Director of Public Prosecutions v El-Sayah, Omar and Taleb

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

Revised
Not Restricted
Suitable for Publication

Case No. CR-17-01536

CR-17-01533
CR-17-01537

DIRECTOR OF PUBLIC PROSECUTIONS

IBRAHIM EL-SAYAH, GHAZI OMAR and BADR TALEB

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	13 SEPTEMBER 2018
DATE OF SENTENCE:	21 September 2018
CASE MAY BE CITED AS:	DPP v El-Sayah, Omar and Taleb
MEDIUM NEUTRAL CITATION:	[2018] VCC 1565

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW

Catchwords: Sentence – Pleas of guilty – Burglary – Commercial burglary – Youthful offenders – Steps towards rehabilitation – Community Corrections Order – Combination sentence.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Livitsanos	OPP
For the Defendant El-Sayahs	Mr S. Parker	Valos Black & Associates
For the Defendant Omar	Mr A.V. Chernok	Theo Magazis & Associates
For the Defendant Taleb	Mr N. Hanos	Emma Turnbull Lawyers

HIS HONOUR

Badr Taleb, Ibrahim El-Sayah and Ghazi Omar you have pleaded guilty to a charge of burglary and a charge of theft committed on 1 July 2016 at Airport West. Ibrahim El-Sayah and Ghazi Omar, you have also pleaded guilty to charges of burglary and theft committed at Rosebud on 6 July 2016.The maximum penalty for each offence is 10 years’ imprisonment.
You have each admitted the matters shown on your criminal records.
Tendered as Exhibit A and read aloud in Court was the summary of prosecution opening on your pleas. The facts set out in Exhibit A are accepted by each of you through your counsel and form part of these reasons for sentence.
In summary, the facts are as follows:

Burglary and Theft 1 July 2016 at Airport West

On 1 July 2016 in company with co-accused Bilal Ersoy and Aladin El-Sayed you each attended at Westfield shopping centre Airport West at around 3:30 AM. You arrived at the shopping centre in a stolen BMW SUV. You pulled up outside the main entrance of the Plaza. Four of your group got out of the vehicle and a Makita brand angle grinder was removed by one of you. All of you were wearing dark clothing and head coverings. A jemmy bar was used to force open the glass sliding doors to enter the shopping plaza.
A Tobacco Station General store was located approximately 700 metres from the front entrance. The angle grinder was used on the lock on the metal door of the store to gain entry. Inside the store a jemmy bar was used to force open the locked cigarette cabinets located behind the register.
You had with you a doona cover. The cigarettes and tobacco products in the cabinets were emptied into the doona cover and carried from the store to the BMW.
The BMW and whoever was driving the BMW remained outside the store driving around the car park whilst four of your group were inside.
Two of your group returned to the Tobacco Station General store a second time with a shopping trolley which was filled up with more cigarette packets. Eventually you all returned to the vehicle and made your escape.
Police were alerted and approached the Plaza. You were observed to be leaving in the BMW at high speed and evaded police.
The prosecution have not alleged any value in relation to this offending. It is apparent however from telephone intercepts following the burglary, which disclose the involvement of each of you, that you each stood to gain in the vicinity of $3,000 as a result of your crimes.

Burglary and Theft 6 July at Rosebud

Turning to the burglary and theft on 6 July at Rosebud. On 5 July 2016 at about 4 PM you Mr El-Sayah and you Mr Omar attended the Rosebud Plaza shopping centre at Rosebud. You were there to conduct a reconnaissance of the layout of the Plaza and the location of the telephone shops and tobacconist store with a view to committing burglaries on those shops later that night. Your attendance was recorded on CCTV footage which shows you entering a side entry at 3:59 PM, walking through to the centre mall past the Telstra store, and returning the same way and exiting through the same entrance at 4:02 PM.
On the same day at about 6 PM your co-accused, Ersoy together with another unknown male, attended a Bunnings store and purchased a Trojan wrecking bar.
Minutes later, Ersoy and the same male attended a Kmart store where they purchased five doona covers. The doona covers were to be used to carry items stolen during the burglary later that night.
Telephone intercepts reveal that you, Omar called Ersoy at about 2:30 PM on the afternoon of 5 July telling him that he needed to organise doonas and gloves. You told Ersoy to get ‘all of us gloves’ and ‘three things as well.’ You said you would leave $40 in the mailbox for him to do so and that you would get everything else that night.
At 3:04 PM you, Mr Omar called Ersoy and asked him to organise a ‘pole thing.’ You told Ersoy that you are on your way to Rosebud to look at a few things. You told Ersoy that you are ‘going for “big fish” tonight’. During that afternoon you, Mr El Sayah also made a call to an associate telling him that you ‘needed him tonight for something hectic.’
At around 5:24 PM Ersoy called you, Mr Omar and asked you to Snapchat him about what you wanted. You said you wanted five ‘D’s’ the ‘C’ and the ‘G’. These references were code for obtaining five doona covers, a crowbar bar and gloves. Ersoy told you that he already had the gloves. At 6:33 PM you, Mr Omar called Ersoy and told him that you had everything and that you were across from Kmart at the Hungry Jacks. Early the following morning, at approximately 3:30 AM on 6 July 2016 you, Mr El-Sayah and you, Mr Omar together with Ersoy and two unknown males attended at the Rosebud Plaza to commit burglary and thefts.
You arrived in a silver BMW SUV wagon. The driver remained in the car throughout the incident. A jemmy bar was used to smash the glass front entry of the shopping Plaza near the green emergency exit button, which allowed one of your group to reach through and activate the exit button. At the same time another offender used a Makita demolition saw or grinder to force the lock on the front door. I have viewed the footage of this incident and it reveals the extent of the effort and damage caused at the point of entry, in particular the use of a sizeable demolition saw to cut the lock sending sparks flying.
Once inside the Plaza the first store to be breached was the Free Choice Tobacconist. The security roller door to the store was kicked in by a number of you and cigarettes and tobacco products from the cabinets were removed and placed inside a doona cover. Your group then went to the Telstra store, again kicking in the roller security door. Once inside the store your group was unable to gain access to the storeroom and no property was stolen.
Your group then went to the Optus store and again kicked in and pushed in the security door causing it to dislodge, allowing entry. Once inside the store no property was stolen as all the phones and other equipment were dummy phones used only for display purposes. Each of you were wearing dark clothing and balaclavas. Your group was in the shopping centre for 15 to 20 minutes before emerging, dragging a big black and white bag full of items to the BMW and its driver who was waiting to collect you. You departed the scene at speed.
You, Mr El-Sayah were arrested on 7 October 2016 at your home at Broadmeadows, and made a no comment record of interview.
You, Mr Taleb were arrested on 11 October 2016 at Broadmeadows police station, also making a ‘no comment’ record of interview. You, Mr Omar were arrested on 3 November 2016.

Pre-sentence detention

Mr Taleb, you were bailed immediately upon your arrest. Mr El-Sayah, you were bailed on 9 November 2016, having spent 34 days in custody in relation to this matter. Mr Omar, you were arrested and remanded on 3 November 2016. You were granted bail on 8 June 2017, some 218 days since your arrest, I am told. On 4 May 2017 you were sentenced at the Melbourne Magistrates' Court to a period of 120 days imprisonment for charges of burglary and theft. Pre-sentence detention of 117 days was declared in relation to that sentence. Accordingly you, Mr Omar, have spent 98 days pre-sentence detention in relation to this matter.
These offences fall into a category of offending which is sometimes referred to as commercial burglary. The offences required considerable planning. Tools were required to effect the break-in. You wore disguises to avoid identification via CCTV surveillance. You targeted stores where you knew you would reap considerable financial gain. Unlike many examples of offending that falls into this category the value of the thefts or the loss to the businesses has not been quantified.

Youth

Each of you can call upon your youth in mitigation: your youth at the time of the offending, which is now more than 2 years ago – as well as your relative youth at the time of sentence.
Your youth has relevance as a sentencing consideration in this case in a number of ways. Firstly, young or relatively youthful offenders such as you were, are often immature and are prone to ill-considered decisions. Young or youthful offenders may lack the degree of insight, judgment and self-control that is possessed by an adult. They may not appreciate the nature, seriousness and consequences of their criminal conduct to the same degree.
Importantly, courts recognize the potential for youthful offenders to be redeemed and rehabilitated. Rehabilitation of youthful offenders is in the community’s interest.
It is also recognized that incarceration of youthful offenders will more likely impair than improve the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench criminal behaviour and exacerbate anti-social tendencies.
Each of your counsel placed emphasis on rehabilitation. The rehabilitation you have exhibited in the period of delay, which varies between the three of you, and your future prospects. Each of your counsel made strong and impassioned pleas against the prospect of each of you being sentenced to a period of imprisonment yet to be served due to the potential disruption or derailment to your rehabilitation and the exposure of each of you to negative and corrupting influences.
I accept the importance of this consideration and give it considerable weight. None of you are now ‘young offenders’ within the meaning of the Sentencing Act 1991, but you are relatively youthful.
At the time of the commission of the offences you were young men.
You, Mr Taleb were the eldest of the group being 22 years of age, you are now 24.
You, Mr Ibrahim El Sayah were 20 and 21 years of age at the time of offending, you are now 23.
Mr Omar, you were 20 years of age, you are now 22.
Each of your counsel impressed upon me the need to give the full mitigatory effect available to each of you due to your youth. In particular each counsel, quite properly, emphasized the reluctance of the criminal justice system to place youthful offenders in a custodial setting when rehabilitation had been demonstrated over a significant period of time. I accept this proposition. The sentences imposed reflect the considerable weight I have given to the mitigatory effect of youth combined with your steps toward rehabilitation during the period of delay.

Personal circumstances

Ibrahim El-Sayah

I will now tend to each of your personal circumstances. First, Mr Ibrahim El-Sayah., you were 20 at the time of the first burglary and theft and you had turned 21 by the time of the second burglary and theft.
You come from a good family background. No one else in your family has been in trouble with the police. You live at home. Your father has been in very poor health in recent years suffering heart attacks, as well as having surgery for a brain tumour. He suffered a stroke in August 2016.
You have an older sister who suffers from cerebral palsy. Due to your father’s ailing health he is unable to return to his former employment as a taxi driver. I was told that this led to more responsibility falling to you in 2016 as your mother is unable to drive and it would fall to you to transport your father and sister to medical appointments. You were also needed to take your mother to do grocery shopping and run other errands. You felt this was a significant burden around the time of your offending. You have described to psychologist Carla Ferrari that you felt helpless leading up to the offending, you felt overwhelmed and abandoned by your older siblings as they had their own families to attend to and were not able to assist you much at home.
Ms Ferrari notes in her report dated 8 September 2018, that was Exhibit 16 on your plea, that your older siblings have since realised that they were not being as supportive as they needed to be and have rallied around you to alleviate some of the family stress. I received a letter from your sister Doha which confirmed these matters. Doha is a senior analyst at the National Australia Bank and her letter in support of you is relied upon to show the family support you have, as well as the maturity and progress you have made in the period of delay between the commission of the offences and the date of sentence.
You attended Camp Meadows Primary School then went on to Hume Secondary College for a year before attending Box Forest Secondary College, now called Glenroy College, for Years 8 to 11. You returned to Hume Secondary College for Year 12 however you left during the year to commence an electrical apprenticeship.
You did not complete the electrical apprenticeship. Apparently your employer failed to provide the appropriate support and supervision for a number of apprentices, including you. You took five months off and it is within this period that your offending occurred.
You reported to Ms Ferrari that in this period of time, you began associating with a group of friends who were engaging in antisocial activity. They were friends from school and the lack of routine, structure and purpose led you into engaging in these offences.
You stated to Ms Ferrari that there was significant familial stress leading up to your offending and you became caught up in your friends plans of committing the burglary on the tobacconist. You told Ms Ferrari that these type of activities were occurring frequently in your area at the time and were regarded as an easy way to make a quick profit. You told Ms Ferrari that your involvement was quite impulsive and was planned by one of your co-offenders. You told Ms Ferrari that you did not consider the consequences as you were experiencing stress at home and you thought the proceeds would tide you over financially until you secured another apprenticeship.
You were on a Community Corrections Order at the time of your offending in July 2016. You have two previous court appearances. On 2 February 2016 at Broadmeadows Magistrates’ Court you were convicted and sentenced to a nine-month Community Corrections Order for assaulting an emergency worker, damaging property, retaining stolen goods and handling stolen goods. That Community Corrections Order relating to offences of dishonesty was still in place as at July 2016.
You were before the court again in June 2016 on driving matters.
I was told by your counsel on the plea that once you were released on bail on the matters before this Court (which was November 2016) you completed the 130 hours of community work that were owing on the Corrections Order from February 2016. Clearly this offending however breaches that order.
Upon your release on bail in these matters, having spent 34 days in custody you recommenced your apprenticeship as an electrician with Dean Pana at DMP services and I received a letter from Mr Pana on your plea which was tendered.
The psychological assessment of Carla Ferrari provides significant detail as to your background, your motivation for offending and psychological issues relevant to sentence.
Ms Ferrari states that you recognise the link between your offending, substance use (which I am told was marijuana) and your emotional state and you are willing to engage in further treatment to develop more insight into your behaviour so that you can make more constructive and adaptive decisions in the future.
You expressed to Ms Ferrari that you have no desire to return to substance use nor offending as you realise the extent to which it has caused you problems as well as your family. Ms Ferrari diagnosed depression and anxiety and stated at paragraph 77 of the report:
It is likely that his pre-existing symptoms are currently exacerbated as he faces uncertainty regarding his future and it is possible that his mental state may further deteriorate depending on the outcome of the sentencing, which would impact his personal social and occupational functioning.
Ms Ferrari assessed you as being at low risk of reoffending. She based this assessment on the following factors:
i) a limited forensic history, which only commenced a few months prior to these offences;
ii) the history coinciding with you quitting your apprenticeship and heightened psychosocial stressors at home;
iii) currently you have ceased association with your co-offenders since the offences;
iv) you remain abstinent from the factors which contributed to your offending;
v) You have consistently demonstrated stable employment since the time of your release on bail;
vi) You have abided by all the conditions of bail and have secure accommodation within the family home;
vii) You also have a supportive partner and your family have rallied around you in support , with your older siblings in particular having greater awareness that they failed to adequately support you in the past, perhaps underestimating how difficult and onerous the situation at home was.

52.Ms Ferrari reports that your risk of future reoffending is mitigated by your awareness that your behaviour is unacceptable and by what she found to be the genuine remorse that you have shown in relation to your actions.

Ms Ferrari also opined that a custodial sentence could contribute to a serious decline in your mental state given your acute depressive symptoms and history of anxiety. Your young age also makes you vulnerable to exploitation by other prisoners in her view. Ms Ferrari highlighted the benefits of your remaining in the community in particular, you can continue your apprenticeship and support your family financially and practically. She noted that you are engaging with community supports and are willing to engage in further psychological treatment to address depression and anxiety and post-traumatic stress disorder symptoms, should they not improve once the court matters are finalised.
I also received on your behalf a letter from Sam Ercan who spoke of you as being an active member of the Islamic community and a young family man of outstanding character. Your counsel, Mr Thompson also told me of your involvement with the community programs you have engaged in under the umbrella of the Somali Australian Council of Victoria. I received a letter setting out your participation dated 28 May 2018 and the author of that letter, Mr Farah, was present in court during your plea hearing. I am told that Mr Farah can provide tailored intervention supports for you. He is a senior social worker, and in addition to weekly counselling sessions he can assist you to access a range of services.
Ultimately your counsel urged upon me that due to your youth, your progress on bail, your remorse, your family support, the matters contained in the report of Ms Ferrari, and your engagement with Mr Farah, it would be appropriate to place you on a lengthy community corrections order rather than sentence you to imprisonment beyond which you have already served.
Mr Thompson also told me of the vehicle collision you were involved in in September last year. Charges are pending in relation to that matter. You suffered some serious injuries in that collision. You are still undergoing treatment for your injuries, including physiotherapy and I refer to the letter of Dr Malek Kallab dated 20 July this year.

You were assessed as suitable for a Community Corrections Order. You have been assessed as medium risk of reoffending.

Badr Taleb

Mr Taleb, as I have stated you are the eldest of all co-accused. You were 22 at the time of the offending and are now 24 years of age. Your offending is confined to one evening.
On your behalf, your Counsel, Mr Sala placed emphasis on your limited criminal record and on the fact that you have not reoffended since the day of your offending. That period is now in excess of two years.
You have shown an aptitude for study and for work. You completed year 12 at Glenroy College. You commenced an advanced diploma in legal practice at Victoria University in 2011 but did not complete that course. You then commenced a number of apprenticeships in different fields.
Since this offending and in the past two years you have settled in to a roof plumbing apprenticeship and I received correspondence from Melbourne Roofing and Maintenance which demonstrates your good work history over the period since the offence. This reference also demonstrates that in the eyes of your employer your offences are out of character.
Your criminal record discloses a charge of theft for which you received a without conviction bond in November 2014. This previous finding of guilt is of a different order of significance in my view, compared to the recent prior history of Mr El-Sayah and Mr Omar, both of whom were either on community corrections orders at the time of their offending or near to, in the case of Mr Omar. It is worthy of note at this point that their offending, that is Mr Omar and El-Sayah, is significantly greater than yours Mr Taleb.
Your Counsel impressed upon me the fact of your rehabilitation over the past two years and in particular the fact that you have reunited with your family unit and that you have obtained meaningful and full-time employment.
At the time of the offending I was told that you were out of the family unit, having moved out of home in 2014 at the age of 19 due to conflict with your father. I was told that this conflict related to you ceasing tertiary education. Your counsel, Mr Sala urged me to impose a sanction that fosters rehabilitation in your case, given your age and given you have approximately two years to complete on your roof plumbing apprenticeship. I also received a letter (Exhibit 2b) which I understand is from your fiancé. I accept that you are remorseful for being involved in the night of crime, on 1 July 2016.
You have been assessed as suitable for a Community Corrections Order. You have been assessed as being a medium risk of reoffending in the future.

Ghazi Omar

Mr Omar, like Mr El Sayah, your offending spans the events of 1 July 2016 and the events of the early hours of 6 July 2016. The 6 July offence involves evidence of your preparation and planning on 5 July 2016.
You are the second eldest of seven siblings having three brothers and three sisters. Your mother was born in Lebanon and has usually worked at home duties. Your father was born in Australia to parents who were of Lebanese background. Your father had worked as a plumber but he is now in receipt of a disability support pension as a consequence of back and elbow injuries.
Your parents separated, I was told, when you were 17 and you describe your father as having always been aggressive. You observed violence in the home. You were also on the receiving end of violence at your father’s hands. You now see your father every few months. You have a good relationship with your mother.
You attended Westbourne Primary School and then Glenroy Secondary College. completing year nine. In a report dated 30 August 2018 from Ian MacKinnon psychologist you gave a frank assessment of your school experience. You told Mr MacKinnon that you would get depressed at school as you were not smart enough to finish your work. You told Mr Mackinnon that you were too embarrassed to ask your teacher for help and that you were quiet. You did not receive help with homework at home. At school you could not concentrate and were preoccupied with the turmoil at home, which as I understand it, largely centred around your father's difficulties.
You told Mr MacKinnon that you left school at age 15 and did a plumbing apprenticeship for about four years which took you up to the point of getting involved in the burglaries, the subject of this indictment. You told Mr MacKinnon that you loved working, you were good at your job and you did really well. You told him you are still with your employer and that he would pick you up from home and take you to work. You said to Mr Mackinnon that your employer has been great and that you look up to him.
I received a letter (Exhibit 3c) from Mr Osman Said who is the owner and manager of Ozwide plumbing. He states that his business employs approximately eight workers including subcontractors. You began your employment with him in June 2017 and he states that you are a highly valued employee. Your employer has a very good understanding of the problems and challenges facing you. Your employer is well aware of your current situation, nevertheless he holds you in high regard. He says you take great pride in your work and pride yourself on compliance. He considers you have shown considerable endeavour and have considerable promise.
You told Mr MacKinnon that you commenced smoking cannabis when you were 17 years old. By the age of 18 you were using methamphetamine and might stay up for up to 18 days at a time. You said you were using up to 3 grams of methamphetamine a day, at times.
You also told Mr MacKinnon that when you were remanded for these matters in 2016 at Malmsbury and Port Phillip Prison you experienced depression. Clearly, custody had a major impact upon you.
In Mr MacKinnon’s view you have undergone significant personal growth since July 2016. You have insight into your offending and its impact. You have shown genuine remorse. Mr MacKinnon noted that you have a good record of achievement in your employment as a plumbing apprentice which reflects your strong aptitude for physical and task oriented activities. I accept that and agree.
You have ongoing depression and anxiety issues which need to be managed. It is important that these issues are managed in order to reduce the risk of you falling into substance use again.
In Mr MacKinnon’s view you would experience a worsening of your chronic anxiety and depression if you were to receive a significant term of imprisonment. You have spent a longer period of time in custody than Mr El-Sayah. In determining the appropriate sentence to be imposed upon you, I take into account that you spent the months between 3 November 2016 and your release on bail in June last year, in custody (which is 218 days). Of that period you served a sentence of four months for charges of burglary and theft. I have not been told the date of the commission of those matters, nor the exact nature of those charges. I have given effect to the principle of totality as best I am able to, in those circumstances.
You have 98 days available to you as pre-sentence detention.
Your counsel, Mr Chernok made clear and concise submissions placing emphasis upon your youth and rehabilitation. With reference to Boulton and Ors, Azzopardi v The Queen [2011] VSCA 372 and other authority, Mr Chernok emphasised the punitive aspects of a Community Corrections Order and submitted that given the matters of mitigation relied upon[1] it was not necessary in your case to impose more than the
[1]See outline of submissions Exhibit 3 a.
pre-sentence detention available to you.
You have been assessed as suitable for a Community Corrections Order. Corrections assessed you as being high risk of reoffending.

Plea Guilty

I turn now to consider your pleas of guilty. The pleas of guilty have not been entered early. Nor should they be considered late pleas. Each of you were facing a vastly different indictment to the ones you have pleaded guilty to. There are legitimate forensic decisions at play which militate against the entry of pleas to a multi count indictment before it is resolved satisfactorily.
I accept that there is a significant utilitarian benefit in your pleas and I also accept your pleas are indicative of remorse and contrition.

Objective Gravity of Offending

I want to turn now to the objective gravity of the offending. These offences as I have said, fall into the category of commercial burglaries. Primarily the motivation was financial gain. I am quite sure that peer approval or pressure, the impulsivity of youth and perhaps a level of excitement were also contributing factors.
The offending is extremely serious. I viewed the CCTV footage (Exhibits B and C) which were tendered by the prosecution and provide a vivid picture of your offending: the degree of planning, the break-in, the ‘heist’ and the getaway.
On the face of it, this is organised criminal activity at a disturbing level for young men such as yourselves: working men, skilled in trades.
The objective gravity of the offending, as expressed in the prosecution opening and as depicted on the CCTV footage, calls for punishment. It calls for sentences that will satisfy the need for general deterrence. It calls for sentences that will express appropriate denunciation. Despite the progress that each of you have made whilst on strict bail I am of the view that specific deterrence remains a consideration of some prominence, particularly with regard to you, Mr El-Sayah and you, Mr Omar.
Each of you has terrific opportunities in the future to complete your trade qualifications and lead productive and satisfying lives in the community amidst your family and friends.
Each of you has demonstrated a renewed willingness and ability to do just that in the period since the commission of the offences to date, although it must be noted that Mr El-Sayah was released in November 2016, and Mr Omar of course, spent 218 days in custody up until June last year.
In the case of young men such as yourselves I am extremely reluctant to disrupt that progress if at all possible. It was urged on me by your Counsel in their very able and thorough pleas that considerations of youth and rehabilitation should have primacy in my consideration.
Competing with the principles of youth and your demonstrated rehabilitation during the two-year period of delay in your case Mr Taleb, and approaching two years in your case Mr El-Sayah, are general deterrence, appropriate denunciation and just punishment. I have had to consider, bearing in mind the objective gravity of the offences, what sentence is adequate to satisfy each of those factors. Implicit in that exercise is the application of the principle of parsimony.

Parity

I have considered issues of parity as between the three of you. In terms of your roles in the burglary and theft at Airport West on 1 July 2016 there is no basis to distinguish between the three of you.
As at 1 July 2016 you, Mr Omar and you, Mr El Sayah were still within the operational period of Community Corrections Orders imposed on you in July 2015 and February 2016 respectively. You Mr Omar appeared at the Broadmeadows Magistrates' Court on 30 June 2016 the day before the offending for contravening a Community Corrections Order, which was found proven ( perhaps it was cancelled that day also ). Whether it was strictly still in operation the following day, does not much matter for these purposes. Prior to that date Mr Omar, you appeared at the Broadmeadows Magistrates' Court on 29 July 2015 and received a 12 month Community Corrections Order for offences including theft from a shop.
On 17 April 2015 you received a three month period of imprisonment that was wholly suspended for 12 months for driving whilst suspended. You were dealt with for retention of stolen goods on that day also.
You Mr El-Sayah received a Community Corrections Order of nine months duration on the 2nd of February 2016 for offences that I have already set out but which included offences of dishonesty. You were also before the Court on 29 June 2016 at Broadmeadows and received a fine in relation to driving matters.
The clearest point of distinction between you Mr Taleb and your co-accused
Mr El-Sayah and Mr Omar, is that your offending Mr Taleb is confined to one burglary and associated theft on the evening of 1 July 2016.
I consider that the offending engaged in by you Mr El Sayah and you Mr Omar on 6 July is more serious in some ways than the Airport West burglary. After forcing entry using the angle grinder as I have already described, you and your co-offenders then proceeded to force entry into three separate businesses by violently kicking in security screen doors.
Another difference between the three of you is the length of time you have each demonstrated steps toward rehabilitation whilst on bail. In your case Mr El-Sayah, you are also dealing with some injuries sustained in the motor vehicle collision last September.
I have determined that in all of your circumstances Mr Taleb, for your involvement in the events of 1 July 2016, given your demonstrated rehabilitation over a period in excess of two years, and given your limited history a lengthy Community Corrections Order can satisfy all of the sentencing requirements in the case.
In your cases Mr El Sayah and Mr Omar, after careful consideration I am unable to arrive at a sentence that reflects factors of general deterrence, denunciation and just punishment to an appropriate degree without imposing a further period of confinement.
I accept in both your cases, that is Mr El-Sayah and Mr Omar, that you have reasonable prospects of rehabilitation, and that you have each demonstrated steps toward rehabilitation whilst on bail. I am mindful of the prospect of your rehabilitation being derailed rather than simply temporarily disrupted. I am also mindful of the renewed exposure of each of you to the negative influences of a custodial setting given your relative youth. Taking these matters into account I have sought to temper the sentence and impose what may be considered moderate or even merciful sentences, whilst still giving effect to the principles of general deterrence, denunciation and just punishment.

Sentence: Taleb

I now turn to sentence. Stand up please, Mr Taleb. Badr Taleb, on the charges of burglary and theft on indictment No. C1610904C you are convicted and sentenced to a Community Corrections Order for a period of 2 years and 6 months from today.
I direct that you perform 300 hours of unpaid community work over the duration of the order. I also impose a drug treatment and rehabilitation condition, and supervision.
Pursuant to s 6AAA I declare that but for your plea of guilty I would have sentenced you to a total effective sentence of 12 months' imprisonment with a non-parole period of 6 months.
You should understand Mr Taleb, that I consider this a merciful and moderate sentence for serious offending and it is due to a large extent to your steps toward rehabilitation in excess of two years. You have come very close to a period of imprisonment to serve. You should bear that in mind and consider this an opportunity. Should you breach the order you will be back before me for resentencing and I will certainly be bearing what I have said, in mind. Do you consent to the order?
ACCUSED: Yes.
HIS HONOUR: In a moment, you will be asked to sign it. In your case, I also make an order pursuant to s.464ZF of the Crimes Act in relation to the taking of a forensic sample by way of scraping from the mouth. Saliva sample. You can sit down for the moment, Mr Taleb.

Sentence: El Sayah

Mr Ibrahim El-Sayah, please stand. Ibrahim El-Sayah, I have decided to impose an aggregate sentence of imprisonment in combination with a Community Corrections Order in respect of the two charges of burglary and the two charges of theft the subject of indictment C1610904B.1. I do so because the charges form a series of offences of the same character. The aggregate term will be 5 months' imprisonment.
On the charges of burglary and theft on indictment C161090B.1 you are sentenced to an aggregate sentence of 5 months' imprisonment in combination with a CCO.
I declare that you have already served 34 days of pre-sentence detention and this period is to be reckoned as time already served under the sentence I have imposed.
The Community Corrections Order is of 2 years duration. You will be required to perform 250 hours of unpaid community work. You are to undergo treatment and rehabilitation programs to reduce your offending behaviour. You are also to be assessed for mental health treatment and rehabilitation. Up to 50 hours of treatment and rehabilitation programs can go towards satisfying the unpaid community work condition.
You should also bear in mind that for your offending this in my view, is a merciful sentence. You will have the opportunity upon your release of resuming your progress and re-engaging with the supports that you have had available to you. It is largely because of the supports and the progress you have made, over almost two years, that I arrived at that figure of 5 months
If you breach the order you will have wasted that opportunity.
Pursuant to s 6AAA I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of 20 months' imprisonment with a non-parole period of 14 months. You can sit down Mr El-Sayah.
Ghazi Omar
Ghazi Omar, please stand. Mr Omar, I have also decided in your case to impose an aggregate sentence of imprisonment in combination with a Community Corrections Order in respect of the two charges of burglary and the two charges of theft the subject of indictment C161090A. I do so because the charges form a series of offences of the same character. The aggregate term in your case however, will be 6 months' imprisonment, due to a difference in the personal circumstances of
Mr El-Sayah over the course of the period of delay, on bail and particularly the engagement in the community as I was advised, in relation to the matters contained in the report of Ms Ferrari, in his case, and the references from the Somali Association.
On the charges of burglary and theft on indictment C161090A you are sentenced to an aggregate sentence of 6 months' imprisonment in combination with a community corrections order.
I declare that you have already served 98 days' of pre-sentence detention and this period is to be reckoned as time already served under the sentence I have imposed.
The Community Corrections Order is of 2 years' duration. You will be required to perform 250 hours of unpaid community work. You are to undergo assessment and treatment for drug abuse or dependency. You are to undergo treatment and rehabilitation programs to reduce your offending behaviour. You are also to be assessed for mental health treatment and rehabilitation. Up to 50 hours of treatment and rehabilitation programs can go towards satisfying the unpaid community work condition.
You should also bear in mind that for your offending I consider this to be a merciful sentence. You will have the opportunity upon your release of resuming your progress towards rehabilitation with the support of a community corrections order. They are important orders. They contain onerous conditions, punitive conditions, they are not easy to do. They are designed not only to punish you, but to support your rehabilitation so take the opportunity. I will have little option open to me were you or any of your co-accused to breach the order. Do you consent to the order? Mr El-Sayah, do you consent to the order?
ACCUSED: Yes, Your Honour.
HIS HONOUR: All right. You can both be seated.
I also make the disposal order that was sought.
MR CHERNOK: Your Honour, the 6AAA declaration for Mr Omar.
HIS HONOUR: Yes, thank you. Pursuant to s 6AAA I declare that but for your pleas of guilty Mr Omar, I would have sentenced you to a total effective sentence of 20 months' imprisonment with a non-parole period of 14 months.
MR CHERNOK: May it please the court.

HIS HONOUR: Now I made a PSD declaration in respect of Mr El-Sayah, did I?
MR PARKER: Yes, Your Honour. Yes.
HIS HONOUR: Yes.
MR PARKER: 34 days.
HIS HONOUR: Yes.

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[2018] VCC 1565

21 September 2018