Director of Public Prosecutions v El-Haouli

[2023] VCC 790

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

AT Melbourne

CRIMINAL JURISDICTION

CR 22-01129

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMMED EL-HAOULI

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JUDGE:	Her Honour Judge Ellis
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2023
DATE OF SENTENCE:	17 May 2023
CASE MAY BE CITED AS:	DPP v El-Haouli
MEDIUM NEUTRAL CITATION:	[2023] VCC 790

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence

Catchwords:              Sentence – armed robbery – commit indictable offence on bail – intentionally damage property – guilty plea – young offender- considerable efforts at rehabilitation- CISP.

Legislation Cited:      Criminal Procedure Act 2009 (Vic); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Verdins v The Queen [2007] 16 VR 269; Akoka v The Queen [2017] VSCA 214; R v Mills [1998] 4 VR 235; Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342

Sentence:                  170 days’ imprisonment; 9 month community correction order - convicted and fined $200

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Hando	Office of Public Prosecutions
For the Accused	Mr T. Battersby	Greg Thomas Barrister and Solicitor

HER HONOUR:

1Mohammed El-Haouli, on 5 May 2023, after receiving submissions at an earlier hearing, I granted your application for a sentence indication. I indicated that should you plead guilty to the two charges proposed (as set out below) then, pursuant to s207(1)(a) of the Criminal Procedure Act 2009 (Vic), I would impose a sentence of a specific type, that being a combination of custodial sentence and a community correction order with no immediate term of imprisonment.

2Mr El-Haouli, you accepted that indication and you have pleaded guilty to:

·One charge of armed robbery contrary to s75A of the Crimes Act 1958 (Vic), which carries a maximum penalty of 25 years' imprisonment; and

·One charge of damaging property contrary to s197(1) of the Crimes Act 1958 (Vic), which carries a maximum penalty of 10 years' imprisonment.

3You have also pleaded guilty to a summary charge of committing an indictable offence whilst on bail, which carries a maximum penalty of three months' imprisonment or 30 penalty units.  You have consented to this charge being heard and dealt with in this court.

Circumstances of offending

4The circumstances of your offending were set out in a Summary of Prosecution Opening tendered on the plea as Exhibit A.

5The complainant in this matter is Mr Hasan Ozdemir, who was aged 33 at the time of the offence.  The complainant was known to you, as he had employed you as a labourer in his carpentry business some four to five years prior to the offending.

6On 24 December 2021, Mr Ozdemir bumped into you in Campbellfield.  At this time, the two of you exchanged phone numbers.

7On 27 December 2021 at approximately 7pm, Mr Ozdemir picked you up from your address at Craigieburn Road, Mickleham in his vehicle.  You sat in the passenger seat of the vehicle.  Mr Ozdemir stated that part of the reason for going for a drive with you was to discuss the purchase of methylamphetamine.

8Whilst you were in the car, Mr Ozdemir received a telephone call from Greenvale Medical Centre requesting that he attend the medical centre to collect a medical report pertaining to recent medical tests that he had undergone.

9Shortly after ending the call with the medical centre, Mr Ozdemir then received a telephone call from his girlfriend.  When Mr Ozdemir arrived at the medical centre with you, he was still on the phone with his girlfriend.  Once he ended that phone call, you then made reference to a bike, to which Mr Ozdemir said, “What bike?”.

10Your counsel submitted that whilst listening to the telephone conversation, you formed the mistaken belief that Mr Ozdemir was conspiring to steal your bicycle.

11You then accompanied Mr Ozdemir into the Greenvale Medical Centre.  Upon meeting with his doctor, Mr Ozdemir received a diagnosis of brain and throat cancer.  Ultimately a biopsy turned out to be negative.

12You and Mr Ozdemir then returned to Mr Ozdemir's vehicle.  The complainant told you that you would need to be dropped home, as he needed to go straight to the Northern Hospital.

13As Mr Ozdemir pulled into the driveway of your residence at Mickleham, you pulled out a knife with a silver blade of approximately 20 centimetres in length and held it towards Mr Ozdemir using your left hand.  At this time, he describes that you were suddenly very angry, as if you had 'blacked out' and that it was as if your mind was not functioning properly.

14Mr Ozdemir parked his car in the driveway of your residence and five other males exited the house and walked towards the vehicle whilst you and Mr Ozdemir remained inside.  Mr Ozdemir identified one of the males was your brother, who he knew as 'Hamze'.  The other four males were unknown to him.

15Shortly after drawing the knife, you grabbed Mr Ozdemir's black Samsung Galaxy S9 Plus mobile telephone out of the middle arm rest of the vehicle.

16Whilst holding the knife towards Mr Ozdemir, you accused him of stealing your black Samsung Galaxy S9 Plus mobile telephone.  You went on to say words to the following effect:  'I know what you're trying to do, you're going to steal my bike.  I'm going to kill you and stab you.  Give me your licence and wallet'.

17Mr Ozdemir did not know what you were talking about.  You then proceeded to punch him twice to the head with a closed fist, which impacted the left-hand side of his face and resulted in a sore tooth and jaw pain.

18The complainant complied with your demands and reached into his pocket to retrieve his wallet.  At the time, his wallet contained bank cards, a Medicare card and a driver's licence.  Mr Ozdemir then surrendered his wallet to you (Charge 1: Armed Robbery).

19After receiving the wallet, you exited the vehicle and proceeded to collect an axe from somewhere in your residence.  You then used the axe and began to smash the front windscreen and right-hand side mirror of Mr Ozdemir's vehicle, causing significant damage to the vehicle (Charge 2: Damage Property).

20Mr Ozdemir drove away from your house and drove to your father's house, Mr Ramsay El-Haouli, in Broadmeadows.  Once there, Mr Ozdemir requested your father return his wallet to him; however, was told by your father to never return to his house.

21Mr Ozdemir then attended Craigieburn police station to report the incident at approximately 8.30 pm that night.  Whilst at the police station, the complainant was feeling fatigued and so returned to his home and returned to the Craigieburn police station the following day, 28 December 2021, to make a statement to police.

22As noted earlier, you were on bail at the time of the offending.

23On 28 December 2021, Crime Scene Services conducted a forensic examination of Mr Ozdemir's vehicle.  A fingerprint located on the outside of the vehicle was identified as belonging to you.

24On 8 February 2022, investigators executed a search warrant at your Mickleham home.  An axe was located on the front porch of the property, located directly in front of the driveway.  No items were seized during the execution of the warrant.

25On the same day, you were arrested by members of the Vehicle Crime Squad.  You were questioned by police and when asked direct questions relating to the incident, you provided a no comment interview.  You were subsequently charged in relation to this offending.  You were remanded in custody.

Procedural history

26A contested committal took place on Monday 27 June 2022, wherein the complainant, Mr Ozdemir, gave evidence.  You were granted bail on that date with strict bail conditions, which included your participation in a residential rehabilitation program in Traralgon, in the Gippsland Youth Residential Rehabilitation Program. You were subsequently discharged from the program on 2 September 2022 as a result of non-compliance with certain conditions.  An application was made to revoke your bail, which was granted by this court on 13 September 2022.

27You made a further successful application for bail, which was granted on 31 October 2022, and you were released on bail with conditions that you engage with and comply with the Court Integrated Services Program (CISP).  Since your release on CISP, there have been a series of reviews, which is discussed below.

28On 2 February 2023 you made an application for a sentence indication.  At that stage you had been on CISP for just over three months and it was reported that you had engaged well with the program.  After hearing submissions from both your counsel and from the prosecution, I was not prepared to give an indication at that stage, but rather I considered that it would be appropriate to allow you to continue your bail and to give you an opportunity to further demonstrate your preparedness to work on your rehabilitation with the assistance of CISP.

29Ultimately, on 5 May 2023, after further CISP reviews, I indicated that should you plead guilty to this offending that I would be prepared to sentence you to a term of imprisonment in combination with a community correction order, if deemed suitable, and that you would not be required to serve any additional time in custody noting that you have already spent 170 days on remand.

Victim Impact Statement

30No Victim Impact Statement has been prepared.

31I note, however, that Mr Ozdemir gave evidence at the committal in which he expressed significant sympathy for you stating, 'I hate to see him there, honestly.  I love Moey and I don't want to see him there.  I want him out.'

32Clearly, despite the offending that you have inflicted upon him, Mr Ozdemir wishes the best for you.

Prior criminal history

33You have admitted a prior criminal history dating back to July 2019.  You have been dealt with at the Broadmeadows Magistrates' Court on a number of occasions for a variety of offences, mainly dishonesty and drug offences, as well as possessing controlled weapon without excuse.  You have previously been placed on a community corrections order.  Prior to this you have also engaged with Youth Justice and you are described as having engaged consistently and that you were respectful.

Nature and gravity of offending

34Your offending here was serious.  For some inexplicable reason you behaved violently towards someone who knew you and with whom you had previously worked.  It is not entirely clear why you conducted yourself in this way, armed with a knife and why you then stole items from Mr Ozdemir.  Nor is it entirely clear why you damaged his vehicle.  The presence of the knife had the potential to cause harm to Mr Ozdemir or possibly even to yourself.

35Moreover, at the time of this offending you were on bail for offences involving the possession of an imitation firearm and cartridge ammunition as well as for drug offences and possession of a prohibited weapon.  You were ultimately sentenced to 14 days' imprisonment for these offences on 1 June 2022.  This sentence was served after the period on which you were on remand and I take that period into account as part of the principle of totality.  

Personal circumstances

36Your counsel has prepared written submissions outlining your personal circumstances and these were supplemented on the plea.  A psychological report prepared by Gina Cidoni dated 31 May 2022 also sets out some of your personal background and addresses the psychological issues that you have faced.  Additionally, whilst you have been working within the Court Integrated Services Program, a number of reports have been prepared which elaborate on your personal history.  As part of the program a neuropsychological assessment was conducted and a report was prepared by Dr Amy Dluzniak, dated 5 December 2022, and a psychiatric assessment undertaken and report prepared by Dr Asiri Rodrigo dated 29 March 2023.  Each of those reports provides further detail as to your upbringing and the impact that this has had on your mental health.

37You were born in Australia in June 2001 and you were aged 20 at the time of the offending.  You are of Lebanese heritage.  Your parents separated when you were an infant and they have since each re-partnered.  You have an older brother aged 22 with whom you are in occasional contact.  You also have a number of half-siblings and stepsiblings.  You have little contact with your mother.  You have contact with your father, who has come to court regularly in support of you.  Your father works as a tiler and for a period of time he was absent as he was in custody.

38You were home-schooled by your biological mother from Prep to Grade 2 in what you recalled was a punitive learning environment.  You then attended four different primary schools between Grades 3 to 6 and completed your primary schooling at Dallas Brooks Primary School.  You report being embarrassed when you were in Grade 3 as you did not know as much as the other students.  Consequently you reportedly did not even try at school.  With additional learning supports, you repeated Grade 5.  You experienced behavioural difficulties in the classroom including distracting others and you were often involved in altercations with other students in the school yard.  You attended Hume Central Secondary College in Year 7 but you were suspended frequently and ultimately expelled for fighting with other students.  You attended Gladstone Park Secondary College for only a month.

39Once you left school, you commenced a carpentry apprenticeship with the complainant, Mr Ozdemir, which you eventually completed over four years.  Before you were remanded, you were working as a motor mechanic at KMA Salvage in Campbellfield.  Since your release on bail, you have returned to full-time employment and you are now working in a steel fabrication factory.

40You lived with your mother throughout your early primary years, but as a result of family violence inflicted by her, you went to live with your father from the age of 10.  According to a report prepared by Gina Cidoni, Child Protection were involved with your family when you were around 9 or 10 years of age.  There were times that you have resided with your paternal grandmother and aunt and also with your brother.  From the age of 15 you have experienced periods of time without a fixed address.  Your childhood was afflicted by exposure to chronic family violence, which Ms Cidoni opines has led to the onset of post-traumatic stress disorder, a condition from which you now suffer.

41You have reported no family history of neurodevelopmental disorders or psychiatric or neurological illnesses.  You reported to neuropsychologist Ms Dluzniak that you would have experienced approximately 30 hits to the head as a result of alleged assaults or altercations and from sporting injuries.  You have experienced daily headaches since childhood.

42You were diagnosed in May 2022 with PTSD due to your traumatic childhood experiences, Substance Use Disorder (which is now in remission) and Generalised Anxiety Disorder.  You reported to Ms Dluzniak that you have suffered from depression and anxiety.  Ms Dluzniak considers that you present with a history of what appears to be adverse childhood experiences including physical abuse and instability in your environment.

43Ms Cidoni noted in her report that your traumatic history and upbringing were factors in your development of a borderline personality style but, according to Dr Rodrigo, you do not meet the criteria for borderline personality disorder.  You are currently taking medication for sleep and for nightmares related to your PTSD.

44Your counsel has submitted that as a result of your exposure to childhood violence and the instability that you have experienced that the principles espoused in R v Bugmy[1](have application.  In that case, the High Court noted the relevance of the circumstances of deprivation and abuse occurring during an offender's formative years.  Here, your background and exposure to violence during your formative years is relevant in explaining your recourse to illicit drug use, which is linked to the offending.

[1] (2013) 249 CLR 571.

45I accept that the principles as set out in Bugmy have some application here.  As the High Court said:

'The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences.'

46I take the circumstances of your upbringing into account.

47There is no reliance placed on the principles set out in Verdins v The Queen[2]. In this case however, I take into account the diagnosis of Generalised Anxiety Disorder and PTSD in determining the ultimate sentence.

[2] [2007] 16 VR 269.

48Clearly substance use has played a considerable role in your offending.  You reported to Ms Jenna Brown during your assessment for a community correction order that at the time of the offending you had regularly been using methamphetamines, Xanax and cocaine.  You were 'paranoid' at the time, and believed Mr Ozdemir was going to steal your bike.

49You have reported that you began using cannabis from the age of 12.  When you were aged around 17 years, you began drinking alcohol.  You started using methamphetamine at the age of 20 and prior to your remand you were using this drug on a daily basis.  You also have used cocaine for a period of time when you were 18.  You reportedly overdosed on Xanax when you were 18 years old and attended the Northern Hospital.  You have also dabbled in GHB.  You have had a considerable struggle with substance abuse.

50Some progress was made whilst you were participating in the residential rehabilitation program.  According to a report of Gurleen Gurleen dated 24 August 2022, your overall attitude towards that program had been positive.  You were described as polite and friendly to staff and co-residents.  Although you were exited from this program in September 2022, to your credit you contacted the informant and advised that you had returned to the community and you continued to report daily to the Craigieburn police station.

51I take into account that you spent this time from 28 June to 2 September at residential rehabilitation, which involved a degree of restriction on your movements and you were required to remain on site unless granted leave.  Although you were exited from this program and there was a suggestion that there was a degree of non-compliance, you did engage for a period of time.  I accept that the program at Gippsland Youth involved a confinement and restriction of your freedoms.  Applying the principle set out in Akoka v The Queen[3], I take this time into account as part of the instinctive synthesis and have moderated the sentence accordingly.

[3] [2017] VSCA 214.

52Since you have been on bail overseen by CISP, you have managed to remain abstinent from drugs, you have not committed any further offences and you have worked hard on your rehabilitation.

53In the final report prepared by CISP, case manager Ms De Francesco notes that you have an increased sense of stability in the community and that you have achieved much whilst on the program.  It is recommended that in light of both the neuropsychological assessment and the psychiatric assessment, that you engage with a psychologist and you are currently on the waiting list to see someone.  Your CISP alcohol and drug counsellor Ms Mladenovic noted that you had remained abstinent from substance use and that you have impressed as a young man committed to change, whilst being realistic about the challenges ahead.  It is noted that you have a number of protective factors and Ms Mladenovic considers that you are in a good position to maintain the current positive behaviour change.

54I note this afternoon that I have heard from Ms De Francesco as to your motivation to your own rehabilitation and, as I have said previously, that is extremely impressive.

55You are fortunate to have the love and support of your long term partner, Anisha Sharma.  At the time of your bail application in October last year, Ms Sharma was 26 weeks pregnant with your first child.  You were bailed to reside with Ms Sharma and her parents at their family home in Craigieburn.  Your partner's mother gave evidence on the bail application as to what would be expected of you upon residing with the family.  Clearly that was successful but ultimately, as a sign of your increased independence, your bail was later varied to allow you to reside in a new home that you and Ms Sharma have set up for yourselves and your new baby, who was born in April this year.

56I accept the submission made by Mr Battersby that you have demonstrated a powerful change in your trajectory.  Your engagement with CISP has been exemplary, you are now working full time, whilst also supporting your partner and new baby.  As I have said, your efforts at rehabilitation have been very encouraging.  Given your demonstrable commitment to reform and your progress whilst on CISP, the prosecution does not submit that any further time in custody is required.  Indeed it is because of because of your efforts at rehabilitation, amongst some of the other matters such as your age and personal circumstances, that I have come to the conclusion that no further period of imprisonment is warranted.  I consider that if you were to return to custody that this may have a detrimental effect on your rehabilitation.  It is indeed in the community's interests to have you rehabilitated so that you may continue to contribute to society.

57You are now aged 21.  Given your age, greater weight should be given to your rehabilitation, having regard to the principles set out in R v Mills[4].

[4] [1998] 4 VR 235.

Prospects of rehabilitation

58In order to assess your prospects of rehabilitation I must have regard to the fact that you do come before the court with a prior criminal history.  Corrections have assessed your risk of reoffending alternatively as either medium or high.  However, as I have noted, you have made extensive efforts to rehabilitate yourself.  This bodes well for your prospects of rehabilitation, that and the fact that you are working and that you are in a stable relationship with family support.  You have managed to do all of this even with the pressures and sleep deprivation associated with having a newborn baby.

59But the reality is that people who have previously been addicted to drugs, people who would be assisted by mental health treatment, have a greater chance of success if they do not do it alone.  I consider that you have reasonable prospects of rehabilitation considering the work that you have already done, and those prospects are enhanced if you continue to remain abstinent from drugs, if you continue to engage in inappropriate treatment and particularly if you continue to remain employed.  Ultimately, Mr El-Haouli, it is up to you.

60You have been assessed as suitable for a community correction order with a number of recommendations.  One of those is that you undergo treatment and counselling both with respect to your drug use and also regarding your mental health.  It is recommended that the court attach an unpaid community work condition, and I have the power to order that a certain number of hours of rehabilitation can be credited to that unpaid community work.  This is said to provide a further incentive for you participate in the treatment and rehabilitation component of the order and I propose to do that.

Plea of guilty

61I take into account your plea of guilty.  It was not entered until relatively late, but is nonetheless of significant utilitarian value.  You have spared the community the significant expense of a trial and importantly you have spared the victim the ordeal of having to give evidence at trial.  Your plea demonstrates a willingness to facilitate the course of justice.  It is also some evidence of remorse.

62Your guilty plea has an additional value given that it was entered during the COVID-19 pandemic, where the court has faced a substantial backlog resulting from the suspension of jury trials.  Accordingly, as the Court of Appeal articulated in Worboyes v The Queen[5], your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic's effects.  Your plea of guilty should result in a perceptible amelioration of sentence. 

[5] [2021] VSCA 169.

Relevant sentencing factors

63The basic purposes for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community.  I am required, pursuant to the Sentencing Act 1991 (Vic), to take into account various factors when formulating an appropriate sentence. These include the seriousness of the offending, your culpability, the effect on your victim and your personal circumstances.

64The sentence I pass must balance the interests of the community in denouncing criminal conduct with the community's interests in seeking to ensure that, as far as possible, you are rehabilitated.  I am to have regard to protection of the community.  I also have regard to principles of parsimony.

65Whilst there is a need to consider general deterrence and specific deterrence here, as I have already noted given your age, your rehabilitation weighs heavily in the sentencing process.  The fact that you have already spent 170 days in custody goes a significant way toward addressing various sentencing principles.

66As was made clear in the guideline judgment of Boulton v The Queen[6],in an appropriate case a community correction order does provide a flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together.  And it is the case that such an order can be punitive and achieve deterrence.

[6] [2014] VSCA 342.

67Overall, I have come to the conclusion that a combined sentence is appropriate and I have made the conditions of your order such as to address your particular circumstances, the causes of the offending and in order to ensure that you have appropriate supports to minimise your risk of further offending.  The custodial period already served, along with the community corrections order that I am going to impose, will give effect to the need for the court to denounce your conduct whilst also giving effect to a punishment which is just in all the circumstances.

68As I have said, the reality is that your future is up to you, Mr El-Haouli.  You are young man, you have done a lot of work to date and that work will need to continue.  You do have a lot to work for, you have a lot to remain abstinent for and the greatest incentive should be to provide a stable home environment for your son. As I have said, I recognise the work that you have already done to date and it is for this reason that the community correction order that I impose will not be overly lengthy.  I note also that you have already spent 170 days in custody.

69Balancing all of the sentencing considerations, as I must, I sentence you as follows:

70On Charge 1 (armed robbery) and Charge 2 (damaging property), you are convicted and sentenced to 170 days' imprisonment to be followed by a community correction order of 9 months' duration.  There will be a number of conditions attached to the order.

71On the summary charge of committing indictable offence whilst on bail, you are convicted and fined $200.

72The conditions of the community correction order will be as follows:

(a)   You are to be under the supervision of a Community Corrections officer for a period of nine months.

(b)   You must perform 50 hours unpaid community work.

(c)   You must undergo treatment and rehabilitation including testing for drug use as directed by Corrections.

(d)   You must undergo treatment and rehabilitation with respect to your mental health, as directed by Corrections.

(e)   I note that 50 hours of treatment and rehabilitation may count towards the unpaid community work.

73So, Mr El-Haouli, in setting those hours down I recognise that you are working full time, that you do have the demands of a baby, but it is hoped that you will continue with your treatment and rehabilitation and those hours will count toward the unpaid community work.  And just to be clear, no further time in custody is required.

Core conditions

74There are a number of core conditions that attach to a community corrections order. 

·     You must not commit any other offence punishable by imprisonment during the next nine months and that includes the use of illegal drugs.

·     You must comply with any and all obligations or requirements of Corrections.

·     You must report to and receive visits from Corrections.

·     You must report to your nearest designated community corrections centre, which I believe is Coolaroo, within two clear working days of your release. I suggest that you do that this afternoon. 

·     You must let a Community Corrections officer know within two working days of a change of address or job.

·     You must not leave Victoria without first getting permission; and

·     You must obey all lawful instructions from Corrections.  

Those are the mandatory core conditions that attach to any community correction order.

75In a moment you are going to be asked to sign a document indicating that you have heard what those conditions are and that you understand those conditions.  If you breach the community corrections order by committing further offences, if for instance you decided not to undergo the treatment and rehabilitation component, then what will happen is that you will most likely find yourself being brought back before me on a breach of the community correction order and I would have to then resentence you for these offences.  And I would possibly have to sentence separately for the breach itself.  So it is important that you comply with the community correction order, because the last thing I am sure you want is to have to come back to court.  You have probably seen enough of this courtroom to last a lifetime.

76I declare 170 days pre‑sentence detention as time already served.

Section 6AAA Sentencing Act

77I make a declaration pursuant to section 6AAA of the Sentencing Act1991 (Vic) that but for your plea of guilty I would have imposed a term of imprisonment of two years with a non-parole period of 12 months. If you had not pleaded guilty, if you had been found guilty after trial, that is the sentence that would have been imposed.

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