Director of Public Prosecutions v El-Achkar
[2024] VCC 2104
•18 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01769
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM EL-ACHKAR |
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JUDGE: | JUDGE DAWES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May, 13 August, 30 October, 18 December 2024 | |
DATE OF SENTENCE: | 18 December 2024 | |
CASE MAY BE CITED AS: | DPP v El-Achkar | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2104 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Aggravated car jacking
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Muldrock v The Queen [2011] 244 CLR 120
Sentence: 12-month Justice Plan CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Triandos | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. Miller | Shanelle Veit Lawyers |
1Adam El-Achkar, you have pleaded guilty to the offence of aggravated carjacking, which was committed on 25 January 2023. The maximum penalty for this offence is 25 years’ imprisonment.
2You have also pleaded guilty to the related summary offence of committing an indictable offence on bail, as you were on bail for other matters at the time. The maximum penalty for this offence is three months’ imprisonment or 30 penalty units.
3You are one of three co-accused charged with this incident. You were 18 years of age at the time. AB was 13 and JH was 15 years of age. Another 15 year old male was also involved in the events.
4The circumstances of your offending have been provided in the summary of prosecution opening. It is agreed to be an accurate account of events. A general summary of the facts is as follows:
5The victim worked as a delivery driver for Uber and used a white rental scooter. At around 8 pm on 25 January 2023, he parked the scooter on the sidewalk and made a delivery to Harrison Street, East Brunswick. At around the same time, you and AB were in a park on the other side of the road. When he returned, you and AB approached him from behind.
6The victim placed his phone into the holder and attempted to get onto the scooter. You had removed a knife from your pocket and held it to his neck, from behind. You told him to 'get off the bike, don’t try anything'. The victim tried to start the scooter to flee, but you pushed the knife more firmly.
7The victim said, 'at least let me take my phone', which you allowed him to do. AB then got onto the scooter and prepared to leave as you took the knife away from the victim’s neck. You ran and got onto the back of the scooter and the victim started shouting 'thieves'. The second co-accused, JH, was on another scooter a short distance away. Both scooters left the area in a southerly direction.
8The victim attempted to follow you but was unable to catch up with the scooters. As soon as you got away, he spoke to some people on the street and called Triple 0. Police soon attended the scene, and the victim provided a statement.
9On 26 January 2023, police had commenced their investigation. At around 2.30pm, they were notified that three males were travelling on the white scooter. Police located and followed the scooter until it stopped on Barkly Street, Brunswick. The three males were observed in the Barkly Square Park. Police units approached the park to arrest the persons of interest. You, AB and another male ran away. After a short pursuit, you were all arrested. At approximately 3.13pm, you were searched and an Apple iPhone and a pair of black gloves that you had dropped while being pursued were located. A search of the area also located the key to the stolen scooter that was thrown by AB before his arrest.
10GPS data from the scooter indicated that it had been driven to multiple locations on 25 and 26 January, including near to your home address. Call charge records and event-based management data obtained for you and your co-accused show a strong correlation to the GPS data of the stolen scooter, during the time of the offence and the hours thereafter.
11A phone analysis revealed that you, AB and JH were members of a Snapchat group called 'moped gang'. You used the Snapchat name 'baby adam'. On 26 January 2023, a message was sent from 'baby adam' to the 'moped gang' stating 'Nina, Jona, I need your machete I stabbed a Indian guys yesterday with ally knife'.
12On 26 January 2023, you were transported to the Fawkner police station where you were interviewed by police and then remanded into custody. You were released on bail the following day at the filing hearing and have served two days of pre-sentence detention. You answered 'no comment' to questions put to you in your record of interview. You did not provide a specific explanation for your offending behaviour until more recently, when assessments by Youth Justice and the Office of Corrections were conducted in August 2024. The author of the youth justice report writes that you stated that the offending was not planned and completely opportunistic. You saw the scooter and wanted it, without considering the consequences of your actions. You frequently carried a knife for your own protection. The knife used in this incident was given to you by one of your co-accused. While you initially minimised the seriousness of this incident, you later reflected that you would not do anything like it again as it was ‘dumb’. Upon reflection, you felt bad for the victim and said that you are sorry. The author opines that at the time, you lacked consequential thinking and were not aware of the potential consequences until after you were arrested. You were initially reluctant to admit your guilt as you did not want to disappoint your mother. Your account to the author of the original CCO report included that you do not recall details about the incident as you were ‘high’ that day, having smoked cannabis.
13I consider that you had some lack of insight into your misconduct. Notwithstanding this, it appears that you have remorse, despite the fact that it was not immediately forthcoming. I have taken that into account in your favour.
14A contested committal proceeded on 12 October 2023, where the victim and the informant were cross-examined. You were committed to stand trial on several offences, including aggravated carjacking and entered pleas of not guilty. Your trial was listed to commence on 23 May 2024. Previous offers to resolve your case by pleading guilty to a less serious offence were not accepted by the prosecution. On the first day of the trial, the discussions continued after an application for a sentence indication was refused. An updated indictment was then filed. A separate incident of the theft of a scooter was withdrawn and you pleaded guilty to aggravated carjacking on that day.
15The evidence against you for this offence has been clear for a long time. Your guilty plea was entered at a late stage, although it still has some utilitarian benefit. You have saved the court and community the time and expense of running a trial. You also prevented the victim from being required to give evidence and undergo further cross-examination. Your plea of guilty facilitates the efficient administration of justice and you are entitled to some benefit for that, even though the benefit is less than if your guilty plea was entered at an early stage.
16While JH was initially charged with carjacking, he pleaded guilty in the Children’s Court to the theft of the scooter. His guilty plea was to a charge that does not align with yours and the statutory sentencing considerations that governed his sentence do not apply to adult offenders. AB was found to be doli incapax and his matter was not pursued by the prosecution. In those circumstances, there is no parity issue to consider.
17You have no prior convictions, although you had three subsequent appearances in court. On 18 May 2023, you were remanded and released on the same day, when you pleaded guilty in the Magistrates’ Court to shop theft and to committing an offence while on bail. You received an undertaking to be of good behaviour, without conviction. On 1 August 2023, you pleaded guilty in the Children’s Court to a consolidation of 18 offences that were committed between August and December 2022. You were placed on probation for a period of six months without conviction. On 27 February 2024, you pleaded guilty in the Magistrates’ Court to a further consolidation of 18 matters of dishonesty and driving offences. You were placed on an undertaking to be of good behaviour without conviction for 18 months with a condition that you continue to work with Youth Justice until your supervised bail is completed.
Your undertaking of bail that was granted for this offence includes a condition that you comply with support from the youth justice program. Your compliance has been fairly good and you have not had further contact with police for almost 18 months. I am told that your offending is linked to social connections and poor peer groups. It seems that your engagement with youth justice has assisted you to turn away from that.
Since you were released on bail almost 23 months ago, you have also been the subject of strict bail conditions including a curfew between 9 pm - 6 am and a residential condition. All of the conditions of bail have resulted in a substantial intervention which may have assisted in your rehabilitation, yet they also amount to an imposition on your liberty and are a form of punishment already occasioned. I take that into account. I am told that although you committed some offences after you were initially released on bail, you have not re-offended since June 2023 and have no other charges outstanding. I also take that into account in your favour when considering your prospects of rehabilitation.
A victim impact statement has not been provided. There is no information about any residual effect of your conduct. At the contested committal, the victim said that he could feel something metallic pressed into his neck. It is conceded on your behalf that to have had a knife held to his throat would have been a terrifying incident which is likely to have an ongoing distressing and traumatic impact. It is most fortunate that the victim did not suffer any physical injury.
I will now outline your personal circumstances. You were born in December 2004 and have just turned 20 years of age. You have two older brothers and a younger half-sister and reside with them and your mother in Broadmeadows. You have not had a relationship with your father, who resides in Lebanon. You have been supported in court by your mother, your National Disability Insurance Scheme ('NDIS') support worker and your Youth Justice support worker.
You have experienced deafness since birth, which is genetic in origin as your mother is also deaf and there is a family history of deafness. Your primary language is Auslan, which is used within your family home. You have been assisted by interpreters while in court.
You commenced schooling at Furlong Park School for Deaf Children but transferred to St Albans East Primary School during your primary school education. You attended the Victorian College for the Deaf for one year and then went to the Sunshine College for a further two years, ending your enrolment at the end of 2020 when you were 16 years of age and completed Year 10. Following your disengagement from formal schooling, you enrolled in the Glenroy Neighbourhood Learning Centre, an adult education centre, in 2021. You have acknowledged engaging in some further education, but the nature and extent of this is unclear.
When your guilty plea was entered, you were not formally employed, did not have an income and relied on your family for financial support. You had participated in a four-week work trial with providers to the NDIS called ‘Immerse and Inspire’. In a letter prepared for the court, your case manager writes that although you had planned to do a pre-apprenticeship course earlier this year, it did not go ahead due to lack of numbers in enrolment. You also completed a four-week trial in roof plumbing, although you did not get the job due to your lack of experience. You have previously done a carpentry work trial but were unsuccessful due to your deafness. You are described as a very polite young man who is always co-operative. You are becoming more mature, which is good to see. You have been keen to find work and fortunately, this has now occurred. You recently commenced fulltime employment on a casual basis as a ‘handy man’. You are driven to work every day by your support worker and take public transport home. You are enjoying your employment.
You present with cognitive deficits and are a participant of the NDIS. You have utilised access to your support workers and have recently accessed hearing aids to assist you. You demonstrated an improvement in your compliance with Youth Justice some time ago and your engagement and progress in appointments has been positive. These supports have assisted you to develop your skills and identify your areas of need. Your accommodation with your family remains safe and secure. Some concerns were raised about your use of cannabis. You previously used cannabis on a regular basis and a referral was submitted to the Youth Support and Advocacy Service for drug and alcohol support.
The most recent youth justice bail reports, dated 29 October and 12 December 2024, confirm that you have continued to demonstrate positive compliance and engagement with Youth Justice. Your appointments decreased from weekly to fortnightly and you have attended as required. Your engagement in discussion during supervision sessions has been positive. You have been open about your struggles with substance use as you continue to use cannabis, although not as frequently as in the past, particularly as you are now employed. Your support workers including the NDIS continue to assist you and you now also attend the gym. The report confirms that you do not have any other outstanding court matters.
When considering sentence in this matter, I am required to consider that aggravated carjacking is a category 1 offence pursuant to the Sentencing Act 1991.[1] The Act is prescriptive in the type of penalty to impose, being a sentence of imprisonment. It has a mandatory minimum non-parole period of three years’ imprisonment for adult offenders.[2] There is an exemption if the court finds that a special reason exists in accordance with s10A of the Sentencing Act.
[1]Sentencing Act 1991 (Vic), s 5(2G)
[2]Ibid, s 10AD.
Relevantly, s10A (2) states:
'… a court may make a finding that a special reason exists if—
(c)(ii)the accused…..has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.'
It is submitted on your behalf that a special reason exists as:
· you suffer from impaired mental functioning due to a neurological impairment which would make your burden of imprisonment substantially and materially greater than the ordinary burden, and
· substantial and compelling circumstances that are exceptional and rare justify the imposition of an order other than a custodial order.[3]
[3] Section 2B Sentencing Act 1991 (Vic) outlines facts that must and must not be taken into account.
The following factors, in combination, are said to establish your special reasons:
·low-average cognitive capacity overall with measured deficits that would put you into the extremely low range (Full Scale Intelligence Quotient (FSIQ) = 67) that needs to be considered with caution.[4] A person who would be confidently considered to have such a low IQ would be considered intellectually disabled.
[4]Paragraph 10, Bea Raymond’s assessment.
·Dr Laura Anderson provides a conservative estimate of the FSIQ between 66–83, which puts you in the extremely low to below average range;
31Other reasons include:
·Neurological impairment.
·You have received NDIS funding since 2022.
·Deafness.
·Vulnerability in custody.
·Stable family support.
·The support of Youth Justice.
·Your barriers to employment.
·Lack of prior convictions.
You rely on the following material in support of your counsel’s submissions:
·cognitive assessment by Ms Bea Raymond, consultant forensic psychologist, dated 2 May 2023.
·mental health assessment from Mr Graeme Miller, psychologist, dated 12 January 2024.
·The neuropsychological report from Dr Laura Anderson dated 29 January 2024.
·an employment support letter from Mr Tony Mantini, case manager from ‘Immerse and Inspire’, dated 20 May 2024.
·Youth Justice updates, as part of supervised bail progress reports, dated 20 May, 29 October and 12 December 2024.
33Ms Raymond, forensic psychologist, administered a Wechsler Adult Intelligence Scale [WAIS IV]. She found that overall, you fall into the low cognitive capacity, although she noted that your results ought to be viewed with caution due to your hearing impairment.
In the psychological report prepared for court by Mr Miller, he opines that:
‘hearing impaired people are considered at a higher risk of adverse social and emotional development which can lead to problem behaviours, because of the profound effect hearing loss can have on a person’s socialisation, communication, educational development and access to community support. In addition, Adam’s past antisocial behaviours may have been a means of gaining a sense of control and empowerment over his circumstances that he may view as limited because of his disability and associated social marginalisation. Importantly, as indicated in the comprehensive mental health assessment, Adam’s psychological condition, drug use and hearing impairment would be considered to compound any potential for risk and affect his current level of societal functioning.
Adam requires access to appropriate mental health supports for assessment and management as well as support regarding his hearing impairment.’[5]
[5] Report of Graeme Miller, p4.
Dr Laura Anderson conducted a neuropsychological assessment, at the request of your solicitor. In a report for court, she outlines your personal circumstances. Approximately six months prior to this assessment, a cognitive assessment revealed that your verbal skills, attention and working memory skills fell within the 'extremely low' range. Your information processing skills fell within the borderline range and your non-verbal perceptual skills fell within the low-average range. She opined that your disability is related to your profound deafness. It is clear that you present with significant cognitive, adaptive and functional impairments. Dr Anderson considers that you have a significant neurological impairment:
'It is clear that Adam demonstrates significant impairments across most domains of cognitive functioning to the extent that the functional impact of these deficits undoubtedly presents as an additional form of dysfunction ……..Whilst Adam does not present with an acquired brain injury or a neurological condition in the typical sense that these clinical terms are interpreted, his current cognitive profile indicates that he has acquired significant functional impairment across a range of domains, likely as the result of his profound deafness. That is to say, it could be posited that Adam’s severe deprivation of auditory input since birth has significantly impacted his neurodevelopment to the extent that appropriate neural pathways required to efficiently process stimuli from his environment have not developed to typical levels, resulting in significant levels of dysfunction and impairment.'[6]
[6] Report of Dr Laura Anderson, paragraph 7.1.9.
36Her opinion is that functionally, your impairment is similar to neurological dysfunction or injury that had occurred. A disability framework may be a useful approach to address your risk factors. She hypothesises that much of your offending behaviour is a result of difficulties with your disability. Further, your deafness represents a profound and lifelong disability. You demonstrate a significant impairment across most domains of cognitive functioning. She does not believe that any specific intervention or treatment is likely to significantly resolve or improve your cognitive functioning.
37In her view, you would most definitely find a period of adult incarceration significantly more onerous than a non-deaf and/or neurotypical peer. She sets out a number of difficulties that she says you are likely to experience:
'The reality is that correctional facilities represent a highly restricted environment that is not readily or easily adjusted to meet the needs of the deaf community. Correctional facilities rely on a number of auditory cues for daily processes, such as verbal announcements over speakers, auditory alerts, the use of intercoms, and utilise predominantly talk-based mediums for the provision of programs and services. Individuals who are deaf can find it difficult to understand and follow the ‘rules’ within a correctional setting due to the significant reliance on auditory cues. As such, members of the deaf community often find themselves more reliant upon peers to function within these settings, which in turn increases their vulnerability to negative influence and potential exploitation within these settings.
There is an increased likelihood that members of the deaf community will be accommodated within restrictive settings, such as protective custody or solitary confinement, in correctional facilities as a means of ensuring their safety given their increased vulnerability within this setting. Additionally, whilst disappointing and certainly not acceptable…. there is an increased likelihood that members of the deaf community will not have as equitable access to rehabilitative programs within correctional facilities due to the practical limitations of appropriately adapting such programs to meet the needs of a culturally and linguistically diverse individual.’[7]
[7] Ibid, paragraph 7.1.11.
38The prosecution agrees with your counsel’s submission that it would be open to the court to find that special reasons exist due to both the level of required impaired mental functioning and as the combination of factors would amount to substantial and compelling reasons that are exceptional and rare.
39I accept that notwithstanding the gravity of the offence, in light of the uncontested medical material and your overall circumstances, ‘special reasons’ do exist. Ultimately, these issues justify an exception to the mandatory term of imprisonment. The parties agree that either a term of youth justice detention or a corrections order would be within range, depending on your suitability assessment.
40A presentence report prepared by Youth Justice, dated 9 August 2024, has been provided to determine your suitability for a Youth Justice Centre order. The report outlines your personal circumstances including your supportive family, ongoing use of cannabis and your significant cognitive and functional impairments. The author writes that during your involvement with Youth Justice on bail, you have demonstrated positive compliance with reporting requirements and reasonable engagement with support services. You have engaged in some intervention to address offence specific needs including Caraniche forensic youth services and Youth Justice mental health services. The report confirms that you have good prospects for rehabilitation. You have expressed a willingness to engage in programs to address your offending behaviour.
41Your youth and presentation, coupled with your predisposition to peer influence and lack of consequential thinking, indicate that you would be susceptible to negative influences in an adult prison. Your personal history and your disability reinforce your susceptibility to the negative impacts of adult custody.
42You have been found suitable for detention within the Youth Justice Centre. Should you be placed on a community correction order, Youth Justice would also support your transition to adult services to ensure continuity in case management.
43An extended presentence report was also prepared by Corrections, dated 22 October 2024. In light of the extensive medical material, Corrections sought an assessment to determine whether a Justice Plan would be an available service for a community correction order. Initially, you were not found to meet the relevant criteria. A review was requested as your treatment and rehabilitation would be better assisted by a more comprehensive treatment provider. Ultimately, you have met the criteria for an intellectual disability and been found suitable for such an order. This is most fortunate as it was decided that a standard CCO would be unlikely to provide you with adequate support.
44The Justice Plan will provide coordination with your forensic disability supports and treatment, to assist you in achieving your goals and to develop strategies to manage stressful situations more effectively. While it appears that you feel that you will prioritise your current employment, you are prepared to agree with this order. A further assessment is planned in order to best engage you with services given that you are now employed.
45I have found the assessment reports to be of great assistance in this sentencing exercise. The review undertaken by Corrections has resulted in a disposition that will assist you in your compliance with any future treatment. The treatment suggested in the Justice Plan assessment in order to target your risk factors will be given effect by this disposition. Your engagement with Youth Justice has also been a significantly beneficial form of support for you over almost two years.
46Access to appropriate treatment and support is an essential factor when considering your prospects for rehabilitation. This treatment and support will be in your own interests, as well as providing the best means of protecting the community. Therefore, I consider that the provision of a network of supports provided by a CCO with a Justice Plan will be the most appropriate means by which you can achieve rehabilitation and the community protection. You have agreed to engage and participate in the services to be provided.
47I take into account the maximum penalty for this offence and current sentencing practices. Given your deafness and your ongoing mental impairment that is similar to a neurological dysfunction, I accept that your moral culpability and the sentencing principles of deterrence, denunciation and just punishment are of less relevance when formulating the appropriate disposition.[8] As I have said, the ongoing supervision and treatment provide the most effective protection for the community, as well as being in your own interests.
[8] See Muldrock v The Queen [2011] 244 CLR 120.
48You have been subject to conditions of bail for almost two years, which have had a substantial imposition on your lifestyle and has resulted in a level of punishment that I take into account. You have not reoffended for more than 16 months.
49At the time of this incident, you were aged 18 and you are now 20 years of age. The mitigating effect of your youth remains relevant and I also take it into account.
50Balancing these factors as best I can, I will impose the following penalties.
Charge no.
Charge
Penalty
1
Aggravated car jacking
Conviction + 12-month Justice Plan CCO
Summary charge 3
Commit indictable offence on bail
Proven and dismissed
Disposal and Forfeiture
Made by consent
Licence suspension
6 months, backdated to 27 May 2024
S6AAA
12 months Youth Justice Detention
PSD
2 days
51You are going to be placed on a CCO for 12 months and I now need to go through the conditions.
52You are to attend the Broadmeadows Justice Services Centre within two working days of the commencement of the order, so by 4 pm on Friday 20 December, you need to sign up for the CCO.
· You are to be under the supervision of Corrections.
· To participate in drug treatment as directed.
· Mental health assessment and treatment as directed.
· Offender behaviour programs as directed.
· You are to comply with the Justice Plan.
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