Director of Public Prosecutions v Kassab
[2017] VCC 1392
•25 September 2017
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 16-01108
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABRAHIM KASSAB |
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JUDGE: | HIS HONOUR JUDGE STUART |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 25 September 2017 |
CASE MAY BE CITED AS: | DPP v Kassab |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1392 |
EX TEMPORE REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Jassar | |
For the Accused | Ms L. Ristivojevic |
HIS HONOUR:
1Abrahim Kassab, you have pleaded guilty to one charge of possessing an unregistered general category handgun, which carries with it a maximum penalty of seven years' imprisonment and a fine. In addition, you have pleaded guilty to one charge of possession of methylamphetamine, which, in the circumstances where your possession was not for your own use, the maximum penalty is five years' imprisonment and/or a fine, and Charge 3, possession of a drug of dependence, namely cannabis, which carries with it a maximum penalty of one years' imprisonment.
2In addition, you have pleaded guilty to three summary offences. One of dealing in property, namely a quantity of power tools, suspected of being proceeds of crime, which carries with it a maximum penalty of two years' imprisonment, being Charge 8. Charge 15, possession of cartridge ammunition, which carries with it a fine only, and Charge 17, possession of a prohibited weapon, which carries with it a maximum penalty of one years' imprisonment and a fine.
3The circumstances surrounding your offending are set out in the prosecution summary which became Exhibit 1 on the plea. You were born on 17 July 1981 and at the time of the offending you were 33 years of age. The offending was detected as a result of a search warrant being executed at your premises at 11 Sunset Boulevard in Jacana on 16 September 2015. It is important to observe at this point of time that that is now over two years ago.
4Police located in a garage a large quantity of tools, including power tools, branded "Total Tools". These tools were found to be part of theft of goods from Total Tools warehouse in Port Melbourne that occurred between 27 July 2015 and 16 September 2015.
5The total value of the tools located in the garage was $4,685.60. Police also located at the address a quantity of green and off-white powder and white crystals, which were concealed in various places throughout the premises in deal bags of various sizes. These substances were analysed and found to constitute methylamphetamine with a weight of 95.2 grams, with an approximately purity between less than 1 per cent up to 86 per cent.
6In the circumstances here, it is conceded by the defence, and accepted by the prosecution, that some of that material was held by you for another for their purposes of selling on the methylamphetamine. Thus the higher maximum penalty is appropriate, as I have stated.
7Also located at this address was 56.3 grams of cannabis and other items in relation to the drugs that were seized included calculators and scales. This gives further flesh to the accepted contention that you were holding a portion of the methylamphetamine for another person, for his or her trafficking purposes.
8Police also located a BB gun, which is an air gun, and pellets, as well as a flick knife in the garage. The air gun is the subject of Charge 1, and the cartridge ammunition and the flick knife are uplifted Summary Charges 15 and 17 respectively.
9You were arrested at that premises and when you were questioned by police you exercised your right to remain silent. The matter was eventually resolved, with you pleading guilty on 12 May this year. The matter has since been adjourned and bail conditions varied to enable you to enter as an inpatient a drug rehabilitation course, which I will come to in due course.
10Ordinarily, for offences such as these, on indictment, in particular the possession of the methylamphetamine, a custodial sentence would be imposed, particularly having regard to your prior criminal history, which in terms of numbers of court appearances, leaving aside Magistrates' Court appearances, which were the subject of appeals to this court, number no less than 13.
11During the course of those 13 court appearances, you have been dealt with for 26 criminal offences. Startlingly, your first court appearance was in this court, when you were charged with two charges of armed robbery, for which you received the three-year period of imprisonment with a non-parole period of one year. At the time of that offending you were but 20 years and that offending is significantly different from the offending that involved your other 12 court appearances and the offending that is before me.
12Nonetheless, it was a startling beginning to your court appearances. Your subsequent offending includes a number of offences of possession of cannabis and methylamphetamine and amphetamine. And numerous occasions being dealt with for driving whilst your authorisation to drive was either suspended or you were disqualified, showing a disregard for the law.
13I have had the benefit of your counsel's submission as to your background, both oral and written. In the interim period of two years you have decided to turn your life around in a manner which is truly remarkable, indeed it is as laudable as it is remarkable.
14You come from a family whose ethnic background is Lebanese. It was, and is, a close and stable family environment which you have had the benefit of throughout. Sadly, your father unexpectedly was diagnosed with terminal cancer, dying shortly thereafter in 2010. You, together with your other brothers, were particularly close to him.
15You have had the benefit of your partner, now-wife, of 13 years, and have three children, aged twelve, seven and three years. You are clearly, according to the materials which I will come to, a loving husband and father.
16You left school, not being academic, at Year 9, and obtained your concreting apprenticeship, and worked full-time with your brother in his concreting business for some five to six years. Unfortunately, you suffered a significant lower back injury and that meant that for some ten years you have been unable to work. You eventually received a payout from WorkCover in 2012.
17However you found that the pain relief that you were offered was not working and thus turned to the narcotics that you used, methylamphetamine and cannabis. You became a recluse, staying in the family home and not venturing out. Other than a minor matter dealt with in the Magistrates' Court late last year, in relation to possession of cannabis and another narcotic for which you were fined, you have been in no trouble in the intervening period of two years.
18In order to properly understand the sentencing considerations which are pertinent here, it is necessary to go into some detail in relation to events of recent times. I have indicated that the plea was adjourned from May of this year in order for you to enter into an addiction treatment recovery program. This occurred, and in the clinical counsellor's report of Neil Sanderson, which became Exhibit AK1, he writes of you:
"Your Honour, I am providing the following information, as I understand it to be, in regards to the matters of Mr. Abrahim Kassab, currently before your honor (sic). I can report Mr Abrahim Kassab voluntarily entered our Addiction Treatment Recovery Program on the 27th June 2017 as a full time, inpatient client, where he presented with the classic signs and symptoms of chronic addiction and anxiety. I can report that Abrahim has attended all program activities and has engaged in the therapeutic process of addiction treatment. In addition he has responded extremely well to treatment and has made enormous strides towards his recovery. Abrahim has gained valuable insight into addiction and addictive behaviour. Abrahim has expressed genuine remorse for past actions. Importantly, Abrahim accepts responsibility for the actions he has taken, and now accepts responsibility for his on-going recovery. I can report that Abrahim is due to exit our addiction treatment program on 24th July 2017, having completed all aspects of his treatment program. Abrahim has expressed a genuine desire to extend his stay in treatment by a further 10 days, as an outpatient client. This would afford him the opportunity to integrate back into mainstream society while still attending on going treatment and support.
“Abrahim exited our treatment program on Monday 7 August 2017, having completed all aspects of his treatment program successfully. Since that date, Abrahim has been a regular attendee at our aftercare program, Monday night 7 pm and regular attendee at 12-Steps meetings."
19Mr Sanderson then goes on to detail further ongoing treatment recommendations, which I will not articulate, but continues with the following passage:
"I believe that if Abrahim continues to attend to the above with due diligence and does not use drugs, drink alcohol he is unlikely to reoffend or relapse from a state of sobriety. Abrahim displays a high degree of integrity, responsibility, ambition, and dependability, in addition to those personal attributes, I believe Abrahim to have a distinctively holistic approach to his recovery from addiction by his use of the tools given to him in the rooms of Alcoholics Anonymous and Narcotics Anonymous. I find Abrahim has clear insight with the need to bring about change and turn his life around. I believe he has the necessary skills required to make life-changing decisions and the inner strength to carry these changes out."
20In the penultimate paragraph, Mr Sanderson says, among other things:
"In all my dealings with Abrahim I have found him to be a highly motivated, sincere, honest and valued member of the therapeutic community. I believe Abrahim to have total commitment to his recovery from addiction. Abrahim has the necessary drive and focus to achieve his goals in life. The road of recovery can often be hard, however; Abrahim has the tenacity to achieve a positive outcome. Abrahim has experienced some setbacks in his life; this has not dissuaded him from his purpose, to remain abstinent from Alcohol and other Drugs, and deal with life on life's terms."
21It is relatively rare to receive a report which is so glowing, but it is confirmed in other ways as well, for there are two other inpatient attendees who you met who have written references which became Exhibit AK2 and AK3, being Damien Magee, and Joshua Litsas. Mr Magee writes, among other things:
“I have had the pleasure of knowing Abrahim Kassab since the 1st of July 2017. Abrahim and I attended the Dayhab residential substance rehabilitation program in Glen Waverley. Abrahim entered as we all did, broken and severely remorseful for the damage that he had caused not only to other but also himself. He was a great contributor during group sessions and was firmly committed to improving himself in the process."
22In the penultimate paragraph of this letter, Mr Magee continues:
"I have no reservations in providing a character reference for Abrahim. The kindness and care he displayed to staff and clients coupled with the love and devotion to his family demonstrated to me someone who understands the impact of his previous transgressions and of someone ready and willing to make a new start towards a better future."
23Mr Litsas, in his letter, observed:
"It was obvious he was taking his rehabilitation seriously, he's caring and considerate, and able to assist me in times of emotional distress. I found Abrahim all he cared and focused was about getting healthier to be a better husband, dad and member of society. Since leaving the rehab program, I've been seeing Abrahim at the NA (Narcotics Anonymous) meetings regularly, as well as catching up for dinners and other support group meetings. From my observations, he is taking his recovery head on, only wants to be a normal husband, father and normal human being".
24Thus, from the perspective of these people, you too have presented as an impressive man in your efforts to rehabilitate yourself. Your partner and wife also has written a letter, which became Exhibit AK4. In it, she writes, amongst other things:
"Your Honour Abrahim has fought his own demons to beat his addiction and is trying to live a normal life with his family, I am so proud of Abrahim for turning his life around, and personally as his partner I believe Abrahim has learnt his lessons the hard way."
25It was put, and I accept, that much of the motivation for this type of offending that you engaged in was because of the pain associated with your lower back injury. This is now, according to the letter of Dr Peter Grant, being appropriately treated with chiropractic treatment which has involved the following:
“Gentle adjustment of the lumbo-pelvic spine, with associated soft tissue technique on the pelvic muscles. The treatment has progressed over a six-week cycle. Mr Kassab has been diligent in maintaining his appointments and has made excellent progress to date."
26As to the prognosis, Dr Grant writes:
"Mr Kassab's prognosis is good. This is however dependant on his continuation of his exercise plan and supporting chiropractic care."
27Rehabilitation of an offender is always a matter of significance, but here it assumes a heightened level of importance in the sentencing process, not only because it is desirable that courts encourage others, and in particular the person before them, to rehabilitate themselves, not only for their own benefit, but for the benefit of the community as a whole, for it is far better that they be rehabilitated and become productive members of the community than to sentence them to imprisonment.
28In addition, the principle of parsimony requires another sentencing disposition, if it is appropriately open, other than imprisonment, which is submitted is appropriate in this case.
29Further, Mr Kassab, you have entered into the residential rehabilitation program, which also, because of its regime, is a form of punishment, as articulated in the joint judgment of Warren CJ, and Kyrou and Redlich JJA in Nathan Akoka v The Queen [2017] VSCA 214. At [101] of their joint judgment, their Honours state:
"In In R v Delaney, James J (with whom Santow JA agreed) held that the sentencing judge had erred in refusing to take into account the time the offender had spent undertaking residential rehabilitation programs. James J referred to evidence of the strict discipline expected of people who entered the programs and held that ‘the conditions of the residential programs in which the [offender] was participating amounted to conditions of quasi-custody’. James J said the following:
‘If the [offender] was participating in programs the conditions of which amounted to conditions of quasi-custody, then the [offender] should not, in my opinion, be disentitled from obtaining a credit in sentencing, by reason of the circumstance that part of his motivation for undertaking the programs might have been to create a favourable impression at any sentence hearing. The [offender’s] motive for undertaking the programs might be relevant in the assessment of the applicant’s prospects of rehabilitation but in my view it is not relevant in determining whether he should be entitled to some credit in sentencing, on the basis that he has already undergone a kind of punishment by being subjected to quasi-custody.’”
30Their Honours continue in paragraphs [105] and [106], stating:
"In our opinion, subject to the observations that follow, the approach adopted in New South Wales and the Australian Capital Territory is correct and it should be followed in Victoria. Such an approach will also promote comity with the courts of other Australian jurisdictions. That approach, adapted in the manner discussed below, will require Victorian sentencing courts to give greater emphasis than in the past to the punitive element of residency in a rehabilitation facility such as Odyssey House.
“As has been demonstrated in the present case, residency at a rehabilitation facility has the potential to significantly assist an offender’s rehabilitation. In particular, such residency may assist an offender to overcome drug dependency and other factors that have contributed to his or her offending and to develop strategies for becoming a law abiding citizen. These outcomes benefit not only the offender but also the community. It is in the interests of the community for offenders — particularly young offenders — to reform and make positive contributions to the community rather than spend their lives in and out of prison for increasingly more serious offending. I am satisfied in these circumstances that you have done exactly that and are entitled to have that quasi-custody taken into account in assessing what is the appropriate sentence that I must impose.”
31Your motivation, so far as I am concerned, has been both altruistic, as well as a desire to improve yourself. I assess your prospects of rehabilitation, subject to your continued resolve to avoid any drugs, as excellent. This is one case where it can truly be said that a person, now no longer a young person, but certainly with much of your life ahead of you, as being one determined to make a change in life.
32This finding also impacts on the lessened need for specific deterrence to play a role in this particular case. Indeed, I am satisfied on the material before me that specific deterrence, that is, deterring you from further offending, is of little, if any, moment.
33You have pleaded guilty, and I take that into account, not only in terms of its utility, but also in terms of demonstrating your further remorse for your previous criminal behaviour. Not only as it relates to the matters before me, but in the past as well.
34General deterrence must however play a role in this case. And there must be some degree of just punishment in the sentence that I impose.
35In all the circumstances, I therefore intend to release you on a two-year community corrections order with two conditions beyond the core conditions. That you be under supervision of a community corrections officer during the course of that period of two years, and that you perform 200 hours of unpaid community service work during the course of that two-year period.
36I understand that there is no requirement for any assessment in those circumstances. That is the information my associate provides me with, so does anyone wish to dissent on that?
37MS JASSAR: No Your Honour, as long as the information is relayed from a community corrections officer, I do not take issue with that sir.
38HIS HONOUR: Yes, well - yes. Now, stand up, Mr Kassab. It is because of your own actions that I am going to give you a chance of avoiding gaol, which would normally be what would happen to you, given your past criminal history. You have demonstrated determination to turn your life around. I think your prospects of rehabilitation are excellent, if you keep that in your mind and continue to be completely abstinent from any use of drugs.
39You must consent to this community corrections order. It carries with it an obligation to behave in a lawful manner throughout the period of it, and if you breach that community corrections order, you will not be brought back before a magistrate in the Magistrates' Court, you will not be brought back before a judge of this court other than myself. You will be brought back before me, do you understand? Do you consent to entering into that two-year community corrections order? Very well.
40Mr Kassab can stand down from the dock. Closest location is?
41MS RISTIVOJEVIC: Broadmeadows, Your Honour.
42HIS HONOUR: Broadmeadows. And thank you for drawing my attention to that matter of Akoka, Ms ‑ ‑ ‑
43MS RISTIVOJEVIC: Okay.
44HIS HONOUR: Ms Ristivojevic.
45MS RISTIVOJEVIC: Ristivojevic.
46HIS HONOUR: Sorry?
47MS RISTIVOJEVIC: Ristivojevic.
48HIS HONOUR: Ristivojevic. I see that there, all right. My apologies, it's ‑ ‑ ‑
49MS RISTIVOJEVIC: No need to apologise, Your Honour.
50HIS HONOUR: ‑ ‑ ‑ just me. Yes, is the report - is the ‑ ‑ ‑
51MR JASSAR: It might take a minute, Your Honour.
52HIS HONOUR: Yes. I have made those forfeiture and disposal orders,
Mr Jassar.53MR JASSAR: Thank you sir. Need a s.6AAA declaration as well, Your Honour.
54HIS HONOUR: Yes, but for the pleas of guilty, I would have imposed a sentence of nine months' imprisonment.
55MR JASSAR: As the court pleases.
56MS RISTIVOJEVIC: As Your Honour pleases.
57HIS HONOUR: I think what I will do is - I will stand down so that those involved in the trial can be at the Bar table, and the accused can be in the dock. I will wait and then come back, and conclude the signing of the community corrections order.
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