Director of Public Prosecutions v El-Haouli

[2019] VCC 566

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01276

DIRECTOR OF PUBLIC PROSECUTIONS

v

OMAR EL-HAOULI

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2019 (Plea)
DATE OF SENTENCE:	26 April 2019
CASE MAY BE CITED AS:	DPP v El-Haouli
MEDIUM NEUTRAL CITATION:	[2019] VCC 566

REASONS FOR SENTENCE
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Subject:  Sentence
Catchwords:              Common assault – Theft.
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. James
For the Accused	Mr T. Fitzpatrick

HIS HONOUR:

1Omar El-Haouli, you have been convicted by a jury of one count of common assault of Cheree Everingham and one count of theft of a mobile phone.  The circumstances of your offending are that on 31 October 2016 you and another young man named Creely went to a residence at 16 Sutherland Court in Altona Meadows which I will simply refer to as the house.  Three persons lived at the house at that time - Cheree Everingham, Ahmed El-Badoui and Jason Molik. 

2The reason for your visit to the house is uncertain.  In your record of interview with police, you said that your friend Creely had asked you to accompany him to the house.  You said that he had asked you to come with him, that they - unidentified - but they are trying to bash him and that you were sick of him, as in sick of Creely.  On its face, that provides little, if any, reason for attending the house on the day but that is what you told the police. 

3You did not tell police that you knew why Creely wanted to go to the house or what had actually happened to him on earlier occasions when he visited the house.  What is clear is that you went with Creely to the house on that day. 

4What happened when you got there was the subject of some conflicting evidence.  El-Badoui was apparently home at the time of your arrival.  His evidence was that there was a knock on the door and when he opened it, he observed you and Creely outside the door.  When he went to close the door to prevent you from entering, El-Badoui said that you and Creely tried to push the door open and that he resisted.  I find that that occurred.   

5El-Badoui eventually gave in and ran towards the rear of the house through other rooms including the kitchen, slamming doors behind him as he went.  He headed to a room inside the house where Ms Everingham had been sleeping.  Ms Everingham's evidence, which I accept, was that having heard noises from outside her room, she moved into the hallway which led to her room to see what the noise was all about.  She observed El-Badoui coming down the hall, followed by you and another person who I accept was Creely.

6She said that the larger of the two - who I accept was you - had a raised hand holding a knife and waving it towards her.  It was this conduct which constituted the assault against Ms Everingham.  That is Charge 3.

7When you and Creely had left the house shortly afterwards, a new Samsung mobile phone, still in its box, belonging to Molik was observed to be missing from the table in the lounge where it had been shortly before you and Creely entered the house.  Later, police found the phone in a cupboard in your bedroom at your home in Laird Crescent.  It was still in the box.  It is this conduct that constitutes the offence of theft, Charge 4.

8I consider that the jury verdict of guilty in respect of Charge 4 is consistent with the finding that you took the phone from the table shortly before you left the house but also consistent with Creely taking the phone from the house and giving it to you shortly afterwards.  On either version, I consider that you were engaged in the theft on your own or as an accomplice with Creely.  I note that the phone was recovered by police undamaged and was returned to Molik.

9In addition, you have pleaded guilty to a summary offence of possessing a small quantity of cannabis L. 

10At the time of your offending, you were aged 20. You were a young offender as that term is defined in s.3 of the Sentencing Act.  You are now aged 23.  You were raised in the Altona Meadows area.  You attended the local secondary school there until Year 10.  It is reported that your school attendance was marked by detentions and suspensions due to oppositional and defiant behaviour. 

11After leaving school, you worked in various casual jobs with friends and you are currently employed by your brother as a jockey in the tow truck industry.  You live with your parents at their home.

12Your counsel informed me that you commenced using cannabis at the age of 13 and have struggled to cease using that drug.  I was also informed that you commenced using amphetamines at the age of 18 but had ceased prior to this offending. 

13You have a number of prior convictions which I consider have some relevance.  In early 2013, at the age of 16, you were placed on probation for offences including robbery, criminal damage, intentionally damaging property, resisting police and unlawful assault. 

14In late 2013, you were placed on probation for carrying and using an imitation firearm and recklessly causing injury.  In 2014, you were placed on probation for driving in a manner dangerous, unlicensed driving and intentionally damaging property.

15On 26 October 2016, you were convicted in an adult court for driving whilst disqualified, failing to stop a motor vehicle at the request of police and driving in a manner dangerous. 

16The offences for which you are now before the court were committed barely two months after your appearance in that court on 26 October 2016. 

17Subsequent to your offending on 31 December 2016, in October 2017, you were convicted of theft and obtaining property by deception.  In March 2017, you were convicted of criminal damage and neglecting to leave private property after a warning. 

18In September 2018, you were convicted in a number of offences including dangerous driving whilst being pursued by police, attempted burglary, resisting an emergency worker on duty, resisting police, possessing an offensive weapon whilst on court premises, possessing a controlled weapon without excuse, possessing cartridge ammunition without licence or permit, criminal damage, obtaining property by deception and contravening a community corrections order.

19These convictions after the offences of 31 October 2016 are not to be considered to be prior convictions but are nevertheless relevant to your prospects of rehabilitation.  For a person of your age, such a criminal record is in my view a little short of breathtaking. 

20A number of reports were tendered in evidence at your plea hearing - Reports from Brandon Partridge, a psychologist, dated 30 July 2018, Chrissy McKie an advanced case manager at the Werribee Community Correctional Services dated 9 April 2019, and from Martine Curlinda, a provisional psychologist dated 3 March 2009. 

21Mr Partridge's report was requested by his solicitor.  Mr Partridge considered that you might have an attention deficit hyperactivity disorder but this would require further investigation.  It appears that no further investigation was obtained after July 2018 and I do not assume or find that you have such a disorder. 

22Mr Partridge considered that you were diagnosed as having an antisocial personality disorder and a substance use disorder relating to cannabis.  He considered that you would benefit from engaging with a psychiatrist and further cognitive assessment.  He thought that you had suffered from a lack of insight into your antisocial tendencies.  He considered that you would benefit from therapy addressing irritability and aggressiveness, anger management and attention strategies with social skills and self-esteem training.

23Going back some nine or ten years to 2009, Ms Curlinda considered that your full scale IQ was within the borderline range but had improved from an earlier 2006 assessment.

24Recently, Ms McKie reported concerning your non-compliance with conditions concerning supervision, drug and rehabilitation treatment and mental health guidance in relation to the community correction order that was imposed on you in August of last year.  Should that be August or September, Ms James?  Is it one and the same as the ‑ ‑ ‑ 

25MS JAMES:  Your Honour, I believe there was some mention of some confusion of date.  But if my friend says September, I will not dispute that.

26HIS HONOUR:  Yes, well, in any case, if I change that to mid-2018, I do not think it matters.  Thank you.

27MS JAMES:  Thank you, Your Honour. 

28HIS HONOUR:  Your counsel submitted that an appropriate sentence for you would involve a further community corrections order. 

29I am in possession of a recent report from Jess Johncock, also of Corrections Victoria.  Her report indicates that you have been assessed as having a high risk of re-offending.  Further, you are considered unsuitable for a further community corrections order.

30Whilst I appreciate the decision as to how to sentence you is mine and mine alone, and the fact that Corrections Victoria might consider you unsuitable does not bind me in any way. 

31Notwithstanding that the jury found you not guilty of charges of aggravated burglary and not guilty of assaulting Ahmed El-Badoui, the assault on Ms Everingham was a serious one.  In the circumstances, your use of a knife, whether it was a knife that was brought by you to the house or a knife found by you at the house after you entered it, your use of a knife would have likely been a terrifying experience for her.  It is indeed fortunate that Mr El-Badoui managed to protect her by pulling into her bedroom behind him and securing the door, preventing you from entering.

32You had no business escorting Mr Creely to the house and entering the house.  I consider that you have shown no remorse for your offending whatsoever.

33There has been some delay between the offending behaviour and the hearing of your trial and a minor delay since then on the hearing of your plea and sentence.  But I consider that that may have more relevance if you had in that time used the time constructively to demonstrate that you had either rehabilitated or been well on the road to rehabilitation.  I do not consider that you have done so. 

34I consider that your prospects of rehabilitation in all the circumstances are moderate at best.  I can only hope that you will mature in the years to come and learn to play a meaningful role in the community.  If you do not, you are likely to be spend a large part of your life wandering in and out of courtrooms such as this and wandering out of prison of one sort or another.

35You are in a position where the vast majority of your lifetime lies ahead of you rather than behind you.  And it remains up to you as to how you will conduct yourself in that period.  In all the circumstances, I do not consider that the purposes for which I am required to sentence you can be satisfied by a non-custodial sentence notwithstanding your age at the time of offending

36Mr El-Haouli, on the charge of assault of Cheree Everingham, you will be convicted and sentenced to a term of imprisonment of ten months. 

37On the charge of theft, you will be convicted and sentenced to a term of imprisonment of two months of which one month will be served concurrently with the term imposed for the assault offence. 

38On the charge of possession of cannabis, you are convicted and fined the sum of $500. 

39It follows that the total effective term of imprisonment is 11 months and I direct that you serve a minimum of nine months in custody before being eligible for parole. 

40I am advised and accept that counsel tell me that you have already been in custody in relation to these matters for 32 days and I direct that that period be treated as time already served pursuant to this sentence.

41Ancillary orders, Ms James, if any?

42MS JAMES:  Your Honour, there is disposal orders in respect of the knife and the cannabis.  The telephone is being returned.  Your Honour's associate has printed out those orders that were filed with the court.  There is already a DNA profile on the system for this defendant.

43HIS HONOUR:  It is just the disposal order then?

44MS JAMES:  Just the disposal order, Your Honour. 

45HIS HONOUR:  Thank you.  And that relates to the small silver flick knife and the zip bags containing cannabis L.

46MS JAMES:  Yes.

47HIS HONOUR:  Yes.

48MS JAMES: Yes, Your Honour. I am just going to have a quick reference to s.11 of the Sentencing Act on the parole provisions, Your Honour.  I make no submission yet.  I just need to look it up.

49HIS HONOUR: Better have a look myself. Yes, s.11.

50MS JAMES:  Yes, Your Honour.

51MR FITZPATRICK:  I anticipate where the learned prosecutor is going to address, Your Honour.  Sub-section 2.  If the court sentences an offender to be imprisoned in respect to an offence for a term of less than two year but not less than one year ‑ ‑ ‑ 

52HIS HONOUR:  Yes.

53MR FITZPATRICK:  ‑ ‑ ‑ the court may as part of the sentence fix a period during which the offender is not eligible to be released on parole which ‑ ‑ ‑ 

54HIS HONOUR:  So what are you suggesting?  That there is no non-parole period?  That because of the length of term of the imprisonment being less than 12 months ‑ ‑ ‑ 

55COUNSEL:  Yes, Your Honour.

56MS JAMES:  That is my concern, Your Honour.  There is no eligibility to fix a non-parole period.

57HIS HONOUR:  I appreciate you bringing that to my attention and I should rectify that error overall forthwith.

58MS JAMES:  Yes.

59HIS HONOUR:  I think it will ‑ ‑ ‑ 

60MS JAMES:  I will just have a review, Your Honour.  I am sorry, Your Honour.  I am thinking on my feet.  Could you bear with me?  I am so sorry.

61HIS HONOUR: Yes, certainly. Are you still dwelling on s.11?

62MS JAMES: I am dwelling on s.11 and I am looking at the subsequent amendments to that section. Sub-section 2 of s.11 relates to a term of imprisonment for one offence. Your Honour, in this matter, there are two offences for which you have sentenced Mr El-Haouli.

63HIS HONOUR:  I have, on an aggregate basis.

64MS JAMES:  Both of which are less than one year in Your Honour's decision at this point.

65HIS HONOUR:  Yes.

66MS JAMES: Sub-section 4 of s.11 says, "If a court sentences an offender to be imprisoned in respect of more than one offence, any period fixed under sub-s.1 or 2 must be" - any non-parole period that is - "must be in respect of the aggregate period. The offender will be liable" ‑ ‑ ‑

67HIS HONOUR:  Just one moment.  If a court sentences an offender to be imprisoned in respect of more than one offence, any period fixed under (1) or (2) must be in respect of the aggregate period of imprisonment" ‑ ‑ ‑ 

68MS JAMES:  Yes.

69HIS HONOUR:  ‑ ‑ ‑ "that the offender will be liable to serve under all the sentences then imposed."  Well, I think I have said that, have I not?

70MS JAMES:  Yes, indeed.  But Your Honour, the thing about sub-s.4 is that it does not set that 12-month minimum.  And it is not clear in my submission whether sub-s.2 applies where Your Honour is sentencing an offender in respect of two offences as he ‑ ‑ ‑ 

71HIS HONOUR:  It may not be but I think there is an inherent risk that it may and ‑ ‑ ‑ 

72MS JAMES:  There is some risks, sir.

73HIS HONOUR:  I do consider this that one of the reasons that I imposed a non-parole period was that firstly he will have a period where he is under some supervision in the course of his parole period by his parole officer.

74MS JAMES:  Yes.

75HIS HONOUR:  That is assuming parole is granted which is by no means a certainty.

76MS JAMES:  Yes.

77HIS HONOUR:  It would generally require - often require some satisfaction on behalf of the Parole Board that the offender has shown true remorse for his offending.  Not always but often.  At the moment, I consider that Mr El‑Haouli has shown no remorse.  But that is for down the track.

78MS JAMES:  Yes.

79HIS HONOUR:  But I do consider that on leaving prison, a period of supervision whether it be by parole officer or by a case manager pursuant to his previous community corrections order is likely to be of assistance to him and is a desirable thing for him to have that or those forms of supervisions.

80MS JAMES:  Well, the other matter, Your Honour, would be - I would be asking Your Honour to take into account is that a non-parole period fixed under sub-section - 11(2) must be at least six months less than the term of sentence so that ‑ ‑ ‑ 

81HIS HONOUR:  Yes.  Well, I think I am convinced that I should not impose a non-parole period.  But having said that, that then causes me to reconsider the full - the head sentence if you like of ten months.

82MS JAMES:  Yes, Your Honour.

83HIS HONOUR:  And I am inclined to reduce that to nine months to allow for a further period of either parole supervision or community corrections order supervision.  So I will amend the sentence on the charge of assault and theft on an aggregate basis to a term of imprisonment of nine months - I am sorry.  I am confusing myself here.  It would be nine months in relation to the assault.

84MS JAMES:  Yes, Your Honour.

85HIS HONOUR:  On the charge of theft, that will remain unchanged.  You will be convicted and sentenced to a term of imprisonment of two months of which one month will be served concurrently.  And that then brings the total effective term of imprisonment to one of ten months and I will not impose a non-parole period.  Is that all clear?

86MS JAMES:  Yes, Your Honour.  I will just confirm - my head was down.  The pre-sentence detention Your Honour declared is 32 days?

87HIS HONOUR:  Thirty-two days.

88MS JAMES:  Yes.  And Your Honour is content to make those disposal orders?

89HIS HONOUR:  Yes, I am.

90MS JAMES:  As the court pleases.

91HIS HONOUR:  You did not have anything to say, Mr Fitzpatrick, about the disposal orders?

92MR FITZPATRICK: No. I would still be of the opinion, Your Honour, that under s.11 even though s.4 speaks of an aggregate of sentences, it still refers back to sub-s.2 and sub-s.2 is the prohibitor to a non-parole period under 12 months.

93HIS HONOUR:  Well, the amendment to my sentence deals with that, does it not?

94MR FITZPATRICK:  That would give effect to that, Your Honour, yes.

95HIS HONOUR:  Yes, thank you.

96MR FITZPATRICK:  Yes, Your Honour.

97HIS HONOUR:  The Magistrates' Court.  The only summary offence for which I understood I was to sentence Mr El-Haouli was in relation to the possession of cannabis.  And I believe I have indicated ‑ ‑ ‑ 

98MS JAMES:  Well, the possession of cannabis was an indictable offence.  The other summary offence of possessing an offensive weapon was withdrawn by leave of the court.

99HIS HONOUR:  Was withdrawn.  Right.

100MS JAMES:  Yes.

101HIS HONOUR:  And correct me if I am wrong, have I not already said that on the charge of possession of cannabis, he is convicted and fined the sum of $500.

102MS JAMES:  Yes, yes.

103MR FITZPATRICK:  Yes, Your Honour.

104MS JAMES:  Your Honour has discretion to grant a stay of time to pay that. 

105HIS HONOUR:  Well, if ‑ ‑ ‑ 

106MS JAMES:  It is ordinary to allow a ‑ ‑ ‑ 

107HIS HONOUR:  Well, if an application is made ‑ ‑ ‑ 

108MR FITZPATRICK:  We will not seek a stay, Your Honour.

109HIS HONOUR:  Thank you.

110MR FITZPATRICK:  We will not seek a stay because that way he can call it in straight away.

111HIS HONOUR:  Yes.  And in relation to the other matter which was withdrawn ‑ ‑ ‑ 

112MS JAMES:  Yes, Your Honour.

113HIS HONOUR:  ‑ ‑ ‑ do you suggest that any further order is required on my part?

114MS JAMES:  No further order other than withdrawn - Your Honour could mark it withdrawn and struck out if Your Honour so requires.

115HIS HONOUR:  Perhaps I should just note that another summary offence relating to using a controlled weapon without an excuse has been withdrawn by the prosecution.

116MS JAMES:  As the court pleases.

117MR FITZPATRICK:  As Your Honour pleases.

118HIS HONOUR:  Is there anything else that counsel are troubled by ‑ ‑ ‑ 

119MS JAMES:  No, sir.

120MR FITZPATRICK:  No, Your Honour.  

121HIS HONOUR:  ‑ ‑ ‑ or consider I should further consider?  Thank you.   Yes, adjourn the court sine die.

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