Director of Public Prosecutions v El-Hawli

[2018] VCC 121

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00213

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAHMOUD EL-HAWLI

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 February 2018
CASE MAY BE CITED AS:	DPP v El-Hawli
MEDIUM NEUTRAL CITATION:	[2018] VCC 121

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel		Solicitors
For the Director of Public Prosecutions	Ms M. Casey	Office of Public Prosecutions
For the Accused	Mr N. Howard

HIS HONOUR:

1Mahmoud El-Hawli, you have pleaded guilty to one charge of armed robbery.  In addition you pleaded guilty to two summary offences, one of contravention of a condition of bail and one charge of committing an indictable offence on bail.

2The facts of your offending are set out in Exhibit A, the prosecution opening. 
I was informed by your counsel that I could treat this document as an agreed statement of fact.  I incorporate it into these reasons for sentence and
I sentence you on the basis of the facts set out in that document.  I need not, therefore, deal with the facts extensively suffice to say that - excuse me.  June was it, or July?

3MS CASEY:  July.

4HIS HONOUR:  July 2016 you threatened a man, a stranger, walking in the vicinity of where you were residing, with a hammer, took his mobile phone.  That offending occurred in the context of you believing that the victim was some form of undercover police officer at a time when you were a heavy user of methamphetamine and the material demonstrates you were affected to a high degree by your use of that drug.

5You were less than honest with the police, I think, when interviewed in relation to the matter.  You were on bail at the time with a condition that you not drive a motor vehicle and the summary offences for which I am dealing with you relate to those two offences.

6You have prior convictions and are admitted by you.  They include a bond for theft, drug matters and dealing with proceeds of crime.  In the past you have been dealt with without conviction results and this offending represents an escalating of your criminal conduct.  Since this offending you have been dealt with by the Magistrates' Court in relation to offending that predates and some offending that postdates the offences for which I am to deal with you. 

7None of them are prior convictions for this matter but significantly on 7 February this year the Magistrates' Court released you on a community corrections order for offences of theft of a motor vehicle, two charges.  Driving while disqualified, three charges.  Possession of cannabis and methylamphetamine, committing bail offences and some road safety offences.

8I have a mass of material before me.  You served 30 days in custody from 12 July 2016 until you were bailed on 10 August 2016 and as part of the conditions of bail you were attend an in house drug rehabilitation course with an organisation called Off Drugs Naturally.  The exhibits tendered, Exhibit 1, demonstrate that you completed a two month residential course and the material that I have been provided with indicates that although you still use cannabis from time to time you do not use methylamphetamine and have been abstinent since completing that course.

9When you appeared in front of me on a previous occasion I ordered that you be assessed for a community corrections order and I ordered a pre-sentence Forensicare report.  Those documents are now in evidence and significantly the report from Forensicare dated 7 February of this year, Dr Cidoni concludes:

"I believe that Mr El-Hawli's paranoid thinking at the time of the offending played a considerable role in his behaviour and the continued abstinence from amphetamine significantly reduces the chances of these symptoms re-occurring.  Methylamphetamine has also likely contributed to his aggression at the time of offending.  I believe Mr El-Hawli would be highly vulnerable in custody and I believe that it's highly likely that his anxiety would escalate.  I believe he has made significant gains in the community including fulltime employment and abstinence and would be able to comply with the requirements of a community based disposition".

10You are currently on medication to deal with your anxiety, which is described as a generalised anxiety in the reports I have received.  Corrections also conducted an in depth assessment of you for the purposes of assessing your suitability and concluded that there were a number of protective factors including your employment and family support, that reduce your likelihood of offending and you were found to be suitable with various conditions, to undergo a pre-sentence report.

11There was no victim impact statement filed in this case and it is easy to understand with a man your size, armed with a hammer, you - anticipate that your victim would be frightened by being confronted by someone like you. 

12That said your offending is a low level example of the offence of armed robbery and the weapon used was not a gun or a knife.  But nonetheless you with the hammer would be frightening enough.

13OFFENDER:  (Indistinct words).

14HIS HONOUR:  You understand that. 

15OFFENDER:  Yep.

16HIS HONOUR:  It is in the interests of the community that your efforts to rehabilitate yourself be promoted.  You now have fulltime employment as the exhibits show.  You've got the support of your family and although you have
re-offended since, that re-offending occurred at a time, it seems to me, where you were still under the influence of drugs and before you undertook your drug rehabilitation program.

17In any event a community corrections order, in my view, enables me to give full recognition of principles of sentencing.  I can express denunciation and punishment.  I can deter you and others from the re-offending and I can promote your rehabilitation, which is in your interests and in the interests of the community.  If you do re-offend you will breach the orders that you will be released on and if you come back, as I said, to me to be re-sentenced on a charge of armed robbery, if you breach the community corrections order you can confidently expect to be going out that door for a period of time.  Are you prepared to undergo a community corrections order?

18OFFENDER:  Yes.

19HIS HONOUR:  The sentence of the court is in relation to all three charges, armed robbery and the two summary offences, you will be sentenced on the armed robbery charge - sorry, I better withdraw that.

20On the armed robbery charge, you are sentenced to be imprisoned for 30 days.  I declare that that sentence has already been served by way of pre-sentence detention.  In addition in relation to that charge and the other two summary charges you are to be released on a community corrections order for the period of 18 months. 

21As a special condition of that order, that you perform 200 hours of unpaid community work over that period of 18 months as directed by the regional manager.  You are to undergo treatment and rehabilitation in relation to drugs and alcohol dependency as directed by the regional manager.  You must undergo any mental health assessment and treatment that may be directed by the regional manager.  You must participate in any courses designed to reduce your risk of re-offending as directed by the regional manager.  As I say if you breach that order you will be brought back before me. 

22I make an order under s.464ZF for you to provide a DNA sample for the database.  I am obliged to inform you that the authorities are entitled to use reasonable force to obtain that sample.  You will have to go to a police station, do a mouth swab.  So it is in your interests to cooperate with that. 

23Secondly I am making an order for you to pay compensation to the owner of the mobile phone in the sum of $1000.  You not only stole it but you smashed it and threw out the window.  Would you take that order - yes, what have I done?

24MS CASEY:  Just quickly, Your Honour didn't mention supervision.

25HIS HONOUR:  And supervision.  If I did not you will be under supervision.

26MS CASEY:  Thank you.

27HIS HONOUR:  All three of them.

28MS CASEY:  Armed robbery and the two bail offences.

29HIS HONOUR:  On all of them.  What is your problem, Madam Associate, did I ‑ ‑ ‑ 

30ASSOCIATE:  (Indistinct words).

31HIS HONOUR:  No, no, armed robbery, commit indicatable offence on bail and contravene a condition of bail.

32ASSOCIATE:  I'll have to redo it then.

33HIS HONOUR:  There was only three charges.  He is being released on an order in relation to all of those.  In addition on the armed robbery he has got a month in gaol which he has already done.  So would you have him sign the order if he is prepared to undergo that order?

34MR HOWARD:  Yes, sir.

35HIS HONOUR:  It is automatic a month.

36MS CASEY:  Yes.

37HIS HONOUR:  He has automatically got a month to pay a stay or a fine and a comp order.  So within the next month you will have to pay to the registrar of this court $1000 to reimburse the man who lost his phone.  Mr Howard, make it clear to him what I have said to him today, my reasons for releasing him on an armed robbery charge, which is a serious offence, will be transcribed and on the file, should he come back in the future.

38I HOWARD:  Yes, Your Honour.

39HIS HONOUR:  So it will be clear ‑ ‑ ‑ 

40MR HOWARD:  He's aware of where he stands.

41HIS HONOUR:  It will be clear not only to me but any other judge if I am not around, what I intended if he breaches.

42MR HOWARD:  Yes, Your Honour.

43HIS HONOUR:  All right, Ms Casey?

44MS CASEY:  One final thing, 6AAA.

45HIS HONOUR:  But for your plea of guilty I would imposed a term of imprisonment of 12 months with a non-parole period of six.  Anything else?

46MS CASEY:  No, Your Honour.

47MR HOWARD:  No, Your Honour.

48HIS HONOUR:  You can leave the dock and I hope, Mr El-Hawli, I never see you again.

49OFFENDER:  (Indistinct).

50HIS HONOUR:  All right.  Is there any other matters before the court?  I will stand down on the off chance they need me to do something. 

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