Director of Public Prosecutions v Kamil
[2024] VCC 2143
•29 August 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
Case No. CR-21-02420; CR-24-00129; CR-24-00134
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUSSEIN KAMIL and MOHAMED HAMMOUDE |
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JUDGE: | KARAPANAGIOTIDIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 July 2024 |
DATE OF SENTENCE: | 29 August 2024 |
CASE MAY BE CITED AS: | DPP v Kamil & Anor |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2143 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – sentencing.
Catchwords: intentionally cause injury – theft – commit indictable offence on bail –
trespass – contravention of community corrections order – youthful
offenders – mental health – prospects of rehabilitation.
Legislation Cited: ss5; 6AAA of the Sentencing Act 1991 (Vic)
Cases Cited: R v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] VSCA 372;
Luu v The Queen [2018] VSCA 92.
Sentence: Kamil: Three years, five months, and seven days imprisonment.
Hammoude: Three years and two months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Kelly | Office of Public Prosecutions |
For Offender Kamil | Mr W. Barker | Angus Cameron Lawyers |
For Offender Hammoude | Mr R. Backwell | Greg Thomas Barrister & Solicitor |
HER HONOUR:
1Mr Hammoude and Mr Kamil, the charges you face arise from two incidents. Mr Mohamed Hammoude, you were involved in both incidents, and you, Mr Hussein Kamil, were involved only in the incident on 30 July 2023. You were both involved in the theft of motor vehicle.
2Mr Hammoude, you have pleaded guilty to four charges of intentionally cause injury and two charges of theft. You have also pleaded guilty and consented to this court hearing, two summary charges of commit indictable offence on bail and trespass.
3You, Mr Kamil, have pleaded guilty to three charges of intentionally cause injury and one charge of theft. You were also charged with and admit to breaching a community corrections order imposed by this court on 24 June 2022.
4At the time of the offending, you, Mr Hammoude, were 23 years of age and you, Mr Kamil, were 22.
Circumstances of offending
5The circumstances of your offending are outlined in the prosecution opening of 27 May 2024, marked as Exhibit A, and it represents the basis upon which I sentence you both.
6On 20 June 2023 a residential burglary occurred where unknown offenders stole keys and two vehicles from the address, a 2017 silver Mercedes Benz station wagon and a 2014 white Range Rover sports station wagon.
Theft of motor vehicle
7At approximately 5:45AM on 29 July 2023, CCTV from your home address, Mr Kamil, captured the aforementioned stolen Mercedes Benz in your driveway for a period of time. Later that night you and Mr Hammoude travelled together through the northern suburbs of Melbourne and were seen together in the stolen Mercedes (charge 1 – theft).
Incident – 29 July 2023, Amarina Close, Meadow Heights (Hammoude – Charges 2 & 3)
8During the evening of 29 July 2023, Bryson McKenna, Muslum Gucum and Can Sahin were at McKenna's address in Amarina Close, Meadow Heights.
9At around 9:05PM, you, Mr Hammoude, with other unknown offenders travelled to this area in the silver Mercedez, ultimately reversing into the driveway at that address at 9:15PM. Mr Gucum was coming out of the front door of the address to get cigarettes from his car and saw you, Mr Hammoude, and the unknown offenders approaching the front door. He immediately went back inside and closed the door, attempting to lock it. The locking mechanism would not engage so he held the door shut to prevent it from being opened.
10He called out to the others in the house to alert them. You, Mr Hammoude, kicked at the front door, however, you were unable to obtain access due to Mr Gucum blocking it. You then discharged a firearm through the front door, impacting Mr Gucum on the front of the knee.
11Mr Hammoude, that represents Charge 2 for you, intentionally cause injury.
12You, Mr Hammoude, then trespassed into the house. That constitutes the summary offence of trespass.
13Mr Gucum retreated to the bathroom, and Mr Sahin and Mr McKenna to a bedroom. Mr Hammoude, you then discharged the firearm through the bathroom and a rear bedroom door. No person was hit although the shots went through to where several people were seeking refuge. Mr Gucum opened the bathroom window and climbed out to escape, fleeing to a nearby house.
14I note, as confirmed today, that this conduct is not the subject of a charge.
15Whilst in the house you stole the following items:
(a)Mr McKenna's Louis Vuitton wallet containing his Commonwealth bank card;
(b)A concession card and a five dollar note;
(c)Another empty wallet of his; and
(d)Mr Gucum's Samsung mobile telephone.
16That represents the rolled-up charge of theft, Charge 3 on the indictment.
17You, Mr Hammoude, then returned to the silver Mercedes and left the scene. Police were called and arrived soon after and Mr Gucum was conveyed to hospital where he underwent surgery and had a projectile removed from his knee.
Incident – 30 July 2023, View Street, Glenroy (HAMMOUDE – Charges 4-6, KAMIL – Charges 2-4)
18On the evening of 29 through to 30 July, Hazem Taha, Jimmy Tomar and Edwin Barrack were at Mr Taha's residence at View Street, Glenroy. They were in the loungeroom of the property.
19At approximately 12:30AM, you, Mr Kamil and Mr Hammoude attended at the address and knocked on the door. Mr Taha answered and the three of you began arguing at the door. Mr Tomar came to see what was happening. He was standing behind Mr Taha when you, Mr Kamil, discharged a firearm towards them which went through the front door and through Mr Taha's right upper leg and into Mr Tomar's right upper leg.
20This constitutes for you, Mr Kamil, Charges 2 and 3, and you, Mr Hammoude, Charges 4 and 5.
21Mr Taha, in fear, immediately closed the front door. You, Mr Kamil, then began kicking at the front door causing Mr Barrack to approach the door from inside, opening it. As he did, he saw you standing there with a firearm. He immediately grabbed the firearm to stop it from being pointed at him and elbowed you, Mr Kamil, in the face. A struggle ensued causing you to fall to the ground at the bottom of the front stairs while you both wrestled for the gun, during which the firearm discharged next to Mr Barrack's face causing gunshot residue to go into his left eye. I note, as confirmed today, that this conduct is not the subject of a charge.
22The fight for the firearm continued in the front yard before you, Mr Hammoude, arrived from behind and stabbed Mr Barrack in the back.
23Mr Hammoude, that constitutes Charge 6 on your indictment. Mr Kamil, Charge 4.
24Mr Taha then chased you away and in doing so sustained a small cut to his hand. Mr Barrack managed to overpower you, Mr Kamil, and take the gun from you. In fear for his safety he pointed the gun at you and pulled the trigger, however, the gun did not discharge for an unknown reason. Mr Barrack then observed Mr Hammoude walking back towards Mr Taha, holding a knife. He threw the firearm at you, Mr Hammoude, and chased you down the street. While chasing you Mr Barrack realised that he had been stabbed and so returned to the house and then drove himself to the Northern Hospital in Epping for treatment.
25Emergency services received two anonymous calls about people fighting in the street at the location.
26Mr Taha continued to chase and hit you, Mr Kamil, into a neighbouring front porch, which continued until the resident of the address heard the noise, came out to investigate what was going on. He observed you on his front porch and Mr Taha leaving the address.
27Police arrived at approximately 12:48AM and you, Mr Kamil, were found and arrested nearby. You had sustained a puncture wound to the lower back and several facial injuries. You were transported to the Royal Melbourne Hospital in company with police. Police established a crime scene and commenced an investigation. That included the use of ballistic examination, fingerprint examination and scene photographs.
28While police were processing the crime scene, you, Mr Hammoude, emerged from Roy Street claiming that you had been attacked by a machete. You collapsed on the nature strip and were conveyed to The Alfred Hospital. Upon arrival you were unable to be assessed due to your agitated state and were discharged and then arrested. On arrest police found on you items stolen from the Marina Close address the night before.
29You, Mr Hammoude, were interviewed by police, released pending further enquiries and then re-arrested on 1 August 2023 and interviewed.
30You, Mr Kamil, were released from hospital on 31 July 2023, arrested and interviewed by police. You stated you did not recall what had happened save for seeking help for your injuries. You were charged and remanded in custody.
Injuries
31Mr Taha was conveyed to the Footscray Hospital with a single gunshot wound and underwent a series of procedures on his thigh.
32Mr Tomar self-presented at the Footscray Hospital. He had a single gunshot wound to the right thigh, a projectile was still in his leg and it was subsequently removed.
33Mr Barrack was treated at the Northern Hospital for the puncture wound in his back and police were notified of his attendance.
34The stolen silver Mercedez was located and recovered on 2 August 2023 at a factory in Thomastown.
Victim impact statement
35Hazem Taha has provided a victim impact statement in which he describes the profound impact of your offending on him and his family. It has impacted and eroded his sense of safety and wellbeing. He refers to the physical pain he has endured and the emotional trauma. He states: 'Being shot in the leg has left me physically, emotionally and mentally scarred', but refers to his determination to regain his independence and overcome his fears. I take into account the impact of your offending on your victim.
Gravity of offending
36Mr Hammoude and Mr Kamil, the offending is plainly serious, involving as it does the discharge of the firearm at a close range at your victims' homes.
37As your counsel, Mr Hammoude, stated, the consequences could have significantly been worse. To fire a loaded shotgun in the direction of any person, knowing that firing the shot will likely cause injury, is very serious. As the prosecution also submit this type of offending is very serious with accompanying risks to the public given the circumstances.
38You, Mr Kamil, are charged with the second incident only. You discharged the firearm once, intentionally, which struck two victims. I take into account that the act common to both offences was the discharge of the firearm.
39There are two different victims to your offending which needs to be reflected, but there is clear overlap which also must be given practical effect by permitting significant concurrency between the sentences on each charge[1].
[1] See Phillips v The Queen; Liszczak v The Queen [2017] VSCA 313.
40In respect of these particular charges, while I note and take into account, Mr Hammoude, that you did not possess or use the gun on this occasion yourself, you acted in complicity with Mr Kamil and are liable for the injuries sustained.
41This can also be said in relation to you, Mr Kamil, in respect of Charge 4, that is the intentional cause injury to Mr Barrack.
42Aside from the premeditation that is necessarily implied by the carrying of weapons, I accept that there is no other evidence of pre-planning in respect of these offences.
43I take into account the injuries sustained. Both Mr Taha and Mr Tomar presented with a single gunshot wound, the projectile having to be surgically removed from Mr Tomar's leg. Mr Barrack was treated at hospital for a puncture wound in his back. I have already referred to the injury to Mr Gucum.
44I note also in relation to you, Mr Kamil, that you received multiple injuries from the incident, including a stab wound, and you were admitted to hospital overnight.
45In respect of the theft the subject of Charge 3 for you, Mr Hammoude, this is a rolled-up count and I take into account the full circumstances of your offending. In relation to the trespass charge, I consider this to be a serious example given the circumstances of your entry.
46At the time of the offending, you, Mr Hammoude, were on bail and a community corrections order, and you, Mr Kamil, were on a community corrections order. You both report having consumed significant quantities of drugs at the time of the offending, which, of course, is no excuse.
47In respect of you, Mr Hammoude, as I consider that your offending is aggravated by being on bail at the time, that is during both 29 and 30 July offending, I have been careful not to doubly punish you or aggravate the sentence imposed by reference to the serious nature of the offence which was committed on bail.
Plea of guilty
48You both entered early pleas of guilty, which entitle you to an important sentencing discount. Your pleas of guilty have utilitarian value and have saved the cost of a trial, or in your case, Mr Hammoude, potentially two trials. Your pleas of guilty indicate remorse and your willingness to facilitate the course of justice and assume responsibility for your offending.
Personal circumstances
Hammoude
49As to your personal circumstances, Mr Hammoude, your circumstances were canvassed by your counsel, Mr Backwell, and are outlined in the report of psychologist, Ms Gina Cidoni, of 9 July 2024.
50In summary, you turned 24 in July this year. Your parents are Lebanese and you were raised in Broadmeadows. They separated when you were seven years of age and your father left without further contact or support. When you were six you witnessed your mother and sister being struck by a car. Both were seriously injured requiring hospitalisation, with your mother sustaining a brain injury. This was a significantly gruesome and traumatic event for you to have witnessed as a child with a lasting impact.
51Your childhood was marked by financial difficulties, exacerbated by your mother's accident, resulting in frequent moves and evictions.
52You ended up leaving school early in Year 9 to support your family financially. Your mother currently lives in Greenvale with your older brother and younger sister, who helps support her due to her disability. You also have two older half-siblings.
53After leaving school you worked at a car wash in Roxborough Park, full-time for two years. Further, you have worked in a mechanics workshop in carpentry steel framing, and you were concreting before your remand in mid-2023.
54Ms Cidoni notes that you currently experience moderate depression (8/10) and anxiety (7/10) for which you are prescribed antidepressants whilst in prison. You told her that you thought you might have ADHD due to your past history of impulsive and reckless behaviour, or restless behaviour, though I note that on testing your results were not consistent with such a diagnosis (at [72]).
55At the age of 17 you started drinking and by the age of 19 this escalated to half a bottle of whisky daily. You also started using cannabis. At 18 you tried MDMA and began using unprescribed Xanax. At 19 you started with cocaine. You attribute your introduction to substances to peer influence and the stress of coping with home and anxiety from a young age.
56Ms Cidoni reflects on your history as follows at paragraph 100:
'His upbringing in an environment of financial instability, frequent evictions, trauma, parental separation and abandonment at a young age, created a foundation of stress and emotional turmoil. These early life adversities disrupted his emotional development and coping mechanisms, predisposing him to seek solace in substance use as a means of managing anxiety. The instability and trauma he has experienced likely exacerbated his vulnerabilities to mood disorders, they impaired his ability to regulate emotions effectively, ultimately influencing his involvement in aggressive and impulsive behaviours leading to the offences.'
57You have a relevant prior criminal history commencing in the Children's Court for matters which include robbery, affray, drug possession and traffic violations. Your last offence was in 2023 for charges of affray, fail to answer bail and intentionally damage property, which led to the imposition of a 12-month community corrections order.
58I note that this period on remand does represent your first time in prison.
Kamil
59Mr Kamil, your personal circumstances were canvassed by your counsel, Mr Barker, and are also outlined in the 2022 psychological report of Ms Cidoni and the recent neuropsychological report of Dr Evrim March.
60This court also sentenced you on 24 June 2022 and is therefore familiar with your general circumstances.
61In brief summary, your upbringing was disrupted. You lost your mother at a young age, school attendance was interrupted due to bullying, truancy and ADHD. You experienced domestic violence, were exposed to alcohol and drug use through your peer group and have experienced trauma.
62Your father is Turkish and your mother was Spanish. She died in 2008 from breast cancer. You have a half-brother from your mother's side with whom you have no contact and two full brothers and one full sister.
63You grew up in Meadow Heights. Following the death of your mother you struggled. Your father found it very difficult to deal with all of the children and consequently you felt unsupported and neglected. When you were in Year 7 your father moved to Queensland and you stayed with your grandparents from time to time. At around the age of 17 you joined your father and lived with him for two years, which was a positive experience for you. After returning to Melbourne you lived with your grandmother and you were very close to her.
64You attended school up until Year 9 but struggled. You were diagnosed with Attention Deficit Hyperactivity Disorder for which you were medicated. Your childhood diagnosis of ADHD is well documented, along with your significant functional difficulties during early school years (at [36]). You were bullied and always in trouble at school until you stopped going.
65In terms of employment, you briefly worked in Queensland while living with your father and reflect upon it positively. You have had brief periods otherwise of working with an electrician and a carpenter.
66At the age of 14 to 15 you started smoking cannabis and then at the age of 16 to 17 you started to drink. You began using cocaine and Valium and at the age of 18 started regularly using methylamphetamine and also GHB for several months.
67You have experienced a range of traumatic events. You disclosed to Dr March having experienced abuse when you were around 15 or 16 in youth detention, which is distressing for you and only something that you have started to discuss (at [18], [19]). You also report having been kidnapped, torched and beaten with a metal pole when you were 18.
68Your prior criminal history commenced in the Children's Court (including interstate matters) involving drugs, dishonesty and driving matters. Your first appearance in the Magistrates Court was on 4 December 2019 when you were sentenced to 102 days' imprisonment, wholly reckoned as served, for charges including shop theft and contravening bail. Next you received a monetary penalty and then on 12 April 2022 you were sentenced to 45 days' imprisonment, wholly reckoned as served, for mainly driving and drug matters.
69On 24 June 2022 you pleaded guilty in this court to a charge of home invasion, four counts of theft, six counts of burglary and handle stolen goods. On the home invasion and theft you were sentenced to 486 days' imprisonment and the remaining charges you were sentenced to 90 days, plus an 18 month CCO with a Justice plan. Of the 90 days, 30 days was ordered to be served cumulatively, which totalled a period of imprisonment of 516 days. It is this Corrections order that is also now the subject of breach proceedings, which I will return to in a brief moment.
70On 8 May 2023 you were sentenced to seven months' imprisonment and placed on an 18-month CCO for a consolidation of matters that I note pre-dated the imposition of the County Court sentence that I have just referred to. On 1 June 2023 you were placed on another CCO for driving, dishonesty and bail offences.
Breach Report
71The report of 4 August 2023 outlines your compliance with the order that is before the court on a breach. The contravention is alleged by way of non-compliance and further offending. You breached the supervision condition on two occasions and the treatment and rehabilitation on one occasion.
72You were also convicted of seven charges of further offending during the duration of the order at the Broadmeadows Magistrates Court on 1 June 2023. The CCO was suspended for periods of time due to your ongoing remand and you were released on 24 October 2022. You attended your induction appointment and a second supervision appointment on 2 November 2022. You demonstrated a degree of insight into your offending, acknowledging the influence of substance misuse and negative peers.
73You then resumed contact with Corrections on your further release from custody, attending with your father. You expressed an interest to relocate to Queensland to live with him. It was agreed that once you had completed your mandated hours that you could apply for a transfer of your order. While you missed some further appointments without an excuse, you did report for supervision on a weekly basis and attended three further sessions.
74On 30 July 2023 the service was notified that you had been arrested again and placed in custody, and you have not complied with the order since this date.
75In respect of treatment for drug and alcohol use, you participated in a total of two ACSO assessments in custody. In the community you were wait-listed and there was an attempt to broker bridging supports on your behalf but you relapsed into drug use and then, as already noted, were subsequently placed in custody again.
76You attended for two urine analysis screens, failing to attend on one occasion, and both times drugs were detected in your system.
77Your subsequent placements on remand disrupted the ability to implement mental health supports. There was also a Justice plan condition on your order and you were linked with Disability Services who offered disability service co-ordination.
78You attended judicial monitoring on one occasion. Your subsequent remand and contravention proceedings interrupted further listings.
79The author concludes that while you were initially expressing motivation, your engagement and behaviour rapidly deteriorated, culminating in your arrest and remand. I do note that you did attempt to re-engage with the order after your first release from remand and you were expressing a desire to move to Queensland away from negative associations. The recommendation is that the order is cancelled and that you are re-sentenced.
Other factors
Youth
80Given you, Mr Hammoude, were 23 years of age at the time of your offending, and you, Mr Kamil, were 22 years of age, both your counsel rely upon your youth and the well-established principles[2].
[2]R v Mills [1998] 4 VR 235.
81I accept that your youth is a relevant and important consideration. Of course, as the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of an offender's youth (at [44])[3].
[3]Azzopardi v The Queen [2011] VSCA 372.
82As already noted, this is serious offending. Nevertheless, your youth remains a relevant mitigating circumstance to be considered at all stages, requiring a degree of leniency that would not be extended to a mature offender[4]. In particular, while the deterrent and denunciatory purposes must be appropriately reflected, the sentence imposed must also reflect your relative youth and promote your rehabilitation.
[4] Ibid.
83In your case, Mr Hammoude, Ms Cidoni considered that you 'seemed young for [your] age in terms of expression.' Your cognitive functioning indicated challenges in verbal reasoning, attention and mental control, significantly impacting your daily life. Ms Cidoni states: 'His young age played a significant role in shaping the nature of his offending behaviours', and she refers to the immaturity of your neurocognitive processes (at [98]).
84In your case, Mr Kamil, Dr March also refers to your youth, combined with your vulnerable personality styles and its effect.
85Though a couple of years old now, Ms Cidoni in her report also referred to your young age and the 'significant difference in the maturity of young adults in their late adolescence and early adulthood age 18 to 25 compared to adult offenders.'
Mental health
86In both of your cases, neither of your counsel submitted that the principles of Verdins were enlivened or enlivened 'in any meaningful way.' However, they both referred to and relied upon your mental health and identified vulnerabilities as matters properly relevant to the instinctive synthesis.
Hammoude
87In your case, Mr Hammoude, Ms Cidoni undertook psychological testing which indicated that you endorse severe levels of psychological distress, depressed mood and anxiety. Your scores were suggestive of a diagnosis of bipolar disorder and you also presented within the severe range for PTSD symptoms (see also [91]-[94]).
88At paragraph 95 she states:
'Bipolar 2 disorder contributes to his mood instability, impulsivity and periods of heightened energy that can exacerbate risk-taking behaviours and substance use. PTSD symptoms started from significant trauma in childhood and led to emotional dysregulation, intrusive memories and avoidance behaviours that affect his relationships and daily activities, substance use worsens, mood symptoms, and further impairs cognitive function, decision-making and social interactions.'
89She makes the point also that clearly your substance-affected state played a critical role in the offences (at [96]) and considers that this, along with the conditions you suffer from, collectively impaired your decision-making abilities and contributed to the escalation of aggressive behaviours (at [97]).
90Further, she states that:
'The prison environment will intensify [your] vulnerabilities. [Your] young age means you are still developing emotionally and psychologically and you are particularly susceptible to negative influences which can reinforce maladaptive behaviours and coping mechanisms, further entrenching patterns of offending.'
Kamil
91Mr Kamil, as already noted, you have a documented history of childhood ADHD and functional difficulties. In recent times you have been reviewed in custody with approval to commence ADHD medication.
92The psychological report of Ms Cidoni of 31 March 2022 reported intellect at the 'intellectual disability range.' Around that time your mood was described as low and affect as flat with anxiety symptoms.
93Dr March assessed you over the course of three extensive sessions. You engaged well and appeared to show good effort. Your level of premorbid intellect was estimated to fall around the low-average range. On current assessment your performed much better in certain components of intellect testing and these improved performances could not be explained by practice effects, thus indicating the role of better co-operation and effort and more stable mood on this occasion. In simple terms, she considers that you under-performed during the 2022 assessment, not engaging well possibly due to a lower mental state at the time (at [85]).
94Based on current psychometric test performances you were assessed as not having an intellectual disability. Of particular note, you had good visual special skills of intellect and adequate to good verbal comprehension reasoning skills of intellect. You have limitations in attention working memory around the borderline range. General ability index fell comfortably within the low average to average range, indicating that you have an adequate level of intellect. Your current level of intellect broadly falls around the low average range, well above the intellectual disability range (at [70]).
95Further, you demonstrated a range of intact cognitive skills in areas assessed beyond intellect which generally placed you in around the average of your age group. Notable cognitive impulsivity was also referred to (at [72]).
96Dr March also considers that your background and psychosocial factors, as already canvassed, 'increases the risk of developing mental illness and engaging in substance use disorder, thus increasing the risk of offending behaviour.' (at [74]).
97Dr March identifies the following conditions: persisting ADHD; paranoid ideation with significant symptoms, currently in remission; alcohol use disorder; binge drinking, in remission; drug use disorder; polysubstance in remission. While she notes mild symptoms of depression and anxiety, they were not sufficient for a diagnosis (at [76]).
98Leading up to and prior to your offending, Dr March observes (at [79]):
'Mr Kamil appears to have paranoid symptoms and heightened anxiety in relation to traumatic events he experienced. Further, he was not treated for ADHD, this likely contributed to reduced emotional regulation. The mental health symptoms contributed to and maintained alcohol and drug use behaviour which was likely serving to dampen down paranoid symptoms.'
99In many respects the prison environment appears to have stabilised your mental health (at [81]). Dr March, however, also states at paragraph [83]:
At the same time, this is a young man with significant unresolved trauma that received no psychological work due to a lack of trust in others. He has a vulnerable personality style and poor sense of self, not uncommon in people with significant childhood adversity. In this respect a prison sentence can weigh more heavily on him than it would a person of normal mental health. He will be prone to depressive symptoms, and if untreated, decline in mental health may accompany increased paranoid ideation.'
100For both of you, Mr Hammoude and Mr Kamil, I take the matters canvassed in the respective reports into account in sentencing you.
Prospects of rehabilitation
Hammoude
101Mr Hammoude, your counsel submits that given your age and progress in custody your prospects of rehabilitation are reasonable, if supported.
102I accept that your prospects will be enhanced if you receive targeted treatment and support. In assessing your prospects I take into account your prior criminal history and that you were on bail and a CCO at the time of this offending.
103This is your first experience of custody and I do accept it has been salutary. In custody you have engaged in yard duties, gardening and painting walls and you have abstained from substances and participated in drug and alcohol programs. You are presently committed to changing your life, telling Ms Cidoni: 'drugs and alcohol I won't use again. This sentence has changed me, and I feel shit about it.'
104The challenge for you, Mr Hammoude, will be to maintain this commitment on your release.
105Ms Cidoni conducted a risk assessment and concluded that overall you present with moderate to high risk of re-offending (at [85]). In this assessment she factors in your prior criminal history, substance abuse, impulsivity and limited insight.
106Protective factors mitigating your risk include your engagement in prison-based rehabilitation programs, family support and your express commitment to abstaining from substance use, avoiding peers, or negative peers, and participating in treatment. Also, she considers that there is:
'a potential for risk reduction through targeted interventions addressing substance abuse, enhancing coping skills, severing ties with unhelpful peers and promoting stable living conditions post release. Such interventions could significantly mitigate your risk of re-offending.'
Kamil
107Mr Kamil, your counsel submits that you have some prospects for rehabilitation, and I do accept that they are not extinguished but they are guarded. You have been given a number of opportunities on rehabilitative orders in the recent past after having served varying custodial terms, and unfortunately you have relapsed and you have re-offended.
108You are still young, though, and I take into account that you are currently participating in programs in custody and making some effort. You play sports and attend the gym, participate in the art program and attend the adapt program. You have also attended 12 courses such as Learning for Life and Healthy Relationships and received a super certificate and have applied for a billet position.
109I take into account that you have family support and accommodation available on your release and I have had regard to the previous testimonials of your family where they speak of your capacity and achievements.
110You told Dr March that you want to 'start fresh' and you want to take your sister with you and go to stay with your dad in Queensland. Of course, you have expressed this desire before and the challenge for you, too, Mr Kamil, will be to maintain this commitment for change upon your release.
111Dr March notes some of your specific limitations but considers that your otherwise good cognitive skills improve your prospects of rehabilitation as you have the intellect and you have the thinking abilities to understand and reason with new information (at [86]). A further positive factor is your reasonably strong sense of connectedness to your family and 'your capacity for empathy.' She considers that you have some capacity to benefit from psychological sessions in custody and/or in the community (at [89]).
Parity
112As discussed with counsel today, I have also had regard to the parity principle between the two of you and it requires that there be consistency in the sentences imposed upon co-offenders unless there are such differences in their roles in the offending or their personal circumstances that warrant disparity in sentences.
113I have given this close consideration. Overall, there are similarities in your general circumstances, however, there are also some important differences that will be reflected.
114First, importantly, Mr Hammoude, you face a separate charge, an incident of intentionally cause injury. However, your prior history is not as extensive, as I assess it, as Mr Kamil's. Your rehabilitative prospects may be viewed as more favourable, and this will represent your first custodial sentence. Also, your role in the shooting the subject of Charges 4 and 5 was lesser than Mr Kamil as you did not possess or use the firearm yourself, though, clearly, as I have already stated, you were complicit in the offending and generally an active participant in what occurred. Mr Kamil, you also face a breach of a community corrections order.
Sentencing principles
115Deterrence, both general and specific, are relevant sentencing purposes, along with punishment, denunciation and protection of the community.
116As I have already indicated, the punitive denunciatory and protective purposes of sentencing are important given the nature of this offending and the use of firearms. I do also regard your relative youth and the promotion of your rehabilitation as important considerations in the instinctive synthesis.
117I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case. I have also taken into account the maximum penalties for each charge. I have had regard to the sentencing landscape for charges of this nature, particularly cases of intentionally cause injury where firearms have been used. Of course, no two cases are the same but these cases have offered some guidance.
118As sensibly agreed between all parties, given the gravity of your offending, the only just and appropriate sentence in both of your cases is a term of imprisonment attracting a non-parole period.
119I have taken into account the principles of proportionality, parsimony and totality. Totality I consider to be of particular importance given the overlap between the offending, as I have already referred to, the temporal connection between the charges and the need to avoid double punishment. The sentence needs to be proportionate to the total criminality and to satisfy all sentencing objectives applicable to the entirety of your criminal conduct. The non-parole period I have set in each case is intended to reflect the relevant principles, including denunciation, while also giving appropriate weight to your relative young ages and the promotion of your rehabilitation.
Sentence
120Synthesising all relevant matters, you are sentenced as follows:
Hammoude
121Mr Hammoude, I am going to commence with you first.
122On Charge 1, that is the theft, you are convicted and sentenced to five months' imprisonment.
123On Charge 2, the intentionally cause injury, you are convicted and sentenced to two years and two months' imprisonment.
124On Charge 3, which is the rolled-up count of theft, you are convicted and sentenced to six months' imprisonment.
125On Charge 4, you are convicted and sentenced to 22 months' imprisonment.
126On Charge 5, you are convicted and sentenced to 22 months' imprisonment.
127On Charge 6, you are convicted and sentenced to 17 months' imprisonment.
128On the summary charge – counsel, just check that I have this right – 18 is the commit offence on bail, and I know that one of them was amended – 14 days' imprisonment. Forty-two is also a commit offence on bail, 14 days' imprisonment. The trespass, one month imprisonment.
129Orders for cumulation are as follows:
130Charge 2 is the base sentence. Charge 3, one month cumulation. Charge 4, eight months' cumulation. Charge 5, three months' cumulation. Charge 6, three months' cumulation.
131HER HONOUR: I am cumulating seven days on the trespass. That then should total three years, five months and seven days' imprisonment.
132HER HONOUR: I am setting a non-parole period of two years. Pursuant to s18 I declare that you have served 394 days.
133Pursuant to s6AAA, I can indicate that had you not entered a plea of guilty to these charges I would have sentenced you to some five years and eight months' imprisonment with a non-parole period of three years and nine months.
134I will come to ancillary orders shortly but I might just deal with Mr Kamil's sentence.
Kamil
135Mr Kamil, in your case on Charge 1, theft, I convict and sentence you to five months' imprisonment.
136Charge 2, you are convicted and sentenced to two years and three months' imprisonment.
137Charge 3, you are convicted and sentenced to two years and three months' imprisonment.
138And Charge 4 you are convicted and sentenced to 15 months' imprisonment.
139Charge 2 is the base sentence. I cumulate five months on Charge 3 and I cumulate three months on Charge 4.
140That comes and arrives to a total of two years and 11 months.
141On the Corrections order breach, I consider it appropriate to cancel the order and re-sentence you on the original charges.
142In this respect I have considered the circumstances and gravity of the offending as outlined in the Court's reasons on 24 June 2022. The burglaries were largely in company and committed on residential premises, and although there was some variation items of significant value were taken. The offending was very proximate in time, Charges 1 and 2 occurring on 25 January 2020, Charges 5 through to 12 on 22 February 2020. It took place within a confined period and can properly be seen as a course of conduct, such that I consider it appropriate to sentence you to an aggregate term.
143I pause there; do counsel wish to be heard in respect of that.
144MR BARKER: No, Your Honour.
145HER HONOUR: I take into account all relevant circumstances canvassed in the earlier sentence, including the delay in your case, your youth at the time, you had just turned 21, and the more onerous conditions in custody that arose because of the Covid pandemic.
146I have also had regard to the parity principle but do not consider that there is a proper basis for disparity between sentences given the different personal circumstances of you and your co-accused and their assessed prospects of rehabilitation at the time of sentence.
147Although I am only required to sentence you on these particular charges, I do also take into account as an important factor that you served and were sentenced to 16 months' imprisonment, that is 486 days, at the same time the CCO was imposed. This was for home invasion and theft which also occurred on 25 January 2020.
148Totality is an important consideration relevant given the nature of the original charges and also to be assessed against the further sentence that I have just imposed today.
149In addition, I take into account your plea of guilty and your preparedness to admit the community corrections order breach, your efforts, albeit limited, they were made on the order, and its designed, while punitive, was largely therapeutic given you had just served a significant period in custody.
150All these factors, of course, meet to substantially moderate the sentence I am about to impose.
151On the breach of community corrections order, you are sentenced as follows:
152I find the charge proven and I sentence you to seven days in respect of the breach of imprisonment.
153On Charges 1,2,5,6,7,8,9,10,11 and 12, they are the ones that are before me, you are convicted and sentenced to an aggregate term of 10 months.
154In line with the authority in Luu's case, the 90 days is to be reckoned as pre-sentence detention in relation to this matter[5].
[5]Luu v The Queen [2018] VSCA 92.
155I cumulate three months of this sentence upon the other sentences imposed this day and so it follows that there is a global total effective sentence of three years and two months imprisonment.
156In relation to the global effective sentence, you have served a total, as we have confirmed today, of 485 days, which is 395 days plus 90 days. The seven days imposed for the breach offence will be served concurrently with all other sentences.
157In your case, Mr Kamil, taking into account the variety of factors that I have already referred to, on the three years and two months' imprisonment I set a non-parole period of two years.
158Had you not entered a plea of guilty, I would have sentenced you to five years and five months' imprisonment with a non-parole period of three years and 10 months.
159Pursuant to s18 I make the declaration that you have served 485 days as pre-sentence detention.
160I am just going to pause there for one brief moment, counsel. Do those sentences, Mr Barker – the maths isn't particularly complicated – do they arrive at the sentence that I have indicated.
161MR BARKER: Yes, but could I just ask – make a query. I don't believe there's any issue but I just raise it right now or wrongly on the topic. Your Honour mentioned pre-sentence detention at various times, and I think you mentioned it – obviously not as declarations multiple times but Your Honour referred to Luu's case and I was obviously hurriedly typing, can I just confirm the way that Your Honour's making the orders so that I understand it correctly, that's all.
162Your Honour mentioned 90 days pre-sentence detention when going through the actual sentence for the contravention matter ‑ ‑ ‑
163HER HONOUR: Yes.
164MR BARKER: However, that's not where Your Honour declared it, am I right ‑ ‑ ‑
165HER HONOUR: No, no, I didn't declare it there.
166MR BARKER: Just simply one global declaration ‑ ‑ ‑
167HER HONOUR: It is, it's a global declaration. It otherwise doesn't function, I have to say. I did look at this and I read Luu's case again and the way in which it was dealt with there, on my reading, was a global declaration ‑ ‑ ‑
168MR BARKER: I agree with that ‑ ‑ ‑
169HER HONOUR: So he's entitled to the 90 days. We have the additional time for the home invasion but that is not part of the CCO sentence.
170MR BARKER: I agree with that.
171HER HONOUR: I have taken it into account, plainly. The 90 days is effectively – what I have done, the s18 declaration is 395 days plus 90 days, and it will be declared as against the global sentence.
172MR BARKER: I agree with all that. I think there's a harder way to do it, alternatively, which is to try and have the 90 days come off the cumulative aspect of the sentence, but, as I say, it's harder and more complicated that way and less certain to actually play out as intended by the court ‑ ‑ ‑
173HER HONOUR: I must say, I don't mind if it's harder, but it just seems to me that this is the proper approach.
174MR BARKER: Perhaps not harder is the word, perhaps less efficient and less safe, to make ‑ ‑ ‑
175HER HONOUR: He's entitled to that time, he's served it, he's entitled to the declaration. I have given him a sentence which takes it into account, otherwise my sentence on the CCO breach would have been less. Does that make sense.
176MR BARKER: Yes.
177HER HONOUR: The 90 days is incorporated in the 10 months.
178MR BARKER: Yes, I understand, and I'm not asking Your Honour to do it in any other way, I just have to fill out certain documentation and ‑ ‑ ‑
179HER HONOUR: That will be plain, it will be clear on the order. I can appreciate why you raised it and it's because it is raised at different times. Mr Kamil, did you just raise your hand.
180OFFENDER KAMIL: No, no, no, I didn't ‑ ‑ ‑
181HER HONOUR: You just stretched, okay. It's raised at different times but there's one s18 declaration and it's for that period. That's why I confirmed it with counsel at the outset. You both agree.
182MR BARKER: I agree, and I don't wish to say anything else about it.
183HER HONOUR: No, no. I can appreciate why you're clarifying it because I must say it's a matter that I returned to a couple of times to consider. Do you agree, though, that those – the numbers reflect the sentence, and as I have indicated, the non-parole periods reflect all the mitigating factors but also that difference, as I assess it, between the co-accused and the matters I have referred to.
184MR BARKER: On all of the maths I totally agree, as Your Honour says, they are quite simple numbers. The non-parole period is only attached to the one sentence even though there's one PSD declaration made, and that's two years as against the three year – two years and 11 months, total effective sentence. I believe I'm right about that.
185HER HONOUR: Yes. So what will happen with the orders, as I understand it, is two will have to be generated because we have the CCO breach which is quite separate. It will be plain that three months on the CCO matter is cumulated on the two years 11 months, which arrives - and then it will be claimed that that arrives at three years, two months. There's a non-parole period on that of two years. So I have set that non-parole period ‑ ‑ ‑
186MR BARKER: I understand all that, Your Honour ‑ ‑ ‑
187HER HONOUR: Whether – I mean, we're going to get two orders with different amounts on it but the intended global total effective term is three years, two months – that's the end effect of my sentence. If it's not reflected or if it's not implemented in that way we'll be told by sentence management.
188MR BARKER: Mr Dickinson will probably get in touch, I think.
189HER HONOUR: Well, hopefully not, but they might. That's my intention, so I think that's clear, and the two years is set as against that intended global period.
190MR BARKER: I understand all of that, I am grateful, Your Honour.
191HER HONOUR: So, Mr Hammoude, you will have a chance to speak to your counsel when I leave the bench but what I have done in your case is I have sentenced you to a total of three years, five months and seven days. You will be eligible for parole in two years' time. You take off that sentence, though, the time that you've served. So you take away the 394 days, does that make sense.
192OFFENDER HAMMOUDE: Yeah.
193HER HONOUR: Mr Kamil, in your case, overall, I have sentenced you to three years and two months. Take away the time that you have served, in your case it's 485 days, and you will be eligible for parole in two years' time – take away the time that you've done. Does that make sense.
194Now, ancillary orders, there has to be a licence interference here because of Charge 1, is that right, on conviction – is there a mandatory period.
195MR KELLY: Yes – well, there's not a mandatory period but it is mandatory that the court make some order.
196HER HONOUR: Yes. Do either of you wish to be heard in relation to that – I mean, I must say what I propose to do is interfere with the licence for a relatively confined period of time because it takes into account effectively that they are detained for at least a two year period. So I am not really proposing to exceed that. Do either of you wish to be heard.
197MR BARKER: No, Your Honour.
198MR BACKWELL: No.
199HER HONOUR: What I will do is – I mean, are either of you licensed – do you have licences. No? Okay. If you want to drive a car when you're released, you have to take the appropriate steps. If you get picked up for driving unlicensed, driving disqualified, then you'll be charged. What I will do is, taking into account all matters, and also the importance – I mean, hopefully you will get yourself licensed, it will help with things like getting a job, for example, but what I'll do is I will cancel any licences held, although you're both telling me you don't have them, disqualify you from driving on the charge of theft of motor vehicle, which I think is Charge 1 for both of you, for a period of six months. That will commence as of today.
200HER HONOUR: I will make the disposal order then in the terms sought, noting it is unopposed. Now, Mr Barker and Mr Kelly, did you both check, in terms of the CCO breach, it was Charges 1,2,5,6,7,8,9,10,11 and 12. I'm just double-checking that because I think initially there was a reference to the home invasion and so forth which is simply not part of this.
201MR BARKER: That was my mistake in my submissions, Your Honour ‑ ‑ ‑
202HER HONOUR: So are these the right charges, do you both agree.
203MR KELLY: My instructor's checked that, yes, Your Honour.
204HER HONOUR: Thank you. Counsel, is there anything further.
205COUNSEL: No, Your Honour.
206HER HONOUR: Mr Hammoude, Mr Kamil, just stay where you are, give the prosecution a moment to leave the court and you'll have a chance to speak briefly with your counsel. So just remain where you are. Thank you.
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