Director of Public Prosecutions v Hughes-Firgaria

[2019] VCC 1870

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01845;
CR-18-01841;
CR-18-02083;
CR-18-02084.

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISOPHER HUGHES-FIRGARIA
STEPHEN ATHANASIADAS
HUSSEIN DIB
AHMED DIB

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2019, 13 November 2019
DATE OF SENTENCE:	13 November 2019
CASE MAY BE CITED AS:	DPP v Hughes-Firgaria & Ors
MEDIUM NEUTRAL CITATION:	[2019] VCC 1870

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW

Catchwords:   Sentence – false imprisonment (common law) – recklessly causing injury – guilty at trial

Sentence –criminal damage – intentionally damage – intentionally destroy – plea guilty

Legislation Cited:            Crimes Act 1958 (Vic), s18, s197(1),s320, s324; Sentencing Act 1991 (Vic), s5(a), s5(b), s5(6), s6AAA, s18, s37,s44,

Cases Cited: R v Harris [1961] VR 236, 237; SJK & GAS [2002] VSCA 131; Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447; Hasan v The Queen [2010] VSCA 352; 31 VR 28; DPP v Dalgliesh (2017) ALJR 91; Boulton v The Queen [2014] VSCA 342; Hutchinson v The Queen [2015] VSCA 115

Sentence:
Athanasiadas:	Convicted and sentenced to a total effective sentence of 1 year and 11 months imprisonment with a minimum term to be served before being eligible for parole of 14 months imprisonment.
Ahmed Dib:	Convicted and sentenced to a total effective sentence of 1 year and 5 months imprisonment with a minimum term to be served before being eligible for parole of 11 months imprisonment.
Hussein Dib:	Convicted and sentenced to a total effective sentence of 1 year and 3 months imprisonment with a minimum term to be served before being eligible for parole of 8 months imprisonment.
Hughes-Firgaria:	Convicted and sentenced to a Community Corrections Order for a period of 3 Years and ordered to pay a fine of $5000.00

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos (for plea and sentence)	Office of Public Prosecutions
For Accused Hughes-Firgaria	Mr L. Richter (plea) Ms K. Rolfe (sentence)	Dribbin & Brown
For Accused Athanasiadas	Mr Hannebery QC with Mr T. Nathanielsz	Koutsantony & Associates
(for plea and sentence)
For Accused Hussein Dib	Mr J. Miller (for plea and sentence)	Emma Turnbull Lawyers
For Accused Ahmed Dib	Mr J. McQuillan (for plea and sentence)	Stary Norton Halphen

HIS HONOUR: 

1At the plea in this matter, following the jury verdicts, counsel submitted a number of views that I should take in regard to those verdicts.  As a general principle, I am not entitled to form my own view upon the evidence, but am required to take a view consistent with the jury's verdict, see R v Harris [1961] VR 236 in particular at 237.

2In looking at the level of encouragement and assistance involved as to an individual derivative accused, the Court is entitled to look at all of the actions of the prisoners.  

3The issues raised were as follows:

4Firstly, Mr Hannebery raised the issue generally as to the verdicts and submitted that they raised doubts about the whole account of the complainant. That is the form of the verdicts and the manner of them raised doubts about, as Mr Hannebery said, the whole account given by the complainant.  I find that this does not follow, albeit the fundamental importance of Mr Yakub to the Crown case, the criticism made of him by all counsel and indeed my warning/instructions to the Jury as to his importance as to all charges against all defendants.

5I find that the verdicts demonstrate acceptance of Mr Yakub's evidence and a total rejection of the evidence of Mr Athanasiadas and of the evidence tendered by way of record of interview of the statements made by
Mr Hughes-Firgaria.  Indeed, the discernment in the verdicts indicates to me an astute, intelligent jury who have closely listened to directions, sought clarification and decided the individual charges accordingly.

6The second matter, all counsel joined in by way of submission, and submitted to me that I could not be satisfied beyond reasonable doubt firstly that the jury accepted the gun was in the garage at the time of these crimes, and secondly, that any of the prisoners, apart from Ahmed Dib, were aware of such gun.

7As to the gun, I am satisfied beyond reasonable doubt that the jury accepted the gun was there.  Such was the clear evidence of the complainant.  Firstly, he said such was produced by Mr Ahmed Dib in the garage shortly after Mr Yakub had entered the garage, that the gun had first been produced by Mr Ahmed Dib after Mr Yakub was initially punched by Mr Athanasiadas and then kicked and beaten.  That he was then placed on a footrest by Mr Athanasiadas and Mr Hussein Dib and that is when he saw the silver pistol under the cushion on the big couch, next to Mr Ahmed Dib, see photograph 24.

8Also at transcript 84, Mr Yakub said Mr Ahmed Dib was holding the pistol. 
Further evidence insofar as the pistol was given by the complainant in that it was silver, with black sides and about the size of a tissue box.  That was at transcript 90.  He gave further evidence at transcript 91 that near the end of his time in the garage, the gun was sitting on the couch, and in that position when Ahmed Dib told him not to talk to the police or tell anyone about these events.

9I am satisfied beyond reasonable doubt that while the complainant was in the garage, the gun was indeed there and in a position, pursuant to his evidence, that it was appropriate for the jury to infer upon all the evidence and be satisfied beyond reasonable doubt that the gun was there to the knowledge of Mr Athanasiadas, Mr Hussein Dib and Mr Hughes-Firgaria.

10As to Mr Ahmed Dib alone, there is support for the finding against him as to the gun by his admission in call 33, which is set out at p.143-144 in the jury book.

11The third matter, essentially raised by Mr McQuillan, was that Verdicts 4 and 5, being not guilty in regard to Charge four and guilty in regard to Charge five, must be seen as inconsistent, and indicate the non-acceptance of Mr Yakub as a witness.  As is to this submission, it is true that the prosecution case was principally that on all the evidence, the jury should be satisfied that Charge 4 was proved against all accused.  However, the jury specifically asked to be further directed upon state of mind, and the difference between such states of mind, as set out in Charges 4 and 5.  Such direction was given by me on 23 October. I reject the submission that such finding is inconsistent with the evidence.

12Mr Richter, in final address, strongly questioned the extent of the injury. Given such, it seems to me the jury may not have been able to be satisfied as to the mental element necessary to convict in regard to Charge 4.  The jury obviously assessed the complainant's evidence as to the beatings and their consequences.  The jury also specifically asked a further question as to whether the jury, in order to make a determination, must accept the whole of a witness' evidence.  They were further charged by me on that matter on the 22nd of October.  In this regard, it is not to be forgotten that the jury considered their verdicts for over 20 hours. I therefore reject the submission made by Mr McQuillan in that regard.

13In regard to Mr Hughes-Firgaria, there was a submission made by Mr Richter that insofar as him being acquitted of Counts 4 and 5, such would mean that the evidence that he utilised pliers and in other ways “geed up” the others must be rejected. And if so, his role in the false imprisonment must be seen at the very low level.

14In support of that proposition, Mr Richter submitted to the Court the finding of not guilty means that the jury found that assistance and encouragement suggested by the prosecution insofar as the evidence of the complainant was that Mr Hughes-Firgaria was egging the others on, that he got the pliers in some suggestion that he was going to rip out the teeth must not have been accepted by the jury.

15I find that that does not necessarily follow.  Such is not the only evidence as to his role in the false imprisonment.  The alternative may simply have been that the jury was not satisfied due to the injuries and the descriptions given by the complainant insofar as Mr Hughes-Firgaria was concerned and his role, given the variations in that regard as to time and consistency.

16However, in assessing Mr Hughes-Firgaria's role, I accept the submission put by Mr Richter that I cannot take into account in sentencing that he was “egging them on” and that he made the comment as to the pliers.

17As to his role in the false imprisonment, I find given the conviction, the jury must have accepted that he both encouraged and assisted such crime by his role in being present, at least for some of the time, when the car and money was demanded, in going to pick up the car with Mr Ahmed Dib, being present in the garage, on the evidence of the complainant, after the car was obtained and that he threw bones at the complainant when he was on the floor.

18Such assistance and encouragement of the crime of false imprisonment is consistent with the evidence of the complainant in that he said he was kept there until they got what they wanted.  It is also important in regard to considering Hughes-Firgaria's assistance and encouragement that his actions earlier in the day were that he was part of the group which clearly, on all the evidence. I find, and I am satisfied the jury would have accepted beyond reasonable doubt, was looking for Mr Yakub, the complainant. That he had knowledge of such circumstances and that he was found to have, by his presence and the actions that I have indicated, both encouraged and assisted the crime of false imprisonment.

19The final matter which was essentially a submission, by Mr Richter, Mr McQuillan and Mr Miller, concerned the issue as to the time involved in the actual crime of false imprisonment.  Clearly, on the material put by each counsel, such false imprisonment could not have occurred until after 8.11 and more likely, as being put by counsel at approximately 8.30, given the time of call 26, recorded at p.122 of the jury book.

20Insofar as the end time, given the KFC receipt, the car could not have returned to the premises until approximately 10.30pm.  Call 27 at p.123, I am satisfied is the request to obtain such chicken and reference therein to feeding the dog. I am satisfied the reference, at p.133 of the jury book, is a reference in fact to the complainant.

21I accept the submission of Mr Richter that the time involved must have been from 8.30 to 10.30. I am satisfied that the jury accepted the complainant's evidence that Mr Hughes-Firgaria was throwing the bones at him, as the chicken was eaten.  

22Albeit that the objective evidence shows that Mr Hussein Dib left the garage with Mr Southby at approximately 10.00pm, when the surveillance ended, and also that Mr Hughes-Firgaria and Mr Ahmed Dib left the premises to pick up the car and the chicken, I find each of those accused, given the findings of the jury are responsible by way of encouragement and assistance for the totality of the false imprisonment. Albeit that in sentencing them, I must look closely at their individual roles.

23As to Mr Athanasiadas, he pleaded guilty to Charge 1 before the jury, a breach of s.197(1) of intentionally damaging property. The seriousness of such crime is illustrated by the fact that Parliament has prescribed a penalty of a maximum of 10 years' gaol.

24Charge 2 is the charge of false imprisonment, such is a charge prescribed by way of common law. Pursuant to the provisions of s.320 of the Crimes Act 1958 (Vic) it has a 10 year maximum.[1] 

[1]Crimes Act 1958 (Vic) s 320.

25Charge 5, recklessly cause injury is an offence against s.18 and brings with it a maximum period of imprisonment prescribed by Parliament of five years.

26As to those convicted by way of derivative liability, pursuant to s.324 they are liable to the same maximum, as applies to the principal.

27Insofar as the assessment of the particular roles, the Judicial College Sentencing Manual has this to say:

‘The role played by an offender in a joint crime is generally a consideration in the assessment of that offender’s moral culpability. Where an offender is complicit in an offence, but takes a subordinate or non-consequential role, that offender’s moral culpability for the offence will generally be reduced. Where the offender’s role is substantial or leading, then his or her culpability may be commensurately increased.'[2]

[2]Baird & Ors (1985) 32 A Crim R 67 at 70-72 (CCA NSW).

28In SJK & GAS [2002] VSCA 131, Vincent JA [45]-[46], addressed the view that culpability of an aider and abettor would presumptively be lower than that of a principal offender, he said at paragraph 47:

‘Further the notion that, as a general proposition, an aider and abettor would be expected to receive a lesser penalty is one which must be approached with considerable circumspection…Obviously, whether or not an aider and abettor should get a different penalty to that imposed upon the person who undertakes the commission of the offence must be determined in the light cast by all of the circumstances bearing upon the offence and the offender involved. We do not understand the Court in Bannon and Calder to have suggested otherwise.'

29It's further stated at paragraph 9.7.3.1 as follows:

‘…sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals… Commonly an offender’s role in offending will only be fully illuminated by an examination of the events surrounding, but not necessarily part of the offence.'

30As to penalty, the prosecutor on behalf of the Director submitted globally in regard to all of the prisoners that immediate imprisonment was the appropriate sentence, with an alternative insofar as Mr Hughes-Firgaria being that, he could be granted a s.44 order, which would be a combination of immediate imprisonment and a community corrections order.

31In regard to the submissions made as a community corrections order insofar as Mr Athanasiadas and both of the Dib brothers, the prosecution opposed such.

32Coming to Charge 1, insofar as Mr Athanasiadas is concerned alone, the prosecutor submitted that such offence was premeditated, in the sense that he had been looking all afternoon for Mr Yakub and when he found him, he sideswiped him in the car because Yakub would not stop and talk.

33Mr Hannebery submitted that the premeditation should be seen as limited, that the actions of Mr Athanasiadas, albeit that he had been looking for Mr Yakub, on the evidence were actions taken on the spot and came about from anger which Mr Athanasiadas allowed get the better of him, when he moved his car into the side of the other car.  I accept the submission made by Mr Hannebery that premeditation for Charge 1 must be seen as limited.

34However, as Mr Hannebery also accepted, the actions of Mr Athanasiadas in this instance were dangerous, actions which involved driving on a public road.  I assess this as a serious example. In the circumstances, I assess the culpability or the heinousness, on the scale of heinousness as set out by the High Court in Ibbs v The Queen (1987) 163 CLR 447, as mid-range.

35Insofar as the submissions that the Charge could have been heard in the Magistrates' Court, it may be true if looked at on its own and was heard summarily, however clearly given its role in the totality of these circumstances, it was correctly left to be heard in this Court.

36As to Charge 2, the false imprisonment, I have accepted that the false imprisonment would only have lasted a maximum of two hours.  However, I find, the jury have accepted the evidence that over that period, Mr Yakub was restrained against his will by the use of violence, threat of violence and the use of a pistol.  That in this period, Mr Yakub’s life was threatened and he was only released by Mr Athanasiadas after Mr Athanasiadas had got what he wanted, being the transfer of the car and the money, albeit not by way of robbery.

37The learned prosecutor, who was the trial prosecutor, in his final address to the jury, maintained that the main offenders insofar as the false imprisonment were Mr Athanasiadas and Mr Ahmed Dib.  Insofar as Mr Athanasiadas was concerned, in my view the positioning of him as a principal was correct.  He had motive for this offence.  He arranged the whole escapade.  I have no doubts that he paid for the Dibs to come down from Sydney, as clearly proven by the surveillance material, and he searched for the complainant in the afternoon and as I have already said, in regard to Charge 1, he rammed his car.

38Mr Athanasiadas further created the ruse whereby the complainant came to the garage to see him alone.  This is clearly borne out by calls 25 and 26, in the jury book. Clearly, the jury accepted that upon coming to the premises, he was immediately assaulted by Mr Athanasiadas and that Mr Athanasiadas partook in the assaults perpetrated thereafter.

39As to Mr Ahmed Dib, by the jury findings, he partook by way of encouragement and participation in this crime. Perception of his intent and role was enhanced by the recordings of the phone conversations between him and Mr Athanasiadas.  Mr Athanasiadas himself confirms in the call at p.134 in the court book that the Dibs are 'here for me.' I am satisfied on the evidence that the jury found, beyond reasonable doubt, Mr Athanasiadas paid for the Dibs to come to Melbourne, in the sum of $6,000, that their role was clear, to assist him to collect money from the complainant and that such was going to be done in one day, see in particular calls 1-3 at pp.60-66 of the jury book.  

40Mr Ahmed Dib participated in the search, with Mr Athanasiadas, for the complainant on the afternoon of 11 January, in that he was a passenger in the car when Mr Athanasiadas committed Charge 1. Further, Mr Ahmed Dib was present in the garage when the complainant was assaulted and himself produced the pistol. All of which would have been rightly taken into account by the jury when considering element 3 of Mr Ahmed Dib's secondary liability. Further, what the jury would have taken into account, and in my view accepted beyond reasonable doubt, is the evidence of the complainant, of the threats made to the complainant upon leaving, recorded at transcript 90, and Mr Dib making such threats when the gun was plainly visible.

41Insofar as Mr Hussein Dib and Mr Hughes-Firgaria, clearly in regard to the false imprisonment, they played lesser roles, albeit they are guilty of such crime pursuant to the provisions of s.324 of the Crimes Act.  Hussein Dib actively participated in the actual violence and fear instituted upon the victim which established and maintained the false imprisonment, after the initial beatings. 
He thereafter placed the complainant on the footrest. The complainant said, and the jury must have accepted, that Hussein Dib thereafter kept beating him. The complainant said that such beating continued until he agreed to do what they wanted. 

42As to Mr Hughes-Firgaria, albeit that there is no direct evidence of him being actually part of the violence inflicted, and he was found not guilty of same, his actions as part of the search for the complainant in the afternoon, his presence in the garage, his obtaining the car, his purchasing the chicken and the throwing of the chicken bones at the complainant thereafter, were all circumstances whereby, the jury quite rightly found him guilty by way of encouragement and assistance.

43Given the maximum sentence by Parliament, this crime should be seen as a serious offence.  As to the objective criminality of the crime, it had planning, there was a lead up by way of search and ramming, there was a duping of the victim, this false imprisonment was committed in company and was maintained by the use of violence and the threats of violence.

44In analysing this crime on the scale prescribed by the High Court in Ibbs (1987) 165 CLR 447, 452, I would assess this as a mid-range crime. Of course, insofar as the individual sentences, it is necessary for me to take into account the individual roles in pronouncing sentence, albeit that they are deemed guilty of the crime by way of the provisions of the Crimes Act. It is clear, given that this crime was committed in company and with the use of violence, it was never a matter that could ever have been heard summarily.

45Coming to Charge 5, Mr Athanasiadas is clearly the principal. As to Mr Hussein Dib, I find, the jury have accepted beyond reasonable doubt he actively assisted. While found liable, there is no evidence of Mr Ahmed Dib being involved, in that his own personal actions inflicted any particular injury, albeit that he had a role by way of the overall planning, arranging to bring his brother down to assist, being paid to be part of the criminality.

46If looked at independently, such could have, as submitted by counsel to the Court, been tried summarily.  But being committed in company, I find, there was no way that any Magistrate would appropriately consider hearing such in the Magistrates' Court.

47Insofar as that charge is concerned, I accept while the injuries are significant, there are no ongoing physical impacts that have been put before the Court.

48Insofar as Exhibit 5 which is the victim impact statement of Mr Yakub, as I have said today, I do not take into account those matters that do not relate to the criminality with which I am dealing, and I have detailed those with counsel. 
Apart from that, it seems to me that the matters referred to are appropriate and not exaggerated, the ongoing psychological concerns, the issue of flashbacks, the impact on his life thereafter from what occurred to him in this two hours in the garage seemed to me to be not exaggerated in any way. I take such into account in assessing the circumstances of this crime.

49Given the above, I accept the submission of counsel that I should assess this crime by way of culpability at the lower level, albeit the injuries received and that it was effected in company.

50As to the particular pleas, in regard to Mr Athanasiadas, Mr Hannebery tendered a written submission, Exhibit A1. As I have indicated, but for clarity, I accept the propositions he put in paragraphs 3(a), (e) and (f).  I have already explained my conclusions as to paragraphs 3(b) and (d).  As to four, I accept the propositions put in sub-paragraphs (a), (c) and (d).  I reject, as I have already indicated (e).  As to (b), clearly the jury accepted that there was a debt.  However, considering the jury quite rightly, in my view, totally rejected the evidence of Mr Athanasiadas, I would not conclude that the debt was to any sum higher than the evidence given by the complainant, that is, $12,000.

51As for the matters personal to Mr Athanasiadas, I take into account the matters put in the submission, in particular those matters at paragraph 17.  Clearly, it is to Mr Athanasiadas' credit that he has no priors whatsoever.  He did ultimately plead guilty to Charge 1 and is entitled to a discount in regard to that, albeit somewhat late.  Insofar as the bail conditions, I accept that he has been subject to one year of curfew.  He has been reporting three days a week, which seemed to me to meet the standard that was put by Mr Hannebery that they had been restrictive bail conditions that have been adhered to. The pre-sentence detention in regard to Mr Athanasiadas is 22 days.

52Mr Hannebery put to me that I should see this behaviour as an aberration, which has come about from a long-term relationship which went wrong.  That Mr Athanasiadas comes before the Court with an otherwise good character with the obvious support of his family, with a good work history and with good prospects.

53Mr Hannebery accepts that insofar as Charges 2 and 5 are concerned, there can be no remorse in his client's favour.  I will make the point however, that, and this relates to all parties, to place the Crown upon their proof in regard to a trial in no way reflects unfavourably upon any of the prisoners.  They are fully entitled to plead not guilty and have the prosecution prove its case.  There is no way in those circumstances they suffer as a result.

54I note, and I do not note this in any adverse sense, in the report I received (Exhibit 1), as to Mr Athanasiadas from the community corrections department that Mr Athanasiadas maintained in totality his evidence, which was rejected by the jury.

55Mr Hannebery submitted that in all the circumstances, I should consider a community corrections order.  While giving no indication of the acceptance of such submission, I authorised the preparation of a report. That report was positive insofar as Mr Athanasiadas is concerned and tendered today as Exhibit 1 and is dated 28 October 2019. I thank the officer for that report. I also accept the statistics put to me by Mr Hannebery. The up to date statistics to which he has been referred to have been tendered as Exhibit A3. I have indeed taken those into account. I refer to the limitations of such statistics, per the Court of Appeal in Hasan [2010] VSCA 352, and in particular the limitations of the use of such material set out at paragraphs 45 and 46.

56I accept as decreed by the High Court DPP v Dalgliesh (2017) ALJR 91 1063, 1072 and [49], in sentencing Mr Athanasiadas, and indeed all of prisoners, in, that Mr Athanasiadas is entitled to individualised justice based on the particular facts of this case. Hopefully, that is a principle that has always been adopted by this Court.

57I have considered all of the submissions made on behalf of Mr Athanasiadas.  However, I have, unfortunately for him, concluded that given the seriousness of this offending, in particular the false imprisonment, it is inappropriate to pass upon Mr Athanasiadas any punishment but for immediate imprisonment. 
In that regard, I accept the submission put by the prosecutor.  I do so after having given due consideration that Mr Athanasiadas is still a young man and comes before the Court without any priors.  I accept that he has rehabilitative prospects and I also take into account the delay that has been effected in his life, given the time it has taken for this trial to be heard. The sentence to be imposed must take into account the delay that Mr Athanasiadas has suffered, and the difficulties that has meant for him in conducting his life. 

58However, unfortunately because of the concentration in this Court of sexual cases, cases involving crimes classified as violence go to the bottom of the queue insofar as getting on.  That does not, by way of explanation, take away from the fact that I have taken delay into account.

59In balancing the factors involved in the instinctive synthesis, which factors I have referred to, and the factors set out in ss.5 and 6 of the Sentencing Act, I have determined that a community corrections order would be an inappropriate sentence, despite the sentiments expressed by the Court of Appeal in Boulton [2014] VSCA 342.

60I have taken into account in that determination the words of Priest JA in Hutchinson [2015] VSCA 115, in particular at paragraph 17 when he said:

‘There will be cases — indeed, many cases — where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just.'

61I find Mr Athanasiadas, given your principal role and the requirement for a sentence which effects denunciation of such crimes, general deterrence and appropriate punishment that such principles must override the favourable mitigating factors that have been put forward on your behalf, to which I have referred.

62HIS HONOUR:  Mr Athanasiadas, please stand.

63On Charge 1 of intentionally causing damage to property, you will be sentenced to a period of imprisonment of six months.  On Charge 2 of false imprisonment, a period of imprisonment of 18 months.  On Charge 5 of recklessly cause injury, a period of imprisonment of nine months.

64Using Charge 2 as the base sentence, that is the period of 18 months, I order that two months of the sentence on Charge 1 and three months of the sentence on Charge 5 be based cumulative 14 upon each other and the base sentence, making a total effective sentence to which you are sentenced, Mr Athanasiadas, of 23 months.  I order that the non-parole period that you must serve before being eligible for parole is 14 months.  I also declare the 22 days you have served by way of pre-sentence detention should be recorded in this Court as service of this sentence and a declaration of that effect be recorded.

65The matter as to forfeiture is to be decided. I am required by Parliament to tell you this, that had you not pleaded guilty to Charge 1, the sentence that I would have imposed would have been a period of nine months.  However, because of your plea, the sentence imposed is the period of six months.

66Mr Nathanielsz, is there anything that I need to clarify in regard to
Mr Athanasiadas?

67MR NATHANIELSZ:  No, Your Honour.

68HIS HONOUR:  Yes, well good luck, Mr Athanasiadas, he can be taken down.

(Prisoner ATHANASIADAS removed.)

69I then come to Mr Ahmed Dib.  Mr McQuillan made an oral submission to the Court.  It is noted that insofar as Mr Ahmed Dib's prior offences are concerned, he has none for violence.  However, he does have significant prior offences.  He has a count of trafficking in ecstasy for which he was given five years imprisonment with a minimum of three years imprisonment in November 2008, and in 2005, he was given a sentence of 18 months imprisonment for aggravated break and enter and other charges.

70It was, and I accept, pointed out that Mr Ahmed Dib has not offended since he was released in 2011. I find that the crimes of Mr Ahmed Dib, in particular the false imprisonment, are aggravated by the agreement he made to travel to Melbourne to commit those crimes, and the fact that he was paid for these crimes.  It is also aggravated for the role he played, as I found. I am satisfied that there was specific use by him in the false imprisonment of a pistol.

71Mr Ahmed Dib was found to have encouraged and assisted the assault, albeit that that he played no part in any actual physical infliction.  I note that he has now served 118 days.  I also accept that he has had restrictive conditions insofar as his bail is concerned, by way of reporting and curfew and I take those matters into account.

72In regard to his personal circumstances, Mr Dib is 34.  He was born in the west of Sydney.  His father unfortunately died when he was 13.  His mother subsequently remarried some two years later and very shortly thereafter, he went to live with his grandmother.

73With one of those twists in life, not only did she look after him but they have remained very close and he now looks after her.  I accept that this will be a difficult sentence for her.

74He has, unfortunately because of his upbringing and social conditions, been the beneficiary of a limited education.  His employment has been interfered with by gaol. However, at the age of 28, he was running his own business in Melbourne in 2017, transporting building materials from building sites.  He was also conducting a car hire and wedding bus business, which was finalised, at least operatively as I understand it, when he moved back to Sydney approximately three months before these crimes were committed.  He now lives in Sydney with his partner.

75Mr McQuillan's primary submission was that the time served of 118 days was sufficient in these circumstances, which is now 134 days, I indicated to Mr McQuillan I was not accepting of that. Such was also opposed by the prosecution.

76Mr McQuillan submitted that the categorisation of both crimes should be seen at the low level.  It is clear from my findings that I disagree in regard to Charge 2, false imprisonment.  However I accept the other categorisation. 
Mr McQuillan submitted to the Court that should the view be that the 134 days is not sufficient, then a short, sharp sentence would be appropriate.

77Subsequently, in further submission, Mr McQuillan said that a sentence combined with a community corrections order should be considered by the Court. I indicated that I would support in those circumstances, but not in any way indicating I would grant it, the preparation of a report.  Such report has been tendered today and is Exhibit 2 on the plea.  It was positive in regard to Mr Dib and I understand today the comments insofar as the issue as to the address.  As I said, I endorse the proposition made by the prosecution that the time served is insufficient.

78Insofar as the granting of a community corrections order, albeit by way of being combined with a period of immediate imprisonment, I find, and have concluded after considering all the factors in Mr Dib's favour, that the offending here, especially the false imprisonment, combined with the recklessly cause injury are such that a community corrections order for you, Mr Dib, would be inappropriate and not serve the principles of sentencing that I have detailed.

79I repeat the quotation made from Hutchinson that yours is not an appropriate case for making such an order.  In making such determination, I have of course taken into account all the factors put on your behalf by Mr McQuillan.

80HIS HONOUR:  Mr Dib, please stand.

81On Charge 2, of false imprisonment, I sentence you to a period of imprisonment of 14 months.  On Charge 5, of recklessly cause injury, I sentence you to a period of imprisonment of nine months.  Using the base sentence of false imprisonment of 14 months, I order that three months of Charge 3 be served cumulatively upon the base sentence making an total effective sentence, Mr Dib, for you of 17 months.  I order that the non-parole period that should be fixed in regard in regard to your sentence is one of 11 months and I declare pursuant to s.18 that the 134 days that you have served to date be deemed service of that sentence and that a declaration to that effect be recorded in this court.

82Mr McQuillan, is there any other matters that I need to clarify?

83MR McQUILLAN:  No, sir.

84HIS HONOUR:  Yes, Mr Dib, good luck.  Mr Dib can be taken down.

(Prisoner AHMED DIB removed.)

85As to Mr Hussein Dib, the trial prosecutor put in final address to the jury that Mr Hussein Dib played a lesser role than Mr Ahmed Dib in the false imprisonment.  Presumably that was because of the use of the gun by his brother, and that Mr Hussein Dib was not involved in the negotiations with Mr Athanasiadas and nor was he involved in the planning of the crime.

86At the plea, Mr Livitsanos did not resile from that proposition, but equally put that the appropriate imprisonment for Mr Hussein Dib was one of immediate imprisonment only.

87Clearly, Mr Hussein Dib, you were actively involved in the violence, not only making you liable for Charge 5, but such violence was used to maintain and affect the complainant as part of the false imprisonment. I have also found beyond reasonable doubt that you were aware of the gun.

88As with your brother, and indeed with Mr Athanasiadas, it has been necessary for the Court to consider closely the circumstances where the two crimes are so closely allied, and I have done that.  I have accepted Mr Miller's submission that you were not there for the full period of the false imprisonment.  You left at
10 o'clock with Southby but pursuant to law, you are still liable for all that happened during that two hour period, albeit that you must be sentenced taking account your actual role.

89There is no written submission made on your behalf.  You are 26. 
I take into account the matters by way of background.  It's noted that you have no priors for violence.  You unfortunately finished school early.  You also suffered the same social deprivation that I have referred to in regard to your brother, brought about by the issues with the family. You unfortunately at a young age became involved in crime, in October 13, were sentenced at a very young age of 20 to a considerable sentence for drug offences, five years and six months with a minimum of 30 months. There was a firearms offence included.

90It is somewhat difficult to understand the sentencing material put before the Court, but I am advised that you served a total of four years commencing on
27 April 2012 and were released in April 2016.  This offending therefore occurring some 21 months later.

91Your social issues, lack of education and indeed your incarceration have necessarily reduced your capacity for employment.  Essentially, you have been involved in labouring, and in particular, you have skills as a traffic controller.  As I say, you have had the same personal issues in your social upbringing as your brother.  You unfortunately have had a drug issue from a very early age.  You have been, while on remand, subject to restrictive conditions which you have served, in the 18 months you have been subject to curfew from the hours 10.00pm to 6.00am. I accept the submission put to me that they are restrictive conditions.  You have served, insofar as pre-sentence detention is concerned, 113 days. 

92As to your role in the assault, you were very active. I take into account there were no grave physical injuries incurred.  I also taken into account obviously the victim impact statement insofar as the mental issues and psychological issues suffered thereafter.

93It was submitted by Mr Miller that a community corrections order, or at least a community corrections order with immediate gaol, would be appropriate in all the circumstances. That if required, and deemed appropriate by this Court, you will be prepared to move to Melbourne and live at the address as indicated.  Given that submission, I indicated, without any commitment, that I would get that report, such has been tendered today as Exhibit 3, and saw you as appropriate for such a disposition and gave you a positive report.

94Mr Dib, after anxious consideration, I have concluded that the submission of the prosecution should be accepted.  Due to your role in both the serious crime of false imprisonment and the recklessly cause injury, I find, that in the circumstances, a community corrections order would not be appropriate.  I repeat the quotation I have made in these sentencing remarks as to Hutchinson. This is not an appropriate case for same.

95I do take into account the matters that have been put to me by your counsel and I have formed the view, unfortunately for you, that those factors which are in your favour must unfortunately be, in balance, overwhelmed by the need for appropriate punishment, denunciation and general deterrence.

96HIS HONOUR:  Mr Dib, please stand.

97On Charge 2 of false imprisonment, you are sentenced to a period of imprisonment of 12 months.  On Charge 5 of recklessly cause injury, a period of imprisonment of nine months.  The base sentence imposed will be the period of 12 months in regard to Charge 2 and I order that three months of the sentence imposed on Charge 5 be cumulated with the base sentence giving you an aggregate sentenced of 15 months.  I order that you serve a non-parole period of eight months before you are eligible for parole and I declare that the pre-sentence detention of 113 days be deemed service of this sentence and that a record of that be recorded in this court.

98Mr Miller, are there any matters that I have not taken into account?

99MR MILLER:  No, Your Honour.

100HIS HONOUR:  Yes, good luck, Mr Dib.

(Prisoner HUSSEIN DIB removed.)

101Coming then finally to Mr Hughes-Firgaria. There were no written submissions in regard to Mr Hughes-Firgaria.  Ms Rolfe appears today, Mr Richter made the plea.  I have indicated in my findings his role in both the encouragement and assistance in the serious crime of false imprisonment.

102I accept the proposition put by trial counsel, and indeed by counsel who appeared for the Director in the plea, that you are clearly at the bottom of the tree in this criminal enterprise.  It is also put that you did, albeit late, offer to plea to the Charge that you were convicted of. 

103You are a concreter by occupation.  You come before the Court at the age of 26 with no priors.  It was put that this would have been subject to a different regime had it been heard in the Magistrates' Court, however clearly given the multiple accused and the circumstances, that was not appropriate.

104You have been on bail for a period of 18 months and there have been no breaches and you have been subject to restrictions.  You have solid family support.  You have a partner who, I understand, is here and you have three children.

105It was put on your behalf by Mr Richter that given the findings of the jury, as I have interpreted them, and as I have accepted Mr Richter's submission, that you must be seen as a person who had a minor role in this crime.  It was put that in those circumstances, a community corrections order is appropriate for you.  Exhibit 4 is the report that I ordered insofar as that submission was concerned and it is noted in that report that not only is it positive, it notes that you have fortunately come to some understanding of what you had been involved in, the stupidity of it and the circumstances and the terror that must have been caused to the victim.

106It was the view of the prosecution and strongly submitted that irrespective of your background, in particular your good working record, no priors and good prospects for rehabilitation that there still must be, because of the seriousness of the crimes, immediate imprisonment passed on you, albeit that it could be a combined period of immediate imprisonment with a community corrections order.

107Mr Hughes-Firgaria, I have given anxious consideration to your sentence, in particular to the issues of parity and totality.  Albeit that this crime of false imprisonment is serious, and the jury have found that you have encouraged and assisted in that crime, I accept that your role is quite different to the others whom I have sentenced.

108I also accept the explanation you put in the community correction report that your actions are essentially the misguided actions of you in regard to your best friend, Mr Athanasiadas. At 26 you come before the Court with no priors.  It has always been the view of this Court that if possible, and indeed it is the requirement of the Sentencing Act, that a period of imprisonment should not be applied if there is any alternative.

109Despite the submission of the prosecution, I, after anxious consideration, have determined that I should accede to the plea of Mr Richter and place you on a community corrections order. 

110Pursuant to s.37, I am prepared on the charge of false imprisonment to pass a sentence which will mean that you are sentenced to a community corrections order of three years.

111It is most important that you understand Mr Hughes-Firgaria that during that period of three years, you must not commit another criminal offence.  Let me now warn you, you come back in front of me, having breached that order, there will be no second chance for you.  You have got your chance having committed a very serious offence.  If you come back in front of me, you know what will happen, all right?

112You will be asked to consent. It is my intent that a condition under 48C apply, that is that during the period of three years, that you perform 200 work hours, that you be supervised under 48E, that you engage in any programs recommended to you to assist you in not reoffending under 48D and in addition to that, I intend to fine you for the offence in the sum of $5,000.

113It is necessary before you enter into that community corrections order for you to consent to same and part of that consent there is involved the totality of your punishment involves you understanding that there will be a fine of $5,000. 
I am prepared to give you a stay of 12 months, but I expect in that 12 months a considerable amount to be paid, if not all, and if you come back before me in 12 months, Mr Hughes-Firgaria, seeking an extension, I would expect a substantial amount to have been paid.

114MS ROLFE: If I might approach my client just in relation to the conditions though.  Your Honour, I note that Your Honour had him assessed in relation to community work only and that's on the overall recommendation.

115HIS HONOUR:  Yes, that might be, but it is not my view.

116MS ROLFE:  Yes.  If I might approach, Your Honour.

117HIS HONOUR:  I am keen to make sure he does not come back to Court.

118MS ROLFE:  Yes, Your Honour.

119HIS HONOUR:  And that he gets any assistance he can.  It might well be they take the view he does not need any of these programs but it might not be.

120MS ROLFE:  Yes.

121HIS HONOUR:  Yes.

122MS ROLFE:  I have explained those remarks, Your Honour, there is no opposition.

123HIS HONOUR:  Your client consents to entering into such an order?

124MS ROLFE:  He does.

125HIS HONOUR:  And understands fully my warning?

126MS ROLFE:  Yes, Your Honour.

127HIS HONOUR:  Which will be recorded in the transcript here,
Mr Hughes-Firgaria, so I do not expect to see you in the next three years. 
If I do, then you will not be coming out of that dock then, all right?

128Ms Rolfe, if you would be good enough to assist my associate and have your client sign the document?

129MS ROLFE:  I will, Your Honour.

130HIS HONOUR:  For the crime of false imprisonment, you will be ordered to serve a community corrections order three years from today's date.  The terms of that order are set out and have been explained to you by your counsel. 
The most important thing is you make sure you do not commit any further crimes.  In addition, you will be fined the sum of $5,000 which you will be required to pay to this court within a period of 12 months.  It is possible for you to seek further time but as I have said to you, I expect a substantial amount to be paid before I will be inclined to grant any extension.

131Do I have to make a specific order that that finding was administered here and not allowed to go out to fines, whatever that department is that is totally messing up the whole system?

132The order not to be referred to Fines Victoria.

133Mr Hughes-Firgaria, you were on bail so you can come out of the dock.

134Can I thank all counsel for their help throughout this trial and plea.  Thank you.

135MR LIVITSANOS:  Your Honour, the disposal orders, can I indicate, Your Honour, if counsel can just remain behind just very briefly.  I hope that that can be finalised.  Would Your Honour be content to sign those orders in chambers?

136HIS HONOUR:  Absolutely.

137MR LIVITSANOS:  If Your Honour please.

138HIS HONOUR:  If you have agreed them and take off from whatever, I've got the draft.

139MR LIVITSANOS:  Yes.

140HIS HONOUR:  Have you got the original or have I got it?

141MR LIVITSANOS:  Your Honour, we will likely send through a revised version to Your Honour.

142HIS HONOUR:  All right.  That suits everyone, I'm happy to do that.

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