 751
•3 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-14-02036
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALI DIB |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 May 2015 |
| DATE OF SENTENCE: | 3 June 2015 |
| CASE MAY BE CITED AS: | DPP v Dib |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 751 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty to two charges of theft – Handle stolen goods – drive whilst disqualified – deal property suspected proceed of crime
Legislation Cited: Sentencing Act 1991 (Vic); Criminal Procedure Act 2009 (Vic)
Cases Cited:R v Ralphs [2004] VSCA 33; R vO'Neill [2003] VSCA; R v Ibbs (1987) 163 CLR 447; R vVerdins [2007] VSCA 102; Boulton v The Queen [2014] VSCA 342; Latif v The Queen [2013] VSCA 51; Johnson v The Queen [2013] VSCA 362
Sentence:Convicted and sentenced to a period of imprisonment of 1 year and 9 months with a non-parole period of 1 year and 2 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Solicitors for the Office of Public Prosecutions |
| For the Accused | Ms R. Shann | Galbally Rolfe |
HIS HONOUR:
1Mr Dib was born on the 19th day of September 1983, and is aged 31 and has pleaded guilty to the charges in Indictment No.E11780063. Ms Holmes appeared in this matter on behalf of the Director and Ms Shann for Mr Dib. The Indictment itself involved two charges of theft which are rolled up charges and one charge of handle stolen goods. The summary tendered by the learned prosecutor and accepted by Ms Shann as the facts upon which the prisoner is to be sentenced was initially subject to an issue as to the value of loss covered by the thefts.
2Since that time counsel have got together and I have received a letter in which there was an agreement as to the value relevant to each of the items. That is set out in the letter from Galbally Rolfe. The rolled up Charge 1, it is now agreed that the value of loss was $581,925. Charge 2, the rolled up charge for the vehicles in 2014 is now agreed at $245,975 and the value of the one car, being the New South Wales registered car, making up the handle stolen goods charge, is a figure of $19,400, totalling $847,300.
3The thefts involved in the two charges and the handle stolen goods charge took place over a period of 12 months from April of 2013 through to May of 2014. In total, it involved 48 stolen cars. As I said, Charge 1 is a rolled up charge involving the cars stolen in 2013 and encompasses 33 cars. Charge 2 is the rolled up charge in regard to the cars stolen in 2014 and encompasses 14 cars. Insofar as both of those rolled up charges are concerned, sentencing is informed by the process detailed in R v Ralphs [2004] VSCA 33 and the case of R vO'Neill [2003] VSCA 26.
4The third charge is handle stolen goods and that involved the New South Wales car.
5Essentially, by way of summary, the accused would target predominantly Toyota vehicles. He has in his employment in New South Wales learnt to deal with Toyota vehicles and had experience in similar operations. He had registered a business name called Worldwide Spares Pty Ltd. As a result of operations of the Victorian Police, for which it seems appropriate compliments are due for the very hard work, these particular tasks are not easy and not easy crimes to detect. That operation targeted the sale of scrap metal and car parts, which are made of stolen parts of stolen vehicles. There was an analysis apparently obtained from the Customs information as to export of car parts and scrap metal and as a result of that the said company, Worldwide Spares, was identified as having exported significant amounts of vehicle parts in the period May to November 2013.
6The process in which these thefts were effected was quite sophisticated in the sense that it required a person with the particular skills to effect this process. There was the knowledge and use of the VIN number, which is the vehicle identification number, the knowledge of specific key codes to match the specific numbers in each car, the VIN numbers, and the use of a tool called a ‘Creader VIII,’ which is a tool used to scan a vehicle to provide the code required to have keys cut in regard to the cars. Then to use those keys to create a new security system and be able to drive the car.
7As I said, the prisoner would target predominantly Toyota vehicles to be broken down for parts for export. He would identify the VIN number from the car's registration label and then obtain a key code for the vehicle by going to a Toyota dealer with the vehicle VIN, claiming he had lost the car keys. Once he had the vehicle's key code, he would go to a company called Wynn’s Locksmiths with the code and request the key be made. I am not too certain as to what role Wynn’s Locksmiths played and I would not want to be critical of them. They are no doubt a very large organisation and perhaps there was a failure to quite notice what was going on. But once the prisoner had the key he would be able to gain entry to the vehicle. He would then be able to disable and create a new security system, allowing the car to be driven away.
8Having identified Toyotas at various locations, predominantly from looking at the times that they were stolen, parked in the homes of the owners, the prisoner would pre-order the car keys from Wynn’s Locksmiths and pre-order it by the use of providing the electronic key code number to a VIN. Apparently on the information ascertained in the investigation, Mr Dib used the Wynn’s Locksmith for all but three of the 48 stolen vehicles. Apparently the accused would often catch a cab to the location of the stolen vehicles and this fact was demonstrated from the police investigation by way of taxi receipts and enquiries made with 13 Cabs which confirmed the modus operandi.
9
The first search warrant at the prisoner's premises was executed in
April 2014. It was able to identify multiple stolen vehicles on the property and there were in fact on that day a number of items seized. One presumes there were some steps taken to secure the premises. The second search warrant was executed in May 2014, again at the business where more vehicles were identified and a number of items were seized. In particular, a notebook which detailed three theft locations, VIN numbers, and codes to access vehicles. There was a third search warrant executed later in May 2014 and that was of course at the prisoner's residence where there was a further stolen vehicle identified.
10
In addition to the Indictment, the prisoner, through his counsel, has asked the Court to take into account some summary offences, which are before the Court, pursuant to s.145 of the Criminal Procedure Act. The first is a summary charge, as I understand it, No.33, of drive while disqualified. One matter, Madam Prosecutor, in regard to this was the sentence, does the prior in
New South Wales count as a prior here?
11MS HOLMES: For driving whilst suspended?
12HIS HONOUR: Yes.
13MS HOLMES: Yes, Your Honour.
14HIS HONOUR: It does. So in fact he is then in the category of up to two years' imprisonment is the appropriate penalty. Thank you.
15And then the final summary charge was the deal property proceeds of crime charge for which there is a maximum penalty of two years' imprisonment. It should be pointed out that the proceeds we are talking about in that regard were part and parcel of the thefts.
16I have made compensation orders, which may have to be amended before the end of these proceedings.
17The prisoner comes before the Court with prior offences. Those prior offences by way of summary are all car related. The most serious was a matter dealt with in the New South Wales local Courts where under the particular legislation he was convicted of a charge of take and drive conveyance without consent of an owner. Ms Shann was at some pains to point out that that is not a theft count and I accept that. However, it is consistent by way of facts with the circumstances we are dealing with and it is clearly of sufficient seriousness to involve a sentence by way of eight months' of which a non-parole was attached of six months. In addition on that day there was a driving charge.
18The only other matter where his liberty has been interfered with was a matter in the Bankstown Local Court on the 24th day of July 2008 when he, for a charge of drive vehicle recklessly, furiously or speed manner dangerous, again a term not known in our jurisdiction, was given periodic detention for a period of six months. As I understand that, that is usually weekend or a couple of days per week as explained by Ms Shann.
19Insofar as the prosecutor was concerned, in the Exhibit A prosecution summary provided, for which I thank her, she fully detailed the matters that I have referred to. She took me to the maximum penalties, the penalty being for theft a period of ten years' imprisonment, for handling stolen goods 15 years' imprisonment. Obviously in the circumstances of this case the major offences are Charges 1 and 2 in this Indictment.
20The orders sought were a DNA forensic sample order. I do intend to make such an order because of the seriousness of the matter and I have already mentioned the issue of compensation. There is an order which dates back many, many years I think to when people used to commit armed robberies with horses but at any rate there is an order under the Sentencing Act that requires the compulsory suspension of a licence and there is nothing that a Court can do about that. As pointed out by the learned prosecutor, the period of suspension is discretionary.
21Insofar as the analysis of the crimes generally, the learned prosecutor put that given the sophistication, the sums involved and the planning of the crime and the period over which it was undertaken, that there was only, as far as the prosecution was concerned, one penalty being immediate gaol.
22Insofar as the assessment of culpability I refer to the decision of the High Court in R v Ibbs (1987) 163 CLR 447 where the High Court determined the process in assessing culpability. In this instance such assessment must take into account reference to the number of criminal acts encompassed by the rolled up charge, without of course losing sight of the fact that one is sentencing in fact for only the two charges.
23One has to take into account the adoption by the prisoner of the deliberate course of criminal conduct over a period of one year, the large amount misappropriated and, as I said, the sophistication and planning involved. I therefore assess the criminality in this instance as high. However, the sentencing process, and the synthesis attached, requires a lot more than just that as does the Sentencing Act itself. The process requires a balancing of all facts personal to the offender as particularly detailed by Ms Shann in her plea.
24Ms Shann, again helpfully to the Court, gave the Court a written plea and chronology. She took me back to the history of Mr Dib, the manner in which he was raised, which she summarised as an environment of abuse, rejection and alienation. At an early stage in his life he was essentially, as he saw himself, alone in the world. He was a person who felt it was his responsibility to assist his sister in her life, not wanting to make the mistakes of his father. Ms Shann described Mr Dib as a person desperate to succeed, a person who unfortunately suffered under the impact of ongoing and pervasive depression as described by Mr Newton in the report, to which I will come later, and unfortunately such was exacerbated by an excess of alcohol and gambling upon his coming to Melbourne.
25Ms Shann submitted to the Court, that her client understands the seriousness of his crimes he has committed and is aware that his sentence would involve a period of custody. The submission, ultimately that Ms Shann indicated that she sought to make to the Court, was that in terms of the recent guideline judgment of the Court of Appeal in Boulton v The Queen [2014] VSCA 342 (‘Boulton’), a combination of a period of imprisonment, that is, a period which can be to a maximum now, with the amendments, of two years, and a Community Correction Order was sought.
26Ms Shann took me to the particular facts of Mr Dib's background. I have already mentioned the manner in which he was subjected to what may be described as a raging, if not violent, alcoholic father. He was unfortunately deprived of his mother who died at the age of five. There was an earlier breakup of a relationship. There were difficulties allegedly in his business in Sydney. His relationship with the person and her children, Rita, at the time was such that it was suggested by Ms Shann that essentially he was coming to Melbourne to make a go of it, that if he did not make a go of the business in two years, that relationship would probably cease.
27Whether it was from the totality of his background or the immediate pressure of business, unfortunately upon coming to Melbourne he started to abuse alcohol. He began gambling as well, and it is suggested that his business at that time was failing. It was submitted that he managed to obtain the expertise to carry out this sophisticated plan by material obtained from Google. I have no doubt that that material is obtained from Google, however given his background and experience, in my view I do not accept that he suddenly happened one night to be looking at Google and got the capability to exercise and use these key readers and the ‘Creader VIII.’
28Ms Shann stressed the fact that albeit a significant period of criminality, the duration was confined to the one year and was committed in a period of ongoing difficulties, personal issues and stress particularly from his relationship. It was submitted that at no time did he disclose his process of work or the thefts to his family and there was no resiling from the fact that the method involved was sophisticated. There was a considerable time in the plea concerned with the issue of what was the loss and I thank counsel for solving that matter today.
29
There was then discussion as to a reduction in culpability in this matter, brought about by the principles in R vVerdins [2007] VSCA 102. In that regard, Ms Shann essentially relied upon the report of Mr Newton. Insofar as that report is concerned, which is Exhibit 2. Exhibit 1, if I did not identify it before, is the chronology and outline of Ms Shann's submissions. Exhibit 2 was the report of Mr Patrick Newton, clinical and forensic psychologist, dated 14 May. The first matter I think of significance about that report is at paragraphs 6-7, and it was his own concern as to the manner in which Mr Dib entered into and participated in the tests that were given. It is noted that the discourse between himself and
Mr Newton was not affected by any psychosis or other involuntary mental process.
30At paragraph 7, Mr Newton noted some professional concerns as to the manner in which Mr Dib replied and proffered various symptoms. He makes this statement:
"While it's not clear that he had deliberately malingered psychological problems, it was evident that Mr Dib's answers to this test were affected by significant exaggeration and symptom distortion. That is, he had emphasised his failings and suffering while concurrently minimising his positive qualities."
31Mr Newton went on to proffer a suggestion that may well be simply a cry for help. It is clear at paragraph 17, as detailed, that as a result of family upbringing and the general disruption within the family, in particular through his father, there was and has been a psychological instability in Mr Dib's life. At paragraph 17 there was the view that as a result of that he had been left with as part of his make-up pervasive depression and anxiety. It would appear that upon his shift to Melbourne and this is based obviously on the history given by Mr Dib, such might have been exacerbated when he came to Melbourne in 2012 to set up the business, the business having failed in Sydney.
32It should be remarked that the same business he set up in Melbourne is exactly or similar to what he was conducting in Sydney and prior to setting up the business he had been, as I understand, on a trip to Lebanon to no doubt obtain contacts. However, as pointed out by Mr Newton at paragraph 20, he was supporting his sister and family and I have spoken about that before and also the family of Rita, the person who he was then in the relationship with. It would appear on the material that Mr Newton was told and advised by Mr Dib that for the first time after he came to Melbourne in 2012 he started to abuse alcohol and gamble excessively.
33At paragraph 28, Mr Dib did not resile from the fact, which is totally consistent with the plea in this matter, that the offending had been financially motivated. He said to Mr Newton that he had been under financial pressure owing to the matters that I have been talking about. He expressed remorse and regret for his actions and indicated that he would like to make restitution if that was possible. I think in that regard, despite my scepticism as to whether anyone would ever be restituted, we now know at least in the intervening period that a sum of $10,000 has now been paid in regard to both compensation orders.
34Insofar as the assessment of the depression, at the time that he was interviewed and perhaps significantly Mr Newton says this, at paragraph 30:
"Even allowing for a degree of exaggeration on his part, he is clearly unhappy. He feels significantly affected by the stressors he's facing. Of these, his legal predicament looms particularly large and has thus reinforced prominent feelings of personal failure."
35It would appear that Rita is no longer with him because it is noted in that paragraph that he has lost his intimate relationships and it would appear that despite the fact that he supported his sister for so long, having been apprised of these crimes committed by her brother she has now left him as well. It is suggested and it was the opinion of Mr Newton that Mr Dib's self-esteem is very low. However, as he notes at 32, his ongoing legal problems have added another area of preoccupation and rumination. However, as said in that same paragraph, his history makes it plain in Mr Newton's opinion that the depressive mood disturbance predates his legal involvement by many years. Diagnostically he described his pervasive depressive symptoms as a persistent depressive disorder, dysthymia. This is of course not a major depressive disorder, or a major psychiatric disorder, but it is a persistent depressive disorder.
36Mr Newton, at paragraph 34, concludes:
"Based on Mr Dib's reports of his history, which of course has a strong rider, and mental state at the time of the offending, it would appear likely that he was labouring under these effects at the relevant time."
37Mr Newton goes on to talk about the pathological gambling, however importantly in regard to cognitive function, he notes that Mr Dib’s thoughts were logical, there was no indication of any sign of formal thought disorder, psychosis or other problems. Importantly he also says at paragraph 38:
"Similarly, Mr Dib's moral reasoning is unimpaired. He is well aware of the wrongfulness of his actions and I do not consider that his capacity to understand the consequences of his actions has ever been impaired."
38Insofar as his final opinion, Mr Newton confirms at sub-paragraph 2 of paragraph 38 that the dysthymia would be expected to have had a detrimental impact on Mr Dib’s judgment and decision making. He talks about history of gambling, and the need for some ongoing treatment for him which would obviously, given the background and the fact that he has never received any treatment, be something that would be important for the authorities to take into account.
39Ms Shann submitted that taking the report of Mr Newton in totality, I should accept that such indicates that as described that Mr Dib’s condition would have had a detrimental impact on his judgment and decision making and therefore the first limb of Verdins, applies in the sense that I should find reduced moral culpability. I have considered this submission closely in all the circumstances of this case, and as I indicated during the plea, I do not accept such proposition.
40Mr Dib has had, I accept, pervasive depression of some form. The extent of it, even on the evidence of the psychologist, perhaps has been exaggerated during the clinical appointment. Against that, we know that he has been involved in a 12 months planned and sophisticated operation. He was allegedly, on his evidence, supporting two families. It is accepted by him that he undertook the thefts for profit. During that time he was also involved in excessive gambling and drinking. As I say, there was no evidence of any treatment for, or even the seeking of any psychological or medical help until he was arrested. Of course, as was rightly put by Ms Shann, this is and may often be the case in regard to criminals who come before the Court.
41
I have no basis to disagree with the diagnosis, and I accept
Mr Newton's diagnosis of depression, pervasive depression and dysthymia and I note, as I have said, at paragraph 38, that he postulates that such would be "expected to have a detrimental effect on his judgment and decision making."
42In the totality of the circumstances as I find them, I do not accept that opinion. I accept that one does not have to have a direct causal connection, as was pointed out in Latif v The Queen [2013] VSCA 51 (‘Latif’), which coincidentally involved not only the same psychologist, but exactly the same diagnosis. But consistent with the determination of the Court of Appeal in Johnson v The Queen [2013] VSCA 362, I find that there is not a realistic connection in all the circumstances of this case, as it is described by Redlich AJ at paragraph 14:
"For a sentencing judge to be satisfied that an offender was affected by a particular mental condition so as to reduce his moral culpability, there must be a realistic connection between the mental condition and the commission of the offence. It must have caused or contributed to the offence or have causally been linked to it. The argument raised here — that the appellant's moral culpability should be reduced on the basis of an indirect causal link between the offence, his drug addiction and the underlying mental disorder — must be rejected."
43In the same way, I find by analogy in this case, while accepting that Latif establishes that one of the ways, amongst others, that Verdins operates is if you can find a direct causal connection. However, there still has to be, on reading the authorities, a realistic connection, as described by Redlich AJ. I do not find, on the facts of this case, any realistic connection. I do not intend to reduce or make a finding based on Verdins that Mr Dib’s culpability should be reduced. I accept, however, the diagnosis of his depression. I accept that he has a need for ongoing treatment, perhaps diagnosed for the first time in his life, which happened since this offending. A copy of Mr Newton's report will obviously be forwarded to the authorities in regard to whom I have to have faith that they will take the appropriate steps to assist Mr Dib. Ms Shann also relied upon the strong support of Mr Assad who tendered the letter, Exhibit 3, and is here in Court again today.
44Coming to what Mr Dib actually got out of these crimes, it was put by Ms Shann to the Court, on instructions, that somewhere between $2,400 and $5,000 was the profit made on each car. The real issue of course is the loss to the owners, however one of the factors one looks at of course in the totality of the sentencing synthesis involved is profits obtained. Accepting that proposition, and using median analysis, it is clear that a profit in the region of about $180,000 was achieved. Now, I think that was done on a midrange between I think what we were talking about, between six hundred and one million – two hundred last time so it is about right, I think, in regard to the now accepted loss figure now.
45Insofar as other fundamental matters. Ms Shann asked me to take into account the important matters set out in the Sentencing Act, the plea of guilty, which I accept was made at the earliest time, and the genuine remorse, which Mr Newton has noted. I accept as part of that remorse what has happened since the last hearing, that is, the payment of the compensation sum of $10,000. The lost relationships, such seems inexplicable, given his support of both persons, that is as soon as they were apprised of his offending they gave him short shrift. It was also put to me that I should note, albeit over a year, that this was one total course of conduct and I should take such into account on the matter of totality.
46Ms Shan submitted, based upon on the Boulton principles, that a combined period of gaol and a Community Correction Order would be the appropriate sentence. In that regard, a Community Correction Order assessment was sought and there was a positive report given (Exhibit 2). Finally Ms Shann put that her client, given his strong desire to succeed, his capacity for hard work, the support that he still has from Mr Assad should be seen by me as having good prospects of rehabilitation.
47It is always a very difficult task where a person is still relatively young, no Court likes to pass a sentence which involves imprisonment. However, the seriousness of these crimes is such that imprisonment is a necessity. In analysing all matters put to me by Ms Shann, I finally determined that a combination of prison and a Community Correction Order would be inappropriate in these circumstances. I do so after having specifically considered s.5 and ss.5(4), 5(4B) and 5(4C) of the Sentencing Act. The crimes here, in particular their sophistication and period of commission, call for the need for punishment, denunciation and general deterrence, such that despite the mitigatory factors put to me by Ms Shann, it would be inappropriate to impose a Community Correction Order.
48It must not be forgotten that Mr Dib has on two prior occasions had his liberty interfered with, albeit not to a large degree. However, when persons have priors of that sort, when they have had the opportunity and do not take that opportunity, they do not come up to be resentenced for those matters of course, however, the alternatives are very limited. We unfortunately in this State are very limited in our alternatives for sentencing anyway.
49However, I have concluded that nothing short of a sentence wholly comprised of an immediate term of imprisonment would suffice to satisfy the requirements of just punishment in this matter. I have concluded that a Community Correction Order, either alone or in conjunction with a sentence of imprisonment, which could not of course exceed two years, would not satisfy the requirements of just punishment in this case. This is because of, in my view, the seriousness of the crimes, the high culpability, the need for a sentence which reflects general deterrence, and punishment for this type of sustained criminality and attack on the community. In particular, it must be noted that most of the thefts took place on people's homes at night where they parked their cars, such persons woke up the next morning to find their cars were no longer there. Little did they know that they were on their way to Lebanon.
50Yes, Mr Dib, if you would stand, please. In regard to the first charge on the Indictment, I sentence you to a period of imprisonment of 18 months. In regard to Charge 2, a period of imprisonment of 12 months. In regard to Charge 3, a period of imprisonment of six months. Using the first charge as the base sentence, insofar as Charge 2 is involved, I order that three months of the sentence imposed in Charge 2 be served cumulatively upon the sentence imposed in regard to Charge 1, making a total period of imprisonment imposed on you of 21 months. In regard to the drive while disqualified matter, I sentence you to a period of imprisonment of three months and in regard to the summary matter, the proceeds matter, a period of imprisonment of three months. They will both be served concurrently, making a total sentence of imprisonment to be served by you of 21 months.
51Pursuant to s.11 of the Sentencing Act, the minimum period that you are required to serve by way of parole is a period of 14 months. I declare pursuant to s.18, that the 14 days that you have served on remand be deemed as service of this sentence and a declaration to that effect be noted in the records of this Court.
52In regard to the requirements of Parliament as placed upon the Court under s.6AAA of the Sentencing Act, I record that had you not pleaded guilty you would have been sentenced to a period of 28 months with a minimum period of 18 months.
53In regard to s.89 of the Sentencing Act, I order that your licence to drive be suspended for six months from today's date.
54Mr Dib, just before you are taken away, much was said about your prospects for rehabilitation. We know you are a talented person in many respects so I hope what I have heard is right and we never see you again. So good luck. All right. Thank you, yes, take the prisoner away, please. I thank counsel for their assistance.
55MS HOLMES: As Your Honour pleases.
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