Director of Public Prosecutions v El Kinouni

[2019] VCC 431

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02004

DIRECTOR OF PUBLIC PROSECUTIONS

v

IHAB EL KINOUNI

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 April 2019
CASE MAY BE CITED AS:	DPP v El Kinouni
MEDIUM NEUTRAL CITATION:	[2019] VCC 431

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	Mr T White
For the Accused	Ms K Blair

HIS HONOUR:

1Ihab El Kinouni, you have pleaded guilty to one charge of conduct endangering person, one charge of being a prohibited person possessing a firearm, one charge of being a prohibited person possessing an imitation firearm, one charge of causing by an explosive substance an explosion likely to cause serious injury or damage to property, and one charge of arson.

2The events that give rise to these charges occurred over two days in mid-November and two further days either side of Christmas in 2017.  At that time, you were living in St Leonards.

3The first victim had done some mechanical work on your car, but a dispute arose as to the work and payment.  In the early hours of 10 November, you set up and lit a homemade device on the front veranda of the victim's house. 
As he left for work in the early morning, the victim found the device well alight.  The victim was able to put it out.  Later examination revealed how dangerous it was.  To quote from the prosecution opening, at paragraph 11, it said:

"The incendiary device consisted of a cylindrical silver can containing kerosene with foil and a cloth wick.  It contained a damaged Jack Daniel's premix can which itself contained a Glade brand aerosol canister in two pieces, and six yellow industrial Ramset primer cartridges.  There were circular pieces of tin foil and the larger can had an external wrapping of silver foil and a quantity of building insulation, or Sisalation."

4A dispute between you and the victims continued on beyond this leaving of that device on the veranda.  It continued on, and on 13 November, the victims came to your premises seeking the return of some car keys.  There were verbal exchanges.  You then came out of your carport with what the victim thought was a pistol.  The victim ran to escape.

5You have pleaded guilty to being a prohibited person in possession of a firearm.  Later searches of the premises did not find the handgun.  What was found at that time was an item resembling a police baton, but the victim did not agree that that was the item that you were holding at that time.

6On 24 December, another man was walking past your unit in St Leonards. 
For some unknown reason, you believed this man had damaged your car. 
You accused him of this and pointed a handgun at him.  You pleaded guilty to being a prohibited person in possession of an imitation firearm.

7You continued to accuse this man of damaging your car, and in the early hours of 28 December 2017, you went to what you thought was his house in
St Leonards.  You were in fact mistaken, and in the premises were occupants who had nothing to do with the man that you had claimed had damaged your car.

8You set an explosive device in a ute you thought was connected to the man you claimed had damaged your car.  That device was removed, with some damage caused to the ute.  You then returned later and set the ute on fire with a Molotov cocktail device.  Neighbours were able to extinguish this dangerous fire.

9The investigations revealed that you had used shotgun shells, flares and what were called "cased fireworks" as well as petrol in the incendiary device that was used on the ute.  Searches of your premises found incriminating items connected with the construction of various incendiary or explosive devices. 
In your car, you found firearms and shells.  These are very concerning matters.

10Although as it turned out, fortunately, the damage that you caused on each occasion was limited.  Nonetheless, the risk you created to people and property - those risks were considerable.  The homemade explosive devices were unpredictable and had dire potential.  You were motivated by ill-considered revenge, often misdirected at persons perfectly innocent and with no connection to whatever gripe you had at the time about cars or the like.

11What follows is that I consider that these crimes are serious.  The gravity is not at the highest end, neither is it simply at the lowest end, as your counsel initially contended.  The ultimate damage caused is just one factor to be considered.  The risks and endangerment remain important considerations.  The planning involved reveals your determination to cause grief and fear to the victims, and added to this is that your motivation of revenge elevates your moral culpability.

12You were arrested on 28 December 2017 and have remained in custody since.  Within that time, you have been sentenced by the Magistrates' Court twice for other crimes.  You were on bail for those matters at the time you committed the crimes that are before me.  This adds to the seriousness of your offending.

13You have a concerning criminal history dating back to 2011.  The crimes involved breaches of intervention orders, stalking, threats, possession of weapons and ammunition, and criminal damage.  Later, you were dealt with for drug offences and further concerning weapons and threat offences.  You have breached community corrections orders and have, as a result of your crimes and breaches, served terms of imprisonment imposed by a magistrate.

14Your past criminal conduct and its nature makes this offending more serious and lowers my confidence in you achieving complete rehabilitation.  This also adds to the need for deterrence to you.  As noted, your past offending has been in the last eight years or so.  That is when you had become a mature adult.

15You are now 46.  Although you were born in Egypt, you are Libyan and you grew up in that country.  You achieved a tertiary level education and worked in a variety of jobs, as well as having time in the armed forces.  In your 20s, you left Libya and your large family, who remained there.  You moved from there to live in Italy and in Malta.

16You met your Australian-born former wife in Malta in 2008.  You married there and came to Australia.  You have two children of that relationship. 
That relationship ended in 2012, with intervention orders put in place, but which you then breached and commenced upon some of the criminal matters that
I have referred to.  But up until that time, through your upbringing in Libya and beyond that until 2011, you had not been in any trouble at all.

17You have not been able to see your children for some years, and this is a matter that upsets you.  Your problems with drugs arose in 2012.  The forced abstinence at times when you were incarcerated in the past has not lasted on release.  It is hoped that the period of time that you spend in custody awaiting this sentence might have a different result.

18You used significant amounts of ice and cannabis during the time that you were at liberty from 2012 onwards.  You now recognise you have a problem with drugs.  And while you were on bail and in custody in recent times, you had done courses to try and deal with this significant problem.

19You were in a new relationship at the time of your offending.  You have not had any contact with your then-partner while you have been on remand, and it remains unclear whether you can resume that relationship on your release.

20The medicolegal neuropsychological assessment that was done by Dr Treeby reveals that you have a low borderline IQ of 75.  Your attention and memory functions were assessed as being very low.  Further, the neuropsychologist
Dr Treeby noted your history of mental ill health from 2012 and a diagnosis was made of major depressive disorder. 

21At this point, after review, Dr Treeby agreed with that diagnosis of major depressive disorder.  This led Dr Treeby to conclude that you do not cope well in prison and your mental health may well get worse in custody.  That said,
I was told of your efforts to engage in rehabilitation programs while you have been in custody.  Those efforts of late are to your credit.

22But overall, I consider your fragile mental health is such that I should and will mitigate the penalty by reason of the fact that prison will be more onerous on you than others.  Beyond that, you have physical problems to the extent that you now walk with the aid of a mobile walker.  This is because of back problems you have suffered while in prison - two assaults.  These matters make prison harder for you; that is, the fear that those assaults have engendered, together with all the physical problems that you have.  I will ensure that these matters are given their appropriate mitigatory value.

23Your plea of guilty is important.  It finally came after a failed sentence indication hearing on 8 March.

24At the sentence indication hearing and on the plea, your counsel sought a combined community corrections order together with a term of imprisonment.  In the end, I did have you assessed for a community corrections order.

25The report I received was thorough, perhaps more so than other reports I have received in the past.  What became clear is your insight into your past offending and your past history of non-compliance with community corrections orders.  You told the community corrections officer that at the time of the offending, you had:

"given up on life and used drugs."

26This followed you being separated from your young children.

"In regards to past contraventions, the officer writes, "Mr El Kinouni commented that he 'didn't take them seriously because I didn't want to stop, but now I know I need the support of others and I am desperate'."

27You added:

"I promise to take it seriously, because now I know I need all this help badly."

28The report writer went on:

"Mr El Kinouni's claims are somewhat supported by the autonomous agency in accessing treatment."

29I take that to mean that your voluntary engagement with treatment for drug dependency whilst in custody, and further, your engaging in vocational courses.  The community corrections officer then concluded:

"While Mr El Kinouni's desperation to be released from custody was anticipated, the writer is of the view this has significant potential to translate as compliance with a further community corrections order.  Mr El Kinouni's self-reported motivation to comply with an order for the first time in his community corrections service history, alongside his first longitudinal period of abstinence of 380-odd days he has been detained since his drug use began.  This service has referred Mr El Kinouni's drug screens obtained in custody which confirm his claims of abstinence.  In light of this, Mr El Kinouni has been assessed as a suitable candidate for a further community corrections order."

30In light of this report, I have revisited the decision of Boulton v The Queen and other cases that have followed that important sentencing decision.  It seems on reflection that yours is a case to use a community corrections order to simultaneously punish and help you reform as you acknowledge now that you need help to ensure that you do not give up again and turn to drugs

31The crime of arson specifically allows for longer community corrections orders to further facilitate treatment for that type of offending.  Given your offending has a number of examples of using devices to cause fear and damage,
I consider the treatment programs for arson-type offending to be appropriate for you.  The community corrections assessment report recommended such specialised programs.  It said:

"Given the nature of the programs, the condition to assess Mr El Kinouni for specific programs to address his offending behaviour is respectfully endorsed.  Consistent with arson charges, Mr El Kinouni will participate in assessment and intervention within the specialised offender assessment and treatment service.  It is recommended that the order be of at least 18 months' duration to facilitate completion of the SOATS program."

32You have been in custody now for some time, 386 days.  As noted, you have done two sentences from the Magistrates' Court, thus your time in custody attributable to this offending is 386 days of about 420-odd days that you have been in custody.

33In all the circumstances, given the significant level of commitment that will be required to do the special programs and treatment on a community corrections order, and given your physical health problems, further punishment by way of unpaid work is not required in this case.

34In the end, I am persuaded that all sentencing purposes can be met by imprisonment and then a lengthy community corrections order.  There must be some cumulation due to the different offences at different times directed at different victims, but I will approach cumulation guided by the principle of totality and in a moderate way.

35Mr El Kinouni, for committing the crime of conduct endangering persons, you are sentenced to nine months' imprisonment.

36For committing the crime of being a prohibited person in possession of a firearm, you are sentenced to nine months' imprisonment.

37For committing the crime of being a prohibited person possessing an imitation firearm, you are sentenced to six months' imprisonment.

38For committing the crime of causing by explosive substance an explosion likely to cause serious injury or damage to property, you are sentenced to nine months' imprisonment.

39For committing the crime of arson, you are sentenced to 12 months' imprisonment.

40That last sentence is the base sentence, and I order that two months of Charge 1, two months of Charge 2, one month of Charge 3 and one month of Charge 4 are cumulative upon each other and upon the sentence imposed on Charge 5 of arson. 

41That gives a total sentence of 18 months.

42I decline to impose a minimum term, because I will move to impose, in addition to the sentence of imprisonment, a community corrections order 27 months in length.

43I declare that 386 days of the sentence of 18 months that I have just imposed is part of that sentence, and ensure that this declaration is entered into the records of the court, so the prison authorities are well aware that you have already served 386 days of the sentence of 18 months that I have imposed.

44On the community corrections order, in addition to the mandatory conditions, what is required in your case is treatment and assessment for mental health problems, treatment and assessment for drug abuse, specialised programs to assist you in not reoffending.  You will also be under supervision.

45The considered report from the Office of Corrections also said that in the circumstances, judicial monitoring would assist.  I thought about that, and I am persuaded by it.  There will be a judicial monitoring that will occur.  I think it is probably best in October/November.  He will be out by then, will he not?

46MS BLAIR:  He should be, Your Honour, yes.  Your Honour, Mr El Kinouni
I think will be in Bulleen.  So it he'll be in Melbourne.

47HIS HONOUR:  He is going to Bulleen by then?  Well, he can appear by video link. 

48MS BLAIR:  All right. 

49HIS HONOUR:  So the place for his ‑ ‑ ‑ 

50MS BLAIR:  CCO.

51HIS HONOUR:  ‑ ‑ ‑ CCO will be out of where?  Bulleen?

52MS BLAIR:  I'm not sure where the closest - they've put Geelong, but I think it probably should be somewhere closer to Bulleen which might be Heidelberg.  I'm not sure.

53HIS HONOUR:  I do not know.  I just read them out.  I do not know where they are.  In any event, we will get the judicial monitoring date.  I do not suppose you are any the wiser about what community corrections are close to Bulleen?

54MR WHITE:  No, I'm not.  Sorry, Your Honour. 

55HIS HONOUR:  We will wait till I come back to Melbourne which I think is
25 November in Melbourne.  25 November, 9.30.

56MR WHITE:  Thank you, Your Honour.  I've just had a quick look at that, Your Honour.  It looks like Heidelberg is the closest.

57HIS HONOUR:  Which one?

58MR WHITE:  Heidelberg.

59HIS HONOUR:  Heidelberg.  All right.  I will go with that.  What other orders were there, Mr White?

60MR WHITE:  Your Honour, there's a forfeiture order in respect of the firearms and a disposal order in relation to the items from Mr El Kinouni's address.

61HIS HONOUR:  Thank you.  I will sign orders of forfeiture and disposal shortly.   Is there any other orders, Ms Blair, that you - no?

62MS BLAIR:  No, Your Honour.  Only the 6AAA.

63HIS HONOUR:  Right.  Here it is, 6AAA:  had you pleaded not guilty to these offences and been found guilty of them, I would have given a sentence of four years with a minimum of three.

64Mr El Kinouni, I will just go through this community corrections order which will start after you are released from custody, having served a total of 18 months.  So the order will last 27 months.  Two years and three months.

65The terms that apply to all community corrections orders are you must not commit an offence for which you could be imprisoned during the time that the order is in force.  So any crime that could be punished by imprisonment if you commit any of those sorts of offences, you will come back before me for breaching this order and you will go almost inevitably to gaol again.

66You must comply with obligations and requirements under the sentencing regulations which are photographs and the like to identify you, so you have got to cooperate with Corrections in that regard.

67You must report to and receive visits from the Office of Corrections.  You must report to the community corrections centre at Heidelberg, the address is here, within two clear working days of being released from prison.  You must let the community corrections staff know within two clear working days if you change your address or job.  You must not leave Victoria without getting permission from the Office of Corrections, and you must obey awful instructions from the Office of Corrections.

68Those are the mandatory conditions.  In addition to those, the following apply to you.  You must be under the supervision of the community corrections officer for the whole 27 months.  You must undergo assessment and treatment for drug abuse and dependency.  You must undergo mental health assessments and treatment as directed by the Regional Manager.  You must participate in programs and courses that address factors relating to your offending, particularly arson-type offending.

69And you must reappear at court before me so I can review how you have complied.  That will be on 25 November 2019 at 9.30 here at Melbourne.  If you sign that order, then that is the community corrections order.  Take your time with that, Ms Blair.  All right.  You will get copies of all that.

70I thank counsel for their assistance in this matter.  Mr El Kinouni needs to be taken downstairs.  Do you want to talk to him through the interpreter, Ms Blair?

71MS BLAIR:  Your Honour, I'm content to go and see him downstairs.

72HIS HONOUR:  That is what I mean.  So Ms Orah, you might be needed by

Ms Blair to just help downstairs.

73INTERPRETER:  Sure.

74HIS HONOUR:  That is very kind.  Thank you.  But if you would not mind coming out of the dock?  You get a copy of all that documentation, Ms Blair, and thank you again.  Thank you, Mr White. 

75MR WHITE:  As Your Honour pleases.

76HIS HONOUR:  Mr Hayward.  He can be taken down.

77OFFENDER:  Thanks, Your Honour. 

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