Director of Public Prosecutions v Mahmoud

[2010] VCC 2029

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

AT MELBOURNE
CRIMINAL JURISDICTION

AP-10-2428

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAREEM MAHMOUD

---

JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	15 & 16 December 2010
DATE OF SENTENCE:	17 December 2010
CASE MAY BE CITED AS:	DPP v Mahmoud
MEDIUM NEUTRAL CITATION:	[2010] VCC 2029

REASONS FOR SENTENCE
---

Subject:Appeal - sentencing

Catchwords:             Burglary – theft – dishonesty offences

Legislation Cited:     Sentencing Act 1991

Cases Cited:            

Sentence:18 months’ imprisonment, partly suspended,
plus 18-month community-based order

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Hannan	Office of Public Prosecutions
For the Appellant at hearing For the Appellant at sentence	Ms C. Hollingworth Mr C. Farrington	Victoria Legal Aid

HIS HONOUR:

1You would have heard the conversations being had in court in the course of this appeal.  You have participated in assessment for the community-based order and you have also heard, and no doubt understand, the proposed orders that I am prepared to make in your case.  Just so that it is clear I want to explain a few things to you.

2This appeal involved initially up to 60 odd counts of burglaries and theft occurring over a three-month period early this year. I have accepted that you came to Australia in 2005.  You were sent here by your father.  I suspect there is a lot more that previously occurred in Egypt, possibly even involving drugs before you got to Australia.

3But in any event, even if that is not the case, a short time after your parents left, you got yourself in a situation where you dipped very deeply into the well, initially of amphetamines and then heroin.

4I have accepted that these offences occurred in circumstances when you were very much in a vice-like grip of heroin addiction.

5Now that does not excuse your conduct at all and you cannot expect in the future, courts to simply give what might be seen as soft sentencing options simply because you have a drug addiction.  What I am prepared to do is accept that before this period you did not have the addiction and it is because of the addiction that you got involved in this period of very serious crime, and give you a chance with the help of the courts and the community services for you to address the issues in your life which cause your addiction.

6Experience shows that getting out of a heroin addiction is one of the hardest things a human being can do.  Experience also shows that the only way it happens is with a pharmacological program like you are getting with medications such as Suboxone, together with a real commitment.

7You will have compulsions to go back into drugs and you are going to have to deal with them.  The only way you are going to achieve any success is to apply as hard as you can, with as much commitment as you can, to the programs that we as a community are going to offer you.  

8And I know you will have the best of intentions but that a lot of people, friends of yours, associates, people you have met, are into drugs.  You have got to keep away from them.  But you come here as a recent arrival and you are welcome in Australia.  And it is a land of great opportunity.  Great opportunity for you to live a very happy life.

9So do not kick this community and spit in its face by breaking into people's houses and stealing their goods and acting like a common thief, particularly after the background you have had with your very loving and caring parents who have always had your best interests at heart.  Now you might have found from time to time that the discipline from your father was harsh, but no doubt it has been with the best of intentions.

10At the same time, your father will realise that there is a time when he has to give you responsibility for making your own decisions and he cannot keep directing your life as well.  This is a crossroad in your life.  This is the time where you have to act and you will be responsible, not your mum and dad, not your family, you, for how you conduct yourself and how the rest of your life is going to be.

11This moment in this court, this day, is the defining time because how you act from this time onwards is going to direct whether you spend a great part of the rest of your life in a gaol.  These are serious offences.  They extend over a considerable period and courts will not keep giving opportunities to you if you reject this opportunity.

12So what is happening is I am giving you the opportunity, after you now have spent some considerable time in gaol, I think it is about 180 days, I will give you a chance now to get out of that gaol and commence a program in the hope that you can beat your addiction and get over the causes, the underlying issues that cause your offending. You will be helped by other people but you have got to make the commitment.

13I give you this warning. The services that will be directed are designed to assist you in your rehabilitation but you have got to be proactive.  If you have a problem, it does not matter what it is, it might be a domestic issue at home or something else, you go and see one of those health professionals because they will respond to you if you show that sort of commitment.  If you are not getting the services that you need, speak to them.

14Now, I will make the orders and I will explain a little about some detail in a moment.  Firstly, the formal orders are these - that the orders of the Magistrates' Court of Melbourne on 1 October 2010 are set aside and in their stead I make the following orders:

15Charges 3, 4, 5, 12, 13, 14, 15, 17, 18, 19, 30, 31, 38, 39, 41, 42, 43 and 45 are struck out.

16On Charges 1, 6, 8, 20, 22, 25, 32, 33, 35, 36, you are convicted and sentenced to an aggregate sentence of 18 months' imprisonment.

17I direct that you serve 180 days in custody and the balance of 440 days is to be suspended in accordance with s.27 of the Sentencing Act.  I declare that the operational of period of the suspended sentence is two years.

18I further declare that the period you have been in custody in respect of these offences, namely 180 days, be reckoned as a period in prison already served under this sentence which is to be deducted administratively.

19The purpose and effect of that proposed suspension order is to grant you conditional freedom from its commencement, the condition being that you avoid conviction for an offence punishable by imprisonment for the next two years.  If you commit such an offence in that period, you will be liable to again attend court, and if necessary that will be under arrest, and in the absence of exceptional circumstances you will be ordered to serve that sentence.

20Now, if you breach it, you are not coming back to a court generally, you will come back before me. I have a record of everything that has been done for you and you will understand what the likely consequences are going to be if you breach it.  You have been given a chance.

21I will note on the record that it is the intention of the court that you be immediately released because you have already served the time that I have declared that you should serve before the sentence is suspended.

22On the remaining offences, Charges 2, 7, 9, 10, 11, 16, 21, 23, 24, 26, 27, 28, 29, 34, 37, 40, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60 and 61, you are convicted and ordered to serve a community-based order for a period of 18 months from today.

23The order commences today, 17 December 2010, and ends on 16 June 2012.  The corrections centre you will attend is the Carlton Community Correctional Service at 444 Swanston Street, Carlton and you must attend there within two clear working days after the commencement of this order, that is, by 4 pm this Tuesday, 21 December 2010.

24All the core conditions apply and the program conditions I impose are that you perform 100 hours of unpaid community work as directed by the regional manager over a period of 18 months, you be under the supervision of a community corrections officer and you undergo assessment and treatment for alcohol and drug addiction or submit to medical or psychological or psychiatric assessment and treatment as directed by the regional manager.

25I understand you have had the core conditions read but I will just remind you that you must not commit another offence which is punishable on conviction by imprisonment during the period of that order, and that is whether it is inside Victoria or outside Victoria.  You must report to the specified community corrections centre, that is the Carlton centre, within two days and that is, as I have already indicated, by Tuesday next week. You must report to and receive visits from a community corrections officer.

26You must notify an officer at the specified community corrections centre of any change of address or employment during that period within two clear working days after the change and you must not leave Victoria except with the permission of an officer at the specified community corrections centre granted either generally or in relation to a particular case.

27And you must obey all lawful instructions and directions of community corrections officers.  You will have that form.  The point about all those matters is that you keep communicating with them.  So, do you understand and agree to those conditions, Mr Mahmoud?

28OFFENDER:  Yes, sir.

29HIS HONOUR:  Now, if you are sick or there are exceptional circumstances, the order may be suspended for a period of time and if your circumstances materially alter, you may apply for a variation or cancellation of the order.  In either case, you must notify the community corrections centre at Carlton and in those circumstances I recommend that you obtain legal advice as well. 

30So, again, I warn you that if you breach any condition of this order, you will be brought back before me and be resentenced on the original charges and also dealt with for any breach. Do you understand the consequences of breaching a community-based order?

31OFFENDER:  Yes, sir.

32HIS HONOUR:  All right, I will ask you to sign the community-based order in a moment.

33I declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty, the total effective sentence that would have been imposed is 24 months’ imprisonment with a non-parole period of 16 months.  All right, can Mr Mahmoud be provided with the order for signing?

34HIS HONOUR:  Mr Hannan ‑ ‑ ‑

35MR HANNAN:  Your Honour, yes.

36HIS HONOUR:  ‑ ‑ ‑ there was also - you may be seated Mr Mahmoud. 
Mr Hannan there was also a forfeiture order and compensation orders that were part of this original appeal ‑ ‑ ‑

37MR HANNAN:  That is right, Your Honour, yes.

38HIS HONOUR:  ‑ ‑ ‑ and I am not in a position to - what do you want me to do about that?  I don't have any formal orders here.

39MR HANNAN:   No, Your Honour, I have endeavoured to have an instructor to obtain the address of all the payees on those compensation orders without success.

40HIS HONOUR:  Yes.

41MR HANNAN: I notice I have not got - well I do - in the Criminal Procedure Act, Your Honour is able to make such orders as were made below - I wonder if Your Honour would consider doing that given that in two instances ‑ ‑ ‑

42HIS HONOUR:  Well could I do this - are you satisfied if I said this:  that in relation to the compensation order and the forfeiture orders, I impose the identical orders which were made by the magistrate on 1 October 2010 - cannot do it?

43MR HANNAN:  I would be Your Honour with this ‑ ‑ ‑

44HIS HONOUR:  Why not?  No hang on, I have got two submissions going on (indistinct words).

45MR HANNAN:  Your Honour, I was going to say, I would with this caveat, that in the case of the compensation orders applicable to Charges 58 and 59, unlike the certified extract which named no payee - I could add the payee's names on those two ‑ ‑ ‑

46HIS HONOUR:  Look I think the compensation order - if you want the compensation orders then they have to be put before the court in the appropriate way ‑ ‑ ‑

47MR HANNAN:  As Your Honour pleases.

48HIS HONOUR:  ‑ ‑ ‑ with addresses so that I can properly deal with them and you can do that subsequently.

49MR HANNAN:   That can be done.  In that case Your Honour would be proposing to adjourn that aspect sine die or to a date?

50HIS HONOUR:  Well I just give you leave to apply.

51MR HANNAN:  Leave to apply, yes.

52HIS HONOUR:  Just if you, on the basis that you let my associate know that ‑ ‑ ‑

53MR HANNAN:  Yes.

54HIS HONOUR:  ‑ ‑ ‑ the application is being made.  It may not even be necessary to reconvene the court.  We can do it in chambers.

55MR HANNAN:  I will pass that on, Your Honour.

56HIS HONOUR:  All right, now as to the forfeiture order ‑ ‑ ‑

57MR HANNAN:  There were two of those ‑ ‑ ‑

58HIS HONOUR:  We can do that I think.

59MR HANNAN:  Yes, one of them Your Honour is - was where the informant, Thompson - that was in respect of the charge of dealing in property suspected of being proceeds of crime - that was an Australian Army service medal, that was Charge 9.

60HIS HONOUR:  Yes, so, as to Charge 9 ‑ ‑ ‑

61MR HANNAN:  In a box - it was in a box.

62HIS HONOUR:  I can certainly make - a forfeiture order is made.  Is that made without consent or with consent?

63MR FARRINGTON:  With consent, sir.

64HIS HONOUR:  All right, forfeiture order made with consent - order that all property seized be forfeited to the minister and disposed of or otherwise dealt with according to the direction of the minister - that is on Charge 9.

65MR HANNAN:  So can I - Your Honour the other one was on Charge 24, going equipped.

66HIS HONOUR:  Thirty four was it?

67MR HANNAN:  Twenty four, sir, 24.

68HIS HONOUR: 24, well I just make a similar order in relation to Charge 24 - by consent?

69MR FARRINGTON:  By consent.

70HIS HONOUR:  Thank you.

71MR FARRINGTON:  Thank you, Your Honour. 

72MR HANNAN:  Thank you sir.

73HIS HONOUR:  All right, well that being the case, are there any other matters, counsel, in relation to Mr Mahmoud?

74MR HANNAN:  No, Your Honour, I might seek, in due course a copy of that (indistinct), that is all.

75HIS HONOUR:  Yes.  And is it appropriate therefore that
Mr Mahmoud now be - is there further paperwork that has to be conducted for Mr Mahmoud before he is released?

76MR FARRINGTON:  I would have thought, Your Honour, he would have to go downstairs to be released.

77HIS HONOUR:  Yes, all right.  Do you agree with that sir?

78MR FARRINGTON:  Yes, as it pleases Your Honour.

79HIS HONOUR:  All right, Mr Mahmoud, you will have to just remain in custody for a short while whilst the appropriate paperwork is taken to the authorities downstairs and you will be released this morning.

80OFFENDER:  Okay, thank you - thanks for that.

81HIS HONOUR:  All right, well good luck, work hard with that and you can put all this behind you.

82OFFENDER:  Yep and I'm very sorry for what I've done.

83HIS HONOUR:  Thank you.  Yes, thank you.  Give it to counsel.  Thank you.

84COUNSEL:  Thank you, Your Honour.

85HIS HONOUR: I will just leave the Bench while the parties to the next case assemble.

‑ ‑ ‑