Director of Public Prosecutions v K Chkhaidem
[2015] VCC 521
•29 April 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01505
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KHALED CHKHAIDEM |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2015 | |
DATE OF SENTENCE: | 29 April 2015 | |
CASE MAY BE CITED AS: | DPP v K Chkhaidem | |
MEDIUM NEUTRAL CITATION: | [2015] VCC | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – conduct endangering serious injury
Legislation Cited: Crimes Act 1958, s23; Sentencing Act 1991
Cases Cited:R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; Arthars v R; Plater v R [2013] VSCA 258
Sentence: Community Corrections Order for 15 months with Justice Plan attached; 6AAA declaration – 12 months imprisonment 6 months suspended for operational period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Hannan | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J McQuillan | Garde Wilson Lawyers |
HIS HONOUR:
1 Khaled Chkhaidem, you have pleaded guilty to the following offences:
(a) Charge 1, that you, at Meadow Heights in the State of Victoria on 25 May 2008, without lawful excuse, recklessly engaged in conduct, namely discharging a firearm at a residential dwelling, that placed or may have placed Rose Graham in danger of serious injury;
(b)Charge 2, that you, at Meadow Heights in the said State on 25 May 2008, without lawful excuse, recklessly engaged in conduct, namely discharging a firearm at a residential dwelling, that placed George Pervuhin in danger of serious injury.
2 Both charges are contrary to s.23 of the Crimes Act 1958 and carry a maximum sentence of five years’ imprisonment.
Circumstances of the offending
3 The Prosecution has prepared a written summary of the circumstances surrounding the offending. Such summary has been marked as an exhibit (Exhibit A) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
(a)At approximately 12.50 am on 25 May 2008, twelve shots were fired at a house at 4 Picola Court, Meadow Heights, Victoria. At the time, the complainants, Rose Graham, and her partner, George Pervuhin, were in the lounge room and, although having heard the shots, were uninjured;
(b)Rose Graham’s son, Daniel Cleghorn, lived at the house and owed drug debts directly to a man named Imran Allouche (“Allouche”) and, indirectly, to Bassam Hamzy, who, at all times, was incarcerated at the Lithgow Correctional Centre in New South Wales;
(c)It is alleged that you, Omar Ajaj (“O Ajaj”), Hamed Ajaj (“H Ajaj”) and Abdulgini Klink (“Klink”) were outside the house when the shots were fired. It is alleged that Omar Ajaj and one of either Klink or H Ajaj actually fired shots at the house. They all sped off in a white ute that was driven by you;
(d)The Prosecution allege that you were part of a joint criminal enterprise to use firearms as an act of intimidation, persuasion for the collection of drug debts. You, with others, acted at the direction of Hamzy, who was to be the ultimate recipient of monies collected.
4 The summary tendered by the Prosecution also makes reference to a number of intercepted telephone calls over the period from 22 May 2008 to 27 May 2008. I will not refer to all such telephone intercepts, save to make reference to the following:
(a)On 22 May 2008, telephone conversations were lawfully intercepted between Hamzy and Omar Ajaj, during which Hamzy indicated that he was having problems in Melbourne and needed Omar Ajaj to travel there with some of his “boys” the following day. Hamzy provided instructions to Omar Ajaj in relation to the collection of money allegedly owed to Hamzy by Allouche, who in turn was owed money by various drug users. Hamzy told O Ajaj, “We’re going to go round with him and help him collect his money”;
(b)At 4.07 pm on 23 May 2008, Hamzy telephoned you and asked whether you can obtain “toys” – a code for firearms – and you indicated your preparedness to assist and source such firearms;
(c)At 4.10 pm on the same day, you telephoned Hamzy and indicated that you could get two firearms. At 4.11 pm, you texted Hamzy “22 at 5300” – this is alleged to be code that a 0.22-calibre firearm is able to be bought for $5,300. At 4.22 pm, you texted Hamzy:
“Hey, big brother … dud u want those shoes size 45? I might be able to get it for you 2nite. It’s not 100% let me know.”
(d)At 9.45 pm on 23 May 2008, Hamzy spoke to you and you told him that they have “toys with no petrol”. Hamzy indicated the need for “petrol” (ammunition). Hamzy told you that “petrol” was needed and for you to go straight to the house of Allouche. When you were asked by Hamzy who had “toys”, you indicated that you did, as well as “your cousin” (Omar Ajaj) and “Amed”);
(e)Further intercepted conversations between Hamzy, Allouche, Omar Ajaj and yourself continued throughout 24 May 2008;
At 7.26 pm on 24 May 2008, there is further discussion between Hamzy and Allouche about using acts of violence to facilitate the collection of money allegedly owed to them. Allouche states:
“I said to Khaled ‘all ready to go to get the boys from the city, and come and meet up with me, the addresses I’m gonna give youse, youse going to smash things, bring the bo, bo, boys they’ve got err, that owe me money and then we’ll work it out from there’.”
Hamzy confirms with Allouche that the boys had three firearms in their possession, to which Allouche responds:
“I have one toy, and Khaled has one toy.”
During this conversation, Allouche also refers to “toys” as pistols and Hamzy says:
“And now, we’re just gonna go there and we’re gonna smash, slaughter and fuck them.”
He also instructs that he does not want you to get out of the car;
(f) At 7.50 pm on 24 May 2008, Omar states that he is with you and the boys and that you are going to take them to Amron’s;
(g) At 11.21 pm on 24 May 2008, Hamzy has a discussion with Omar Ajaj when it is confirmed that you had a discussion with “Woody’s” friend about the debt owing and their intent to pay. Telephone records at 11.33 pm on that day confirm that you are with Omar Ajaj at Broadmeadows at the premises of Allouche.
(h) At 7.52 pm on 26 May 2008, you take Klink to the airport and afterwards ring Hamzy and state:
“I thought I give you a call before I take the boys to the airport … I’ve been with him all day. … Brother, from the minute they got here I’ve been the whole day with them until they leave. … They’re with me. … I haven’t left them.”
5 In essence, the prosecution case against you is that the intercepted telephone conversations reveal:
(a) Your ability, willingness and intent to provide and source firearms for the general purpose of intimidation and collection of drug debts on behalf of Hamzy;
(b) That you negotiated with Woody’s offsider as part of that process, and because of your knowledge of Melbourne, you had the task of driving the others around;
(c) That you drove to the house at 4 Picola Court, Meadow Heights, so that the offence could take place. Although the prosecution do not allege that you were one of the shooters, it is alleged you were a party to the agreement to shoot at the house and were present when it occurred as part of that agreement.
6 I was also informed through your Counsel that you accept the accuracy of the Victoria Police Criminal History Report in relation to your prior offences. These offences are:
(a) At the Broadmeadows Magistrates’ Court on 31 January 2002, you were convicted of possessing explosives without being licensed and fined $300.00;
(b) At the Melbourne Magistrates’ Court on 14 May 2004, your initial sentence was varied, that in default of payment you were to perform 17 hours of unpaid community work;
(c) At the Melbourne Magistrates’ Court on 16 August 2005, you were found guilty of obtaining a financial advantage by deception, using a false document to produce another to obtain property by deception for which you were fined an aggregate sum of $300 with no convictions being recorded;
(d) At the Melbourne Magistrates’ Court on 1 December 2006, you were found to have failed to comply with a Community Based Order relating to an earlier charge of possessing explosives without being licensed. The Community Based Order was cancelled and in default of payment of $20 you were ordered to perform one hour of unpaid community work.
7 Your counsel, in support of your plea in mitigation, tendered the following documents:
(a) A Statement of Intellectual Disability from the Department of Human Services pursuant to the Disability Act 2006 (Exhibit 1);
(b) Arbias Report dated 15 February 2007 (Exhibit 2);
(c) Report from Forensicare dated 8 October 2007 signed jointly by the psychiatrists, Dr Richard Keuneman and Dr Danny Sullivan (Exhibit 3);
(d) Neuropsychological report of Dr Yucel dated 30 April 2008 (Exhibit 4);
(e) Psychological report of Dr A Cunningham dated 21 February 2012 (Exhibit 5).
8 Based on some of the materials tendered and the submissions made by your counsel, I set out the following details in respect to your personal circumstances, your educational and vocational background.
9 You were born in Brunswick in June 1982 and are presently 32 years old. You were 25 years old at the time of the offending.
10 You are one of five siblings, with you being the second youngest. Your father was employed as a gardener and your mother was on a Disability Support Pension. You reported to Dr Cunningham that you had a good childhood with no abuse or trauma.
11 You attended Moreland Primary School and then Coburg High School where you completed a Year 7 pass. You left school at the end of Year 7 without the ability to read or write, and decided to work as a spray painter for one year (although some records would suggest you never attained any employment).
12 At the age of 13, you were involved in a significant car accident in Lebanon, which caused fractures to both legs and a brain injury from which you were in a coma for about a month.
13 Your parents separated in about 2006 and whereas they had been very strict, you report that you took advantage of the absence of structure following your parents’ separation by staying out late and attending nightclubs regularly.
14 At the age of about 25, you married Michelle, and from that relationship have had two children. You describe your relationship with your wife and children as “the best”. You and Michelle moved into a rental property in Chadstone, which helped separate you from a negative peer group in Broadmeadows.
15 You denied to Dr Cunningham that you had ever abused alcohol or taken illicit substances, save that you did try one pill in your early twenties.
16 You did report to Dr Cunningham that for the period from about 2010 up to when he saw you (at least) you needed Xanax, in order to get to sleep at night, and also had been prescribed anti-depressants after your best friend had been killed some 18 months earlier, prior to the consultation.
17 Save for some purported work after leaving school, you have been largely unemployed, save for some travel to Lebanon. At various times, you have received Centrelink payments.
18 Your counsel informed me that on 2 March 2012 you pleaded guilty to various offences in the New South Wales District Court and received a head sentence of four years and three months, with a non-parole period of two years and three months. You commenced your parole period on 23 May 2014 and continue to be on parole for that offending, together with being on bail for the subject matter.
19 The New South Wales gaol sentence was in respect of offences committed on 11 May 2008 and 17 May 2008. (I shall refer to such offending as the “earlier offending”). Such earlier offending occurred shortly prior to the subject offending. The earlier offending occurred when again you were acting at the behest of Hamzy. I was informed by your counsel that you were acting as a so called “mule” for Hamzy, when he had people transferring ecstasy from Sydney to Melbourne, and in the process of performing such act, you were apprehended in possession of a commercial quantity of MDMA (1000 tablets).
20 Your counsel also informed me that on 8 April 2009, you were sentenced in relation to handling weapons, but that such offences dated back to 2001.
21 You continue to live with your wife and children, and presently receive Newstart benefits from Centrelink.
22 Your counsel submitted that the following matter should be taken into account by way of mitigation in consideration of your sentence:
(a)Your plea of guilty, albeit on the eve of the trial. Your counsel submitted, notwithstanding the late plea, there is utilitarian value to the community by saving the time and expense of a trial. Furthermore, it was submitted by your counsel that I should take into account, when considering the late plea of guilty, your intellectual impairment and low mental functioning, which would impact on your decision-making processes;
(b)The issue of delay. In the broad sense, it is now some seven years since the relevant offending, and seemingly the New South Wales Police did not notify the Victorian Police until some date in 2010, with charges ultimately laid against you in 2011. Your counsel submitted that there was undue delay from when the offence occurred until when the Victorian Police were informed of your involvement, and indeed further delay from that point to when charges were laid, and indeed until this plea hearing.
(c)The principle of totality, bearing in mind that you pleaded guilty and were sentenced in the New South Wales District Court on 2 March 2012, in relation to offences coupled to Hamzy at about the same time. It was submitted by your counsel that the dates of the offending are so close that you could have had matters dealt with together, causing you to serve a period of custody between the date of the offence and the ultimate plea hearing. The issue of totality should be given significant weight, given the closeness of time between the date of the subject offence and the offences for which you were sentenced in New South Wales.
23 At what your counsel referred to as the “heart of the plea” is your intellectual impairment, and that at best you were a naive follower of others, rather than playing a more significant role in the joint criminal enterprise on the night of the offending.
24 Before noting the evidence in relation to your intellectual impairment, I do refer to the report of Dr Cunningham, who is seemingly the most recent examiner in relation to psychological matters. After various testing and mental-state assessments, Dr Cunningham was of the opinion that you did not meet the relevant criteria for a mental illness. However, other testing placed you, accordingly to Dr Cunningham, in the “intellectually impaired” range of intelligence, with your performance in the lower five per cent of age peers. Furthermore, other testing to assess the presence of malingering and/or deception signified a very high probability of genuine responding.
25 You were also tested for the assessment of recidivism, and were assessed to be in the “low-moderate risk needs” range of reoffending.
26 Dr Cunningham was of the opinion that your intellectual impairment would have increased your susceptibility and vulnerability to negative peers, and impaired your ability to exercise appropriate judgment with respect to offence behaviour. At the time of his examination, (January 2012), Dr Cunningham considered that you had several current protective factors that may reduce your risk factors, stabilise you within the community, and improve your psychological functioning. In particular, Dr Cunningham considered you had some insight into the risk associated with continued negative peer association. You have increased stability support in the context of your marital relationship, and have made attempts to separate from a negative peer group. At the time of his report, Dr Cunningham considered that a term of imprisonment would weigh more heavily on you compared to an individual without an intellectual disability, and, further, there was a “serious risk” that imprisonment would have a significant adverse effect on your mental health.
27 Back in February 2007, you were assessed by the Acquired Brain Impairment Assessment Unit (Arbias) because of then concerns as to your ability to comprehend information related then, upcoming court proceedings. Testing by Arbias at that time found you to have the verbal intelligence quotient of about 65 with a full-scale IQ of 60, which placed your intelligence in the intellectually-disabled range. You were later examined by psychiatrists at Forensicare in August 2007 for similar reasons, and they came to the view that you would qualify on their testing as “mildly intellectually disabled”. It was their opinion that such disability was most likely secondary to the acquired brain injury following the motorcar accident.
28 By way of a Statement of Intellectual Disability issued by the Department of Human Services under the Disability Act 2006, you were certified to have an intellectual disability, manifesting itself in:
(a)Significant sub-average general intellectual function; and
(b)Significant deficits in adaptive behaviour;
each of which became manifest before the age of 18 years.
29 You also underwent neuropsychological testing on 12 March 2008, a short time prior to the subject offending. After various tests conducted by the neuropsychologist, Dr Murat Yucel, it was found that you were estimated to fall within the range of 53–61, placing you in the “extremely impaired” range. Dr Yucel was also of the opinion, notwithstanding your intellectually-impaired capacity, that you did have the ability to display a higher level of functioning in response to environmental prompts; for example, you had managed to obtain a licence and drive a motorcar, and your earlier criminal activity involved obtaining a financial advantage by deception, which would suggest a higher level of functional ability.
30 In particular, Dr Yucel was also of the opinion that you are vulnerable to impulsive acts that are unplanned, urgent, and without regard to future consequences, although you could be expected to have a basic level of understanding of moral reason to understand and appreciate the nature of the alleged offences undertaken by you.
31 Your counsel also referred to the following matters, which he submitted were relevant in coming to an appropriate sentence:
(a)Relying on the principles enunciated in the well-known case of R v Verdins; R v Buckley; R v Vo [2007] VSCA 102, and, in particular, based on the report of Dr Cunningham, he submitted that all six principles outlined in that decision are relevant to the sentencing disposition. In this respect, he submitted that your impaired mental functioning:
(i) Reduces the moral culpability of the offending conduct, as distinct from your legal responsibility, and accordingly affects the punishment that is just in all the circumstances, (with denunciation less likely to be a relevant sentencing objective);
(ii) Has a bearing on the kind of sentence that is imposed, and the conditions in which it should be served;
(iii) Means that general deterrence should be moderated or eliminated as a sentencing consideration, considering the nature and the severity of the symptoms exhibited by you and the effect of the condition on your mental capacity (whether at the time of the offending or at the date of the sentence or both);
(iv) Means that specific deterrence should be moderated or eliminated as a sentencing consideration, given the nature and the severity of the symptoms of the condition exhibited by you and the effect of the condition on your mental capacity, (whether at the time of the offending or at the date of the sentence or both);
(v) Means that the existence of such condition at the time of sentencing means that a given sentence will weigh more heavily upon you than it will on a person in normal health;
(vi) Means that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
(b)The principle of parity, in that Imran Allouche, (a person who was also involved in the present offending) was convicted and sentenced to a suspended sentence of imprisonment for 12 months in respect of the same offences. Your counsel noted that Allouche also relied on the issue of delay, and had also spent one month in custody.
32 In all the circumstances, your counsel submitted that either a wholly suspended sentence or, alternatively, a community correction order with appropriate conditions, would be an appropriate sentencing disposition.
33 In response, counsel for the prosecution conceded that you do suffer from an intellectual impairment, although noting that the reports are prior to the subject offending. He also stressed that the reports make clear that you do know right from wrong.
34 In particular, counsel for the prosecution accepted that, in relation to both offences, concurrency would be appropriate, and furthermore, there need not be an immediate term of imprisonment.
35 The court arranged for you to be assessed by the Community Correctional Services to determine your suitability for a community correction order. In a report dated 16 April 2015, an officer from the Community Correctional Services ultimately assessed you as suitable for a community correction order with various conditions involving community work, treatment and rehabilitation of mental health, supervision, and a justice plan.
36 It is noted in the report that there is a matter of some “concern” that you have not been compliant with previous orders pursuant to Community Corrections. You informed the officer at Community Correctional Services that you are motivated to remain offence-free within the community due to family commitments, and since your time in custody in New South Wales, you have further motivation to avoid a custodial sentence.
37 The court also arranged for you to be assessed for a justice plan when you visited the offices of Disability Services on 26 March 2015, which was later followed by a home visit on 2 April 2015. In a report dated 13 April 2015, the authors from Disability Client Services note:
“Mr Chkhaidem discussed a goal to obtain employment and ‘support his family’. Mr Chkhaidem is currently not working, however stated his willingness to try ‘anything’. Mr Chkhaidem advised that he has struggled to gain employment due to his brain injury and physical limitations. Mr Chkhaidem states that his literacy difficulties have also contributed to this. Despite many attempts to increase his literary skills, he states that ‘nothing has worked’. Mr Chkhaidem has been receiving support via an employment agency, however does not feel that the work suggested to him has been appropriate to his needs. Mr Chkhaidem is willing to receive support from the Department of Health and Human Services to further explore employment options. Mr Chkhaidem stated that he is also willing to consider more appropriate literacy programs that could be tailored to his needs and increase his opportunity to secure employment.
Mr Chkhaidem has indicated an understanding of the requirements of his justice plan and has agreed to comply with the recommendations.”
38 In particular, the justice plan recommends that you engage with the Department of Health and Human Services case manager for the purposes of identifying and participating in appropriate supports and services aimed at reducing the likelihood of your reoffending. Furthermore, you have expressed a willingness to participate in appropriate literacy or pre-work schools training opportunities. You will benefit from receiving support from a specialist disability employment and training service to assist you in these areas.
Conclusion
39 Any crime which involves the use of guns in the community must be strongly denunciated. In particular, the community will not tolerate, and should be protected against, so-called “drive-by shootings”. The subject offence is a flagrant example of the illegal use of firearms to intimidate people who are otherwise doing no more than relaxing in the lounge room of their private residence.
40 I do accept, as alleged by the prosecution, that although you were not a shooter at the time of the offending, you did source and provide at least some of the firearms for the purpose of the drive-by shooting, negotiated with Woody’s offsider as part of the process of obtaining the drug moneys, and were the driver at the time of the drive-by shooting. Seemingly, there was little financial reward for your actions, and you were acting at the behest of the criminal Bassam Hamzy to whom you had been a drug mule shortly prior to the subject offending.
41 After a perusal of all the evidence pertaining to your mental capacity, I do find that you are intellectually impaired and unable to read or write English. I also accept that although you have the capacity to appreciate right from wrong, your intellectual impairment permits you to be easily led and vulnerable to impulsive acts, although clearly enough you are capable of obtaining your licence, driving a motorcar, and as noted by Dr Yucel, capable of being involved in crimes of obtaining a financial advantage by deception, as demonstrated by your earlier record.
42 I also accept that the principles enunciated in R v Verdins are relevant, particularly on the basis of the report from Dr Cunningham. Accordingly, sentencing considerations such as just punishment, general deterrence, and specific deterrence, should all be moderated to some degree for such allowance.
43 Furthermore, I do consider that, if incarcerated, any period of imprisonment will weigh more heavily upon you than it would upon a person of normal psychological health, with significant risk of deterioration.
44 I also consider that the following matters are also relevant as mitigating circumstances:
(a)Although your plea of guilty in relation to the offences was very late in the piece, such plea did have some utilitarian value, in that it saved the cost and time of a trial. I should add that I consider that you have shown little if any remorse for your offending, which you seemed to have little recall of when reporting to doctors.
(b)I also consider that the period of delay from the commission of the offences to this date is lengthy. It is unclear why this has occurred. I accept that such delay was not brought about by any action on your part. I refer to Arthars v R; Plater v R [2013] VSCA 258, wherein the Court of Appeal set out the basis of the justification for taking “delay” into account as a mitigating factor. In essence, the two considerations are of rehabilitation and fairness.
45 In the circumstances of this matter, these offences have been “hanging over” your head for a lengthy period of time, leaving you in a “state of suspense” as to what will happen to you. Similarly, I also accept that the concept of “totality” applies, given that you were sentenced to a period of incarceration in New South Wales for offending immediately prior to the subject offending in respect to drug-related matters at the request of Bassam Hamzy. I accept the submission of your counsel that the totality principles, in the circumstances of this matter, require that the total sentence remains just and appropriate to the whole of the offending at and around that time.
46 After taking all these matters into account, I have come to the view that a period of immediate imprisonment is not an appropriate sentencing disposition. However, I am concerned that although you have a positive attitude to remaining out of prison, trying to seek work, and avoiding situations where you are exposed to criminal activity, you are unemployed, and seemingly have been for large periods of time, with difficulties obtaining work. Although I accept that a significant part of such problem has resulted from your mental impairment, it is important, I believe, that, in order to help you avoid your past ways, you should be placed on a community corrections order and be subject to the recommendations of the justice plan which has been devised for you.
47 I propose to convict you of each offence. I consider that, pursuant to s.40 of the Sentencing Act 1991, the two offences are of the same or a similar character, and accordingly I propose to sentence you, in relation to both offences, to one community correction order for a period of 15 months.
48 Such order will have attached the legislative conditions that:
(a)You must not commit any offence, whether in or outside Victoria, which is punishable by imprisonment;
(b)You must comply with any obligation or requirement prescribed by the Regulations;
(c)You must report to and receive visits from the Secretary to the Department of Justice during the period of the order;
(d)You must not leave Victoria, except with the permission, either generally or in relation to a particular case, of the Secretary to the Department of Justice; and
(e)You must notify the Secretary to the Department of Justice of any change of address or employment within two (2) clear working days after the change.
49 I also intend to order that the following conditions be part of your community correction order, consistent with the recommendation made by the Department of Community Service, that is, community work, treatment and rehabilitation in relation to mental health, supervision, and the recommendations made to in the justice plan undertaken on your behalf.
50 Please be upstanding.
(i) In relation to Charges 1 and 2, you are convicted of each offence and sentenced to a community correction order for a period of 15 months. You are to present yourself at Broadmeadows Community Corrections Office within two (2) days of this date to commence such order (by 1 May 2015).
(ii) Pursuant to s.48C of the Sentencing Act1991 you are to perform unpaid community work for a period of 75 hours.
(iii) Pursuant to s48D(3)(e) of the Sentencing Act1991 you are to undergo any mental health assessment and treatment, that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility.
(iv) Pursuant to s48E of the Sentencing Act1991, you are to be supervised, monitored and managed as directed by the Secretary to the Department of Justice.
(v) Pursuant to s.80 of the Sentencing Act1991, you are to participate in the services specified in the justice plan prepared under s80(3)(c) of the Sentencing Act1991.
51 Pursuant to s.6AAA of the Sentencing Act1991, I declare that, save for your plea of guilty in relation to the offences, I would have ordered a period of 12 months’ imprisonment, of which six months to be partially suspended pursuant to the then s.27(1) of the Sentencing Act1991 for an operational period of 12 months.
52 Mr Chkhaidem, your barrister will no doubt explain everything I have said in more detail. The upshot is, you are not going to prison, but you must abide by the Community Corrections order and in particular, part of that order hopefully is designed to help you with your literacy problems and you obtaining employment. It is so important I believe, that you try and get a job, if by getting a job, will hopefully keep you away from your past habits.
53 You have told everybody that you have a very happy family relationship and it is a matter for you to try and keep it that way. If you breach this order and you are brought back to me, you run a significant risk that you will be sent to prison and I will re-sentence you. So, it is really a matter for you now to try and sort yourself out and try and get this job and follow these conditions in the order. Do you understand?
54 OFFENDER: Yes I do, Your Honour.
55 HIS HONOUR: Yes, very well. The papers will have to be signed. Anything you want to - - -
56 MR McQUILLAN: No, no Your Honour, no.
57 MR HARRIS: No, Your Honour.
58 HIS HONOUR: Very well. To those in the part-heard, we'll just adjourn for five minutes while the papers are being signed and then we'll continue in the part-heard.
59 MR McQUILLAN: As Your Honour pleases.
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