Director of Public Prosecutions v Malkoun

[2016] VCC 766

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01090
CR 16-00795

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALBERT MALKOUN

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 June 2016
CASE MAY BE CITED AS:	DPP v MALKOUN
MEDIUM NEUTRAL CITATION:	[2016] VCC 766

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M.Regan
For Accused	Mr A. Lavery

HER HONOUR:

1Albert Malkoun, you have pleaded guilty to one charge of theft, which was a statutory alternative to Charge 2 on Indictment C1409706B.  You have also pleaded guilty to uplifted Summary Charge 2 of unlicensed driving and Summary Charge 4 of dangerous driving.  These charges are all on court file CR-14-01090.  You have also pleaded guilty to uplifted Summary Charge 13 of possession of ammunition.  That charge is on file CR-16-00795. 

2The maximum penalty for theft is ten years imprisonment.  The maximum penalty for dangerous driving is 240 penalty units, or two years imprisonment, with a mandatory licence cancelation and disqualification of at least six months.  The maximum penalty for unlicensed driving is 25 penalty units or three months imprisonment.  The maximum penalty for possession of the ammunition is 40 penalty units. 

3The prosecution sought an order for forfeiture of the ammunition which was not opposed.

4The plea of guilty to theft in this case occurred in unusual circumstances.  You pleaded guilty after the closure of the prosecution case in the trial of a number of offences related to the incident out of which the theft charge arises.  A no case submission was successful and you pleaded guilty to the statutory alternative of theft. 

5My conclusions as to the circumstances of this offending are derived from the evidence given in the trial.  The circumstances in summary are as follows.  On 14 September 2012, at approximately 3 pm, the female victim was called by her boyfriend, who made arrangements to meet her.  The victim drove her car and picked her boyfriend up.  They drove to a service station.  The boyfriend received a phone call.  It appears that that phone call involved making an arrangement to meet up with you and some other persons.   At about 4 pm, the victim parked her vehicle in a car park.  You were sitting in the driver's seat of another car with two other men.  There was a brief conversation between the victim and you, as she had met you before.  You asked to speak to the boyfriend.  The boyfriend got out of the victim's car and got into your car.  You then started your car and drove away with the boyfriend.

6The other two men got in the car with the victim, with a man known as Sam getting in the backseat, and the other man getting in the passenger's seat.  Sam produced VicRoads' transfer papers and told the victim to sign them as they were going to take the vehicle.  She at various times asked why.  She filled in some of the details as far as she knew them and explained that the vehicle belonged to her father's business.  In the course of conversation about this and in response to her question, Sam said that you were owed money and the car was being taken in - to some extent, satisfaction of that debt.

7The victim said that she felt that she had no option but to fill out the details insofar as she could although it appeared that she did reserve some details.  Sam then told the victim to get out of the car.  He took her place in the driver's seat and drove off.  It is my view that at that point in time, Sam had obtained control and possession of the car to the extent that the theft was at that point complete. 

8There are however circumstances which followed which are surrounding circumstances to this theft, which involved the car driven by Sam, stopping outside a milk bar behind the car driven by you.  At that point, Sam went and obtained a gun from the car driven by you.  He took the gun back into the victim's car.  There was a short conversation.  Both cars then drove off and stopped a short while later, with both the victim and her boyfriend being told to get out of the respective cars.  They got out and both cars drove off.  You were charged in respect of this incident on the basis of joint criminal enterprise and pleaded guilty on that basis. 

9The unlicensed driving and dangerous driving charges concern an incident on 14 September 2012.  At about 6.15 pm, you were driving a vehicle which was not the victim's vehicle in Pascoe Vale South.  A police officer pulled up in an unmarked car next to you and directed you to pull over to a line of parked cars.   You pulled over, then pulled out into the wrong side of the road, heading south in northbound lanes.  You then turned left and headed east in another street.  The police officer followed you.  The line of traffic had banked up.  You crossed onto the wrong side of that street into oncoming traffic.  The oncoming traffic was forced to pull over.  You moved back onto the correct side of the road.  You then became caught in traffic again and crossed the line onto the incorrect side of the road, driving again into the oncoming traffic.  Once again, traffic had to take evasive action.   The police officer stopped chasing you as it was becoming so dangerous that he thought he should stop the pursuit. 

10On 23 October 2012, you were found in possession of three brass cartridges and four shotgun shells. 

11In sentencing you, I have taken into account your personal circumstances.  Your counsel described your personal circumstances and they are also set out in the report of Mr Martin Jackson, neuropsychologist, dated 3 July 2014 which was tendered as Exhibit 2.

12You had an unstable upbringing, having attended about twenty schools.  Your father had gambling problems and your family moved around on a number of occasions.  Your mother has continued to be supportive of you and was in court to support you.  You have been in a relationship and have two very young children who are at present, in custody of their maternal grandparents, as their mother is unable to care for them.   You have no particular mental health or cognitive issues. 

13The most significant issue in terms of your adult life has been your drug use from the age of 18.  You have used ice on a regular basis.  You have a prior criminal history which include drug related offending.  You are now 25.  You have spent a considerable portion of the last five years in gaol.

14You have admitted a significant prior criminal history and you also have a number of subsequent convictions.  Your offending generally includes dishonesty offending and driving offences.  You were on parole when the offences for which I am dealing with you were committed.

15In sentencing submissions, your counsel sought to rely on the circumstances of the offending in relation to an assessment of the gravity of the offending.  He submitted that I should draw an inference that the victim's boyfriend had in effect set up this situation and was in some way, behind the proposed transfer of the vehicle to you and the other persons.   Your counsel particularly relied on the evidence about the arrangements of the meeting and the transfer papers being produced.  I do not accept that the inference that your counsel asked me to draw, can be drawn from the evidence.  My conclusion is that any such inference would be mere speculation.  There could have been any number of reasons why the meeting was arranged or why the boyfriend got the victim to go with him to the meeting. 

16It is clear that you Sam and the other person between you planned to take the car.  You came prepared with transfer papers.  That is evidence of planning on the part of the three of you involved in the joint criminal enterprise.  That is not evidence of the boyfriend being involved.   There is insufficient evidence for me to determine what role, if any, the boyfriend had, apart from there being hearsay evidence that he owed money.  Even if the boyfriend was in some way involved, that does not in my view reduce your culpability for this offending.

17Your counsel also addressed the mitigating factors of your plea of guilty in that the motor vehicle was recovered and that in respect of the dangerous driving, there was no evidence of high speed.  Your counsel also submitted that in view of your lack of prior offending in respect of theft of motor vehicle, that a sentence of imprisonment would be appropriate, but that ought to be at the lower end of the range for this type of offending.    Your counsel tendered as Exhibit 1 the relevant sentencing snapshot from the Sentencing Advisory Council.

18Your counsel also addressed your prospects of rehabilitation.  He said you had done courses and work in earlier times in gaol.  More recently, you have been in the Metropolitan Remand Centre and have not been able to engage in courses or work.  Your counsel said that you wished to be a father to your children.  He said you realise that you need to deal with your drug issues, in order to do that.

19The prosecutor and your counsel agreed that you have spent 256 days in custody, which would be reckoned as served in respect of this offending pursuant to s.18 of the Sentencing Act 1991. You have spent additional periods in custody since this offending, which must be taken into account in application of the principle of totality.

20As a result of your arrest on this offending, your parole was revoked which meant that you spent seven months in custody on a previous sentence.  You served a further 342 days as a result of two Magistrates' Court sentences for subsequent offending, including dishonesty offending, driving offences, weapons offences and an offence of theft of motor vehicle.

21The circumstances of this theft of motor vehicle are different than some thefts of motor vehicle.  The car was taken directly from the victim, rather than for example from beside the road.  On the evidence of the victim, there was an absence of very overt aggressive behaviour from any of the participants, particularly including you or Sam but nevertheless she was scared quite clearly during this incident.   The victim was involved in the taking of a car which was owned by her father's business.  The debt that apparently led to this taking of the car was not hers.  This must have been a very difficult and frightening time for her.  It is clear that the behaviour towards her was intimidating.   The car was recovered, and that must be taken into account.  It is an aggravating feature that this offence was committed while you were on parole. 

22In respect of the dangerous driving, I consider that there was less risk because of the lack of high speed, compared to high speed dangerous driving.  Nevertheless, it is a very dangerous thing to do, to drive on the wrong side of the road, causing people to have to pull up.  Accidents happen quite often when people have to stop suddenly.  People could easily have been injured.  Very fortunately they were not and that must be taken into account.   You were not licenced to drive and you should not have been driving. 

23In respect of the ammunition, it is always a serious matter to have ammunition, but there is no evidence that you were planning to use this ammunition in any particular way. 

24In sentencing you, I have taken into account that you are relatively young and your prospects of rehabilitation must be an important sentencing consideration.  Despite your youth, you have an extensive criminal history.  My view is that at present, your prospects of rehabilitation are poor.   Prior to this offending, you had breached a community correction order and a suspended sentence.  You had served time in gaol.  You were on parole, but you still committed these offences.  You have committed further offences since.  It is clear that your rehabilitation is dependent on your ability to stay away from illegal drugs and criminal associates.  That is clearly something that you find difficult.

25There is some hope in your desire to be a proper father to your children.  That is a strong motivation for you to engage in rehabilitation.  I hope that you are able to carry through that motivation when you are released from custody.  If you can stay away from illegal drugs and criminal associates, then I consider that your prospects for rehabilitation would be reasonable.  You are able to work.  You have no mental health or cognitive issues which would prevent you becoming a productive member of the community.

26I consider that you are entitled to only a small discount for your plea of guilty.  That plea of guilty has had a very limited utilitarian benefit.  It does amount to some late acceptance of your responsibility for this incident.

27The principle of totality is significant in this case.  The periods of time that you have spent in custody since this offending must be taken into account.  I have given consideration as to the potential for concurrency that you might have had if you had been sentenced in respect of these matters earlier.

28The application of principle of totality has led to a reduced sentence compared to that which would otherwise have been imposed. 

29Could you please stand up Mr Malkoun.

30This is in respect of CR 1401090.  On the statutory alternative to Charge 2 of theft, you are convicted and sentenced to 180 days imprisonment.  On Summary Charge 2 of unlicensed driving, you are convicted and sentenced to 30 days imprisonment.  On Summary Charge 4 of dangerous driving, you are convicted and sentenced to 90 days imprisonment.  Your licence is cancelled.  You are disqualified from driving in the state of Victoria for a period of six months from today. 

31The sentence on the theft charge is the base sentence.  Thirty days of the sentence on Summary Charge 4 are to be served cumulatively on the sentence on the theft charge.  The total effective sentence is 210 days imprisonment.  I declare that you have served 210 days by way of pre-sentence detention to be deducted administratively.  But for your plea of guilty, I would have sentenced you to a term of imprisonment of nine months. 

32On CR-16-00795, on summary Charge 13 of possession of ammunition, you are convicted and fined $500.  I have made the order for forfeiture that was sought.  Could you please take your seat, Mr Malkoun.  Now, can anybody sort of see any technical matters that have not been dealt with?

33MR LAVERY:  Well I'd mention, Your Honour, I do not seek a stay on the fine.

34HER HONOUR:  Right, thank you. 

35MR LAVERY:  Certainly.

36HER HONOUR:  You don't?

37MR LAVERY:  No I do not, Your Honour.

38HER HONOUR:  All right, otherwise are there any technical matters that have not been dealt with?

39MR REGAN:  No, Your Honour.  It's all in order.

40HER HONOUR:  All right.  Thank you both very much for your assistance. 

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