Director of Public Prosecutions v El-Lababidi
[2018] VCC 1031
•9 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. AP-17-3415
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| AHMED EL-LABABIDI | Respondent |
---
JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 June 2018 & 4 July 2018 | |
DATE OF SENTENCE: | 9 July 2018 | |
CASE MAY BE CITED AS: | DPP v El-Lababidi | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1031 | |
APPEAL
---
Subject: CRIMINAL LAW
Catchwords: APPEAL – Causing injury intentionally – Resist emergency worker – Fail to answer bail – Whether appellant discharged the onus of establishing impaired mental functioning substantially reduced culpability – Whether there are substantial and compelling circumstances that justify making a finding that a ‘special reason” exists.
Legislation Cited: Criminal Procedure Act 2009; Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991.
Cases Cited:Ahmed El-Lababidi v The Queen [2018] VSCA 116; R v Martin (2007) 20 VR 14; Green v R [2001] 244 CLR 462; R v Kong [2013] 115 SASR 425.
Sentence: 8 months imprisonment with fine with a stay of 3 months; 44 days pre-sentence detention; 6AAA declaration: 18 months’ imprisonment with a non-parole period of 10 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Chruchill | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr D. Gurvich QC Mr P. Smallwood | Starke Westwood Lawyers |
HIS HONOUR:
1 By notice dated 22 December 2017, the Acting Director of Public Prosecutions appealed under s257 of the Criminal Procedure Act 2009 against the sentence imposed on you, Ahmed El-Lababidi, by the Magistrates’ Court sitting at Melbourne on 30 November 2017.
2 On 30 November 2017, you were convicted and sentenced to a Community Correction Order for a period 2 years with conditions being:
(1) you perform 200 hours of community work;
(2) you be subject to the supervision of the Secretary of the Department;
(3) you undergo treatment and rehabilitation being:
(i) assessment and treatment (including testing) for drug abuse or dependency as directed;
(ii) mental health assessment and treatment as directed; and
(iii) offending behaviour programs as directed.
(4) judicial monitoring; and
(5) you were not to consume illicit drugs as defined in the Drugs, Poisons and Controlled Substances Act 1981.
3 This sentencing order was made in respect to a number of offences that you committed on 7 April 2017, being:
(1)causing injury intentionally (Charge 3);
(2)resist emergency worker on duty (Charge 6);
(3)resist emergency worker on duty (Charge 7); and
(4)fail to answer bail between 5 July 2017 and 27 July 2017 (Charge 9).
4 According to the particulars that accompanied the notice of appeal, the offences for which you were convicted and sentenced to which the appeal relates are intentionally cause injury (Charge 3), resist emergency worker on duty (Charges 6 and 7) and fail to answer bail (Charge 9).
5 The sole ground of appeal under the notice is that the sentence imposed upon you is manifestly inadequate.
6 The appeal came on before me on 27 June 2018. In order to understand the nature of the proceedings before me, it is important to set out the procedural history of this matter. On 16 February 2018, the Director’s appeal was listed before the County Court. On 19 March 2018, the sentence imposed by the Magistrates’ Court was set aside and the following sentences were imposed:
(i) Charge 3, intentionally causing injury – 6 months’ imprisonment;
(ii) Charge 6, resisting an emergency worker on duty and Charge 7, resisting an emergency worker on duty – 1 month’s imprisonment as an aggregate sentence to be served concurrently with the sentence imposed on Charge 3; and
(iii) Charge 9, failing to answer bail, convicted and fined $500.
The total effective sentence imposed therefore was 6 months’ imprisonment together with a fine of $500.
7 Pursuant to s283 of the Criminal Procedure Act 2009, you appealed the decision of 19 March 2018. Your appeal was heard by the Court of Appeal on 1 May 2018 and the following orders were made:
(1)Leave to appeal is granted.
(2)The appeal is allowed.
(3)The sentences imposed by the County Court in the orders made by Judge Smith on 19 March 2018 are set aside.
(4)The matter is remitted to the County Court and it is directed that:
(a)the further hearing be conducted by a different Judge;
(b)the scope of the further hearing be limited to the following questions for the Court:
(i) whether the appellant has discharged the onus of establishing that his impaired mental functioning substantially reduced his culpability, for the purpose of determining whether a “special reason” exists within the meaning of s10A(2)(c)(i) of the Sentencing Act 1991;
(ii) whether there are substantial and compelling circumstances that justify making a finding that a “special reason” exists, for the purposes of s10A(2)(e) of the Sentencing Act; and
(iii) what is the appropriate sentence in all the circumstances.
(5)The appellant attend upon the County Court for mention on Tuesday, 8 May 2018 at 9.00am. (Ahmed El-Lababidi v The Queen [2018] VSCA 116)
8 You were released from custody on 1 May 2018 and at the mention conducted on Tuesday, 8 May 2018, you were admitted to bail in your own recognisance for the purposes of the Director’s Appeal.
9 From the procedural history set out above, it is plain that you spent 44 days in custody as a result of the order of the County Court.
10 When the appeal came on before me on 27 June 2018, pursuant to s259(2)(a) of the Criminal Procedure Act 2009, I set aside the sentence of the Magistrates’ Court. Thereafter the appeal proceeded in accordance with the provisions of the Criminal Procedure Act 2009.
11 Tendered as Exhibit A and read aloud in Court was a summary of your offending. In summary, on Friday, 7 April 2017 at about 11.35pm, you were observed by a neighbour trying to enter his premises situated in West Street, Glenroy. On seeing your neighbour, you ran away. You were observed by witnesses to run to your address in West Street, although the fact that it was your address does not appear to have been known to the witnesses. A witness heard banging noises which sounded to him like someone kicking in a door. D24 received a number of calls in relation to a burglary in progress. Police were then contacted in relation to a male being seen leaving your address carrying a PlayStation or similar.
12 About 11.50pm, Senior Constable Phillips, the victim of Charges 3 and 6, and Constable Flynn attended in the area of West Street, Glenroy. On their arrival, they observed you run towards the passenger side of their police vehicle as it came to a halt. You appeared to be in an erratic, agitated and aggressive state and appeared to be drug-affected to the point that Constable Flynn locked her door. You were described as erratic, all over the shop, not making sense and talking about Le Bron James and playing basketball with him and something about a king being dead. While you were talking about Le Bron James, you were emptying out your pockets and dropping receipts on the ground.
13 Senior Constable Phillips got out of the police vehicle and spoke to you before having you move to the front of the vehicle. Constable Flynn then got out of the police vehicle and went to assist Senior Constable Phillips. While Senior Constable Phillips was speaking to you at the front of the police vehicle, you had your left hand in your pocket. You were told to remove your left hand and sit down. Initially you refused to comply but shortly thereafter you did comply and removed your hand from your pocket. Senior Constable Phillips attempted to arrest you and advised you that you would be handcuffed to enable you to be searched. The Senior Constable held your left hand and placed it into a handcuff whilst Constable Flynn held your right arm. Immediately after having the handcuff placed on your left wrist, you began to resist and move around violently in an attempt to break free (Charge 6), you kept saying, “The king’s dead, I didn’t do it.” You managed to get your right hand free and swung around and struck Senior Constable Phillips to the right side of her face three times with a clenched fist (Charge 3).
14 Senior Constable Phillips sustained the following injuries:
(1)lacerations to the upper and lower lip;
(2)complete subgingival horizontal fracture of the left upper lateral incisor; and
(3)the tooth required extraction and replacement by way of a dental implant which requires 12 months to complete.
15 As a result of your conduct, Senior Constable Phillips was taken out of action and civilians assisted Constable Flynn to force you to the ground where you were held. More police arrived at the scene at about 12.00am and you were observed by them to still be struggling to get up whilst four people were holding you down. Constable Flynn received grazes and bruising to her left hand and wrist (Charge 7).
16 You were not arrested on the night of your offending. I was informed that you were admitted to hospital for a day or two as a result of injuries that you had suffered as result of your conduct. On Tuesday, 11 April 2017, at about 3.00pm you were arrested at your home in West Street, Glenroy and taken to the Broadmeadows Police Station where you were interviewed under caution. During the interview, you stated that Senior Constable Phillips had fallen into your right hand as you were falling backwards. You stated that it was a collision and she walked into it but admitted that you could have handled things better.
17 You were bailed and complied with the conditions of your bail until you attended a mention or administrative hearing and thereafter you believed that you no longer needed to comply with your conditions of bail and this remained the case from 5 July until 27 July 2017 (Charge 9).
18 Tendered as Exhibit B were two Victim Impact Statements made by senior constable Phillips, the first declared on 8 August 2017, to which there were attached a number of photographs of her injuries. The second statement was an update to the first and dated 27 June 2018. Your actions have profoundly affected Senior Constable Phillips. In her words:
“The impact to my mouth resulted in my teeth being put through my lip. One of my teeth cracked right through and down the nerve into my gums. Due to the trauma there has also been movement through numerous other teeth and I had an extremely sore neck.”
19 For a number of days your victim was unable to eat without experiencing excruciating pain. She described the process surrounding the treatment and rehabilitation as enormous and stressful. It is still ongoing and painful. Senior Constable Phillips is obliged to wear a retainer or denture with a false tooth which causes her discomfort and pain. She has a lump of scar tissue in her lip and scarring from where her tooth punctured her lip. She has struggled to sleep and has nightmares and has been prescribed sleeping tablets as well as painkillers.
20 In the three months following the assault, she had 10 dental appointments for the purposes of removing the tooth, having bone grafts conducted so that a dental implant could be put in to replace her lost tooth. As at August 2017, she had attended six doctor’s appointments in respect of her general wellbeing, 15 physiotherapy appointments to address her strained neck and four appointments with a psychologist.
21 Senior Constable Phillips has become self-conscious as to her looks, particularly when she smiles.
22 Senior Constable Phillips’ career has been impacted adversely by your conduct. Prior to being assaulted, she was due to commence a new role at the Family Violence Unit and to continue studies to progress her career towards becoming a detective. She was also due to be upgraded to perform duties as an Acting Sergeant. All of this has been put on hold. Her income has been affected adversely as she has been unable to earn penalty rates as well as the loss of increased income from acting in the position of Sergeant.
23 As at August 2017, Senior Constable Phillips still required a dental implant, veneers, reconstructive surgery or braces and further physiotherapy sessions. She was off work for six weeks and slowly returned to work starting at 12 hours per week, advancing to 18 hours and as at August 2017 was working 24 hours a week. More tellingly, her confidence as a police officer appears to me to have been shattered.
24 As at 27 June 2018, Senior Constable Phillips had to take more time off work, she was on WorkCover to deal with treatment in relation to her mental health which includes Post-Traumatic Stress Disorder, anxiety and depression as well as an adjustment disorder for which she is being treated by her general practitioner, a psychologist and a psychiatrist.
25 Tendered as Exhibit C was your criminal history. You have one appearance before the Broadmeadows Magistrates’ Court on 13 November 2014 for unlawful assault for which you were fined $800 without conviction. No information was provided to me as to the circumstances of that offending.
26 Pursuant to s10AA(4) of the Sentencing Act 1991 (“the Act”) by committing the offence of intentionally causing injury against an emergency worker on duty, a Court must impose a term of imprisonment of not less than 6 months unless the Court finds under s10A of the Act that a special reason exists. Relevantly, under s10A, a Court may make a finding that a special reason exists if:
(c)the offender proves on balance of probabilities that –
(i)at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender’s culpability; or
…
(e)there are substantial and compelling circumstances that justify doing so.
27 By their judgment, the Court of Appeal have precluded me from considering whether at the time of the commission of the offence you had impaired mental functioning and that if you did, it was causally linked to the commission of the offence, so much is plain from paragraph [1] of the judgment.
28 Accordingly, argument before me was in the main limited to the three matters set out at paragraph [1] of the judgment of the Court of Appeal.
29 Tendered as Exhibits 2 and 3 on the appeal was the report of Dr Lester Walton, consultant psychiatrist, dated 21 November 2017 and the reports of Tim Watson-Munro, consultant forensic psychologist, dated 9 October 2017 and 17 October 2017. Extracted at paragraph [56] of the Court of Appeal judgment are excerpts from the report of Dr Walton that led the Court to the opinion that there was evidence to establish on balance of probabilities that you were suffering from impaired mental functioning at the time of the offending and that your impaired mental functioning was causally linked to your offending.
30 It is a logical consequence of those findings that your psychotic state substantially reduced your culpability and this was the effect of paragraphs 21 to 24 of the outline of submissions filed on your behalf.
31 The Crown submitted that the manner by which you arrived at the psychotic state is a significant factor when that state is used to make you less blameworthy for your actions. Primarily it was submitted that your previous psychiatric history and prior awareness of the adverse effects of methylampetamine on your behaviour militated against you proving on balance that the psychotic state substantially reduced your culpability. To this end the Crown relied on Exhibit 1 being your Discharge Summary from North Western Mental Health.
32 You were admitted to North Western Mental Health as a result of a drug induced psychosis on 11 August 2014 some two years and eight months prior to the instant offending. While you were agitated and had to be physically restrained and medicated you were not described as violent in the document. It is apparent that the psychotic state was brought about by the abuse of cannabis and methylampetamine. Blood tests for the presence of illicit drugs were not conducted until three to four days after your admission (See page 2 of 5 of Exhibit 1) and do not inform your condition upon admission.
33 It was submitted that the critical factor in determining the significance of drug-induced psychosis in sentencing is the degree of foreknowledge on the part of the offender. In this respect, the appellant relied upon R v Martin (2007) 20 VR 14, particularly at paragraph [49].
34 The case of Martin can be readily distinguished from the present case on its facts because Martin had multiple experiences of drug-induced psychosis and was well aware that when he took drugs, he experienced delusions and hallucinations and in a delusional state was likely to lose rational control over what he was doing.
35 Such a conclusion cannot be drawn from a single admission to a psychiatric ward some two years and 8 months prior to the instant offending.
36 I find that you have met the onus of establishing on balance that your impaired mental functioning substantially reduced your culpability. Accordingly, I find that special reason exists so that s10AA(4) of the Act does not apply to you.
37 Having decided this issue I am not required to determine whether you have made out on balance the requirement under s10A(2)(e).
38 What I must now do, in compliance with the order of the Court of Appeal, is to determine what the appropriate sentence is in all the circumstances. This must be done applying sentencing principle in light of you having proved, on balance, the three matters set out in s10A(2)(c)(i) of the Act. It does not necessarily follow however that those findings will result in a non-custodial disposition.
39 The maximum penalty for intentionally causing injury is 10 years’ imprisonment; the maximum penalty for resist emergency worker on duty is 5 years’ imprisonment; while the maximum penalty for fail to answer bail is 2 years’ imprisonment.
40 As I am exercising the powers of a Magistrate, the maximum penalty that may be imposed for a single offence is 2 years’ imprisonment. In respect to several offences, the maximum cumulative sentence that may be imposed is 5 years’ imprisonment. However, the seriousness of an offence is informed by the maximum penalty for the offence not the maximum penalty that may be imposed by the application of ss113, 113A and 113B of the Act.
41 Objectively, the offending the subject of Charge 3 was a serious example of offending of its kind and the fact that it was committed against a police constable acting in the exercise of her duties, heightens the offence.
42 On the appeal, the Crown submission as to sentence was:
The offending calls for the imposition of an immediate custodial sentence for the following reasons:
(i)The offending involved the accused punching the complainant, a female police officer, to the face three times during the lawful execution of her duties. It is a serious example of the offence charged;
(ii)The impact of the offending upon the victim;
(iii)General deterrence, just punishment and denunciation are all relevant and important sentencing considerations;
(iv)The voluntary ingestion of drugs that led to psychosis is an aggravating feature of the offending; and
(v)The accused’s insight and remorse is limited and as such specific deterrence also has a role to play.
43 Ultimately, Mr Gurvich of Her Majesty’s Counsel, who appeared on your behalf, submitted that a sentence of 44 days’ imprisonment, being the time that you spent in custody between the decision of the County Court and that of the Court of Appeal, together with a Community Correction Order in identical terms to that imposed by the Magistrates’ Court at Melbourne, is the appropriate sentencing disposition in all the circumstances.
44 You were born in Melbourne in October 1991, and are currently 26 years of age. You have four siblings, two brothers and two sisters. You told Mr Tim Watson-Munro, in consultation on 15 September 2017, that you had a positive relationship with your siblings. Your father died at the age of 49 from a heart attack when you were in Year 7, and your mother three years later from cancer. You were raised effectively by your siblings and, in particular, your second eldest brother.
45 You attended Box Forest Secondary College, and after completing Year 10, commenced a TAFE course in electronics. You also worked part-time for Kentucky Fried Chicken (“KFC”) in order to assist the family. You told Mr Watson-Munro that you finished your training but failed to complete further training as an A Class technician. You worked at KFC in Coburg for a period of five years. You left that employment when new management took over the KFC outlet and you found yourself in conflict with them. Some three days later, you commenced working, building caravans at Campbellfield on a three-month trial. However, after that three month period, you have essentially been unemployed.
46 You have had one serious relationship that ended some two years ago after the end of your employment building caravans. The breakdown of this relationship affected you greatly. There are no children from that relationship.
47 You commenced smoking cannabis during Year 8, and then progressed to using crystal methylamphetamine (“ice”) during your teenage years. You instructed Mr Watson-Munro that your use of ice escalated following the death of your father, but you denied you had a serious addiction to the drug. On close questioning from Mr Watson-Munro, it became plain to him that your abuse of ice was more significant, and you admitted to Mr Watson-Munro brief psychotic breaks as a result of your abuse of ice. Despite your psychotic episode in 2014, as at the time of your consultation with Mr Watson-Munro you had not sought any medical, psychological or psychiatric treatment although, you told Mr Watson-Munro that you recognised, as at September 2017, that you needed treatment.
48 You instructed Mr Watson-Munro that you were admitted to a psychiatric ward at Broadmeadows in 2014 for three weeks, and that after a period, you absconded from the hospital. This history is at odds with Exhibit 1 on the appeal.
49 Mr Watson-Munro found you well-oriented in time, place and person, with no indications of major psychiatric disturbance. He assessed you as falling within the low-average category of intelligence and that there was no indication of intellectual disability. Mr Watson-Munro administered the Beck Depression Inventory, which is a tool based on self-reporting, the results of which are used to assess the presence of depression. Ultimately, in his first report, Mr Watson‑Munro formed the view that you had a depressive illness and suffered from anxiety and paranoia, further that your judgment was impaired, as was your impulse control and capacity for consequential thinking. Further he opined that you expressed appropriate remorse, I will return to this issue.
50 There is a recurring theme throughout Mr Watson-Munro’s first report that you have been prescribed medication but that you have been non-compliant with taking it. It was put to me on your behalf that this was a reference to the medication prescribed to you by North Western Mental Health (See Exhibit 1).
51 In Mr Watson-Munro’s second report dated 17 October 2017, he opines: “It is abundantly clear that your client has suffered from a major depressive disorder referable to presentation and psychometric testing.” Mr Watson-Munro referred to you being on anti-depressant medication for some time now, although no submissions were made to me in respect of that nor the effect of the medication on you.
52 Your presentation to Dr Lester Walton on 16 November 2017 appears on its face to be markedly different to how you presented to Mr Watson‑Munro. Dr Walton described your presentation to him in terms that you were attempting to be cooperative, but that you were a chaotic historian and that it often took multiple questioning and the slow dissection of your responses before any meaningful answers could be obtained. You were restless and agitated, you described yourself as feeling hungry but “very relaxed, comfortable”, which, according to Dr Walton, did not accord with his observations. At one stage, you offered to feed Dr Walton at a KFC store and also to help him with his work for the rest of the day. You were muddled in your thinking and acknowledged that you entertained paranoid notions in the past surrounding the use of methylamphetamine. You were somewhat disoriented in time.
53 While you told Dr Walton that you began to smoke cannabis in Year 8, and that your use of that drug escalated over time to you typically purchasing 1 gram when your finances allowed. You told Dr Walton you last consumed cannabis on the evening preceding you consultation, although you instructed Dr Walton that you were trying to cut down.
54 You told Dr Walton that you were introduced to methylamphetamine by the age of 20 years. You described using relatively modest amounts, “one point” at a time when you could afford it. Tellingly, Dr Walton recorded:
“Apart from being advised about the likely adverse effects of drugs for him when he was a patient at Broadmeadows, Mr El Lababidi seems not to have been involved in any drug rehabilitation.”
Despite this, since your admission in 2014, you continued to abuse cannabis and methylamphetamine. Dr Walton did not accept at face value that you had not been taking methamphetamine recently although he thought it possible that cannabis may have adversely affected you.
55 Whilst in prison, you undertook a one-day practical workshop to help identify strengths, priorities, goals and supports. (See Exhibit 4)
56 Tendered as Exhibit 5 were the results of urine analysis conducted on 6, 13, 20 and 27 January, 10 February, 2 and 9 June this year, all of which proved negative.
57 Mr Gurvich relied on the following to support his principal submission:
(i)youth;
(ii)you have a very limited criminal record;
(iii)you have no subsequent convictions and there are no matters pending;
(iv)you did not breach the Community Correction Order, nor the conditions of your bail which you were placed on pending this appeal;
(v)you pleaded guilty at an early stage;
(vi)there is evidence of remorse;
(vii)you have a complex and tragic developmental history;
(viii)you present with low-average intellectual functioning;
(ix)you have family support;
(x)from 30 November 2017 to 19 March 2018, you engaged appropriately with the Community Correction Order imposed on you by the Magistrates’ Court, you undertook community work, attended appointments and abstained from illicit drug use and attended judicial monitoring;
(xi)you obtained a job that you like;
(xii)the 44 days that you spent in prison was the first time that you had been in prison and was a sentence infected by appellable error; and
(xiii)you returned to work after your release and have done well in the community.
58 In support of the last contention, tendered as Exhibit 6 was a reference from Victoria Cold Storage Pty Ltd, your employer, which documents that you commenced employment with them in early December 2017, that you have demonstrated full commitment to your work duties, that you are very pleasant and very hard-working, and that your employer is hopeful of employing you on a full-time basis.
59 In addition, tendered as Exhibit 7 was a covering letter from your general practitioner enclosing a mental health treatment plan that was set in place recently, your first appointment took place on 29 June. Mr Gurvich informed me that because of the machinations of Medicare, this was the earliest time at which such a plan could be arranged for you.
60 As a result of the submissions made by Mr Gurvich on your behalf, I had you assessed for suitability for a Community Correction Order.
61 The opinion of the assessor was that you were not suitable for a Community Correction Order.
62 Accordingly, I brought the matter on for further submissions and this took place on 4 July.
63 Mr Gurvich submitted that the conversation as recounted by the assessor was troubling as it did demonstrate a lack of insight into your offending and limited remorse. However, he submitted that this could be properly addressed by conditions imposed as part of a Community Correction Order. Further in respect to your expressed reticence to undertake further rehabilitation for your long standing drug abuse Mr Gurvich emphasised you abstinence from illicit drugs (See Exhibit 5) and that some people take longer than others to realise that they need help in respect to their addiction as well as your endeavours to address your mental health issues by attempting to obtain a mental health treatment plan in March this year (See Exhibit 9) and that you had attended your first session under the plan brought into existence in June this year (See Exhibit 7). A perusal of Exhibit 7 would demonstrate that the plan was for depression and “mental disorder not otherwise specified”, further your thinking, perception, cognition, insight and judgement were assessed as normal.
64 The Crown submitted that your statements to the assessor demonstrated that you lack of insight and absence of remorse was consistent with the contents of your record of interview and accordingly this state of affairs has continued for a period well in excess of a year and that it impacts adversely upon your prospects for rehabilitation. Further, it was submitted that your reticence to undertake further treatment for your drug abuse demonstrated a lack of desire to address the root cause of your offending and this may impact on an assessment of your future risk of reoffending.
65 To put the submissions to which I have referred in context it is necessary to set out in detail the contents of the Assessment. Ultimately, the assessor and author of the report dated 27 June opined:
“Given Mr El Lababidi’s lack of insight into his offending behaviour, and his minimisation and externalisation of blame for the offending behaviour, he is assessed as unsuitable for CCO at this time.”
66 This opinion comes about as a result of you informing the assessor that your offending behaviour was “an accident”. You told the assessor that you had changed your life since the time of your offending, and you feel remorse for what happened. However, you insisted that the injuries suffered by Senior Constable Phillips were accidental. When it was put to you that you struck Senior Constable Phillips three times with a clenched fist, you denied this, saying that you were trying to push her away and accidentally struck her once. You even demonstrated how this occurred by grabbing your own collar and simulating a pushing action whereby your closed fist lightly contacted your lower jaw. You claimed that you resisted police as you were trying to explain that the property you were alleged to have broken into was your own. The assessor reported that you indicated to him that you had already completed an episode of drug counselling, and that you seemed unimpressed that you may need to complete a further episode of counselling during any Community Correction Order that may be imposed on you.
67 It is plain from the Community Correction Order Assessment Outcome Report that you have little or no insight into your offending conduct and even less remorse. You demonstrate no desire to deal with your longstanding history of drug abuse that was the root cause of your offending.
68 Bearing in mind the findings that have been made that special reason has been established, your moral culpability for your offending is substantially reduced because of your psychotic state at the time of the commission of Charges 3, 6 and 7. General deterrence must be sensibly moderated but it is not eliminated.
69 I must take into account your plea and the time at which it was entered. Generally an accused is entitled to the benefits that flow to him from his plea in that it is some evidence of his remorse and that it has utilitarian benefit. In your case, the utilitarian benefit of your plea is undoubted. However, I can find little or no remorse in you and even less insight into your offending and its consequences on Senior Constable Phillips.
70 I must and do take into account your compliance with the orders of the Magistrates’ Court as well as the toll that the appellate process has had on you including the 44 days that you spent in prison. As well I must take into account that any sentence of imprisonment would return you to prison after you have initially received a non-custodial disposition followed by a term of imprisonment and then freedom on bail after a successful appeal.
71 In his written submissions, Mr Gurvich relied upon extracts from two cases in support of his submissions concerning the consequences of the appellate process on you. The first consisted of an extract from Green v R [2001] 244 CLR 462 at [43], the second from R v Kong [2013] 115 SASR 425 at [102]. Each quotation concerns the residual discretion vested in an intermediate Court of Appeal to refuse a Crown appeal and in the case of Kong, the principle of double jeopardy applied in respect to the Crown’s application for permission to appeal against sentence.
72 The hearing before me is a rehearing and the principle of double jeopardy has no application. Having said that, most of the matters referred to are relevant to the exercise of my sentencing discretion.
73 In the decision of the Court of Appeal that remitted this appeal to the County Court, the Court at [71] of the judgment referred to “a general unfairness for the applicant” and in particular:
“Thirdly, the procedural history of this matter has caused some general unfairness for the applicant. The appeal to the County Court may not have been commenced if the Director had been aware of Dr Walton’s report.”
74 I was informed by counsel for the Crown and accept that the Acting Director was seized of Dr Walton’s report and was well aware of its contents when he signed the notice of appeal.
75 Mr El-Lababidi, you are a 26 years of age and were 25 at the time of your offending. You have a relevant appearance before the Magistrates’ Court for assault. You are without remorse or insight into your offending. Thereafter the matters relied upon being, the consequences on you of the appellate process, that you are in employment, have a loving and supportive family, and are presently on a mental health treatment plan, the first appointment pursuant to that plan having taken place on 29 June are not sufficient to move me not to impose a custodial sentence on you.
76 You have no intellectual disability and are well able to understand the gravity of your actions and their consequences even though you committed Charges 3, 6 and 7 whilst in a psychotic state. For reasons best known to you, you refuse to acknowledge the facts surrounding your offending and their consequences.
77 Acknowledgement of the fact of your wrongdoing in your case I regard as essential to the issue of rehabilitation. Accordingly, I regard your prospects of rehabilitation as poor and I am fortified in this opinion by your expressed attitude to further treatment and rehabilitation programs in respect to your longstanding abuse of cannabis and methylamphetamine should it be required pursuant to a Community Correction Order.
78 By this sentence, I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must look to your rehabilitation.
79 Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows:
On Charge 3 – to 8 months’ imprisonment.
On Charge 6 – you are convicted and fined $350.00
On Charge 7 – you are convicted and fined $350.00
On Charge 9 – you are convicted and fined $ 250.00
80 This results in a total effective sentence of 8 months’ imprisonment and a total of $950.00 in fines.
81 I declare that you have spent 44 days by way of pre‑sentence detention.
82 I grant a stay of 3 months for the payment of the fines.
83 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to a total effective sentence of 18 months’ imprisonment with a non-parole period of 10 months.
3
3
0