Director of Public Prosecutions v Moussa

[2019] VCC 2065

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

 Suitable for Publication

CR-19-00701

DIRECTOR OF PUBLIC PROSECUTIONS

v

BACEIL MOUSSA

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JUDGE:

His Honour Judge Johns

WHERE HELD:

Melbourne

DATE OF HEARING:

29 August 2019

15 October 2019

DATE OF SENTENCE:

23 October 2019

CASE MAY BE CITED AS:

DPP v Moussa

MEDIUM NEUTRAL CITATION:

[2019] VCC 2065

REASONS FOR SENTENCE

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Catchwords:  CRIMINAL LAW – Sentencing – burglary – criminal damage – theft –

relevant prior history – illicit substance use – youthful offender – combination sentence – immediate term of imprisonment – Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Brown (for Plea) Mr J. O'Toole (for Sentence)	Office of Public Prosecutions
For the Accused	Mr P.J. Smallwood	Starke Westwood Lawyers

HIS HONOUR: 

1Baceil Moussa, you have pleaded guilty to a charge of burglary, a charge of criminal damage and a charge of theft, each committed on 4 February 2019 at Preston.  The maximum penalty for each of these offences is 10 years' imprisonment. 

2You have also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail, which carries a maximum penalty of three months' imprisonment.  You have admitted the matters shown on your Criminal Record tendered as Exhibit A and read aloud in court on 29 August 2019. 

Circumstances of Offending

3The Summary of Prosecution Opening on your Plea is Exhibit A.  The facts set out in Exhibit A are accepted by you through your counsel and form part of these reasons for sentence.  In summary, the facts are as follows. 

4On 4 February 2019 in company with unknown co-offenders, you attended Northland Shopping Centre, Preston, at around 3 am.  Those you were in company with had a crowbar and a sledgehammer.  One co-offender sat in the car with his face covered by a balaclava whilst the crowbar and sledgehammer were used by others to cause damage to multiple glass doors.  Your group was seen by security staff on CCTV footage and 000 was contacted. 

5Once inside Northland, your group ran to the Optus Retail Store and forced entry to the store using the same manner by which entry had been gained to the Shopping Centre.  Substantial damage was caused in the process.  Once inside the Optus store your group entered a rear storeroom.  Access to the rear storeroom is dependent on a security code being entered.  One of the co-offenders entered a security code allowing you entry to the store room.  The same co-offender then entered a further security code on a safe within the storeroom, successfully opening that safe.  Your group removed electronic items from the safe and placed them into a sleeping bag carried by you.  Once the safe was empty the security code was entered again and a key was taken from a nearby desk opening a further security cupboard.  The process of taking stock from that cupboard and placing it into the sleeping bag continued. 

6You all then exited the store, taking the sleeping bag of stolen items back towards the waiting car outside Northland.  Police arrived at the same time.  Upon seeing police the driver accelerated trying to evade police.  Some of your co-offenders managed to get back into the waiting car.  You ran from police, you were unable to get into the car and you were subsequently arrested. 

7You were wearing white latex gloves at the time of your apprehension.  152 brand new mobile phones were recovered from the sleeping bag as well as a number of new tablets.  The total value of the items stolen was $183,292 with a retail value of $209,760.  The cost of the damage to the front door of the Optus store was $1,394, the cost of the damage to the doors of Northland was $4,532. 

8It was conceded on your Plea and the Crown case was put on the basis that you were not in possession of the crowbar or sledgehammer.  You were not successful at removing the stolen items any further than the entry to Northland, and that each of the offenders including yourself attended Northland with the intention of entering the Optus store specifically.  I pause to observe that neither of these matters, in my assessment, mitigate the circumstances of your offending.  It was a targeted offence aimed at the Optus store, obviously each playing a part, your part was to carry the sleeping bag. 

9You were on bail at the time.  I was provided with a brief summary of your antecedents in addition to your Criminal Record.  You had relevant prior convictions, principally Children's Court matters, but findings of guilt that include burglary, theft and other matters.  The record also reveals a consistent failure to abide by court imposed sanctions.  I was provided with a bail progress report during your Plea, which indicated that you were granted supervised bail for these matters on 10 April 2019. 

10You engaged in some employment during the period which you were on bail this year working with your cousin, but you reported in July 2019 that you had not worked consistently since April 2019.  In July 2019 you ceased working with your cousin and began working with Secure Waterproofing Solutions.  That employment was going to require you to travel long distances and stay overnight, which was not approved by your bail supervisor. 

11You engaged with Youth Northern Outreach Team in March 2019 in relation to the problem you have had with illicit drug use.  The reports tendered on the Plea, including the material from Mr Michael Bilyk dated 14 June 2019 (Exhibit 2) and from Ms Monique Toohey dated 17 June 2019 (Exhibit 3), they have confirmed your long history of drug addiction commencing when you were around 14 years of age. 

12The reports and the materials indicate that you have had a troubled home life, one involving considerable friction.  This may have contributed to what is described variously as social anxiety and depressive symptoms.  You are vulnerable to stress factors that exacerbate your anxiety.  The link between these matters and illicit drug use is a complex one and there is a relationship involving both that will need to be treated once you are released from custody via a Community Corrections Order. 

13Since this offending on 4 February 2019 you were initially granted bail on 26 February 2019.  On 28 February 2019 you attended the first of five consultations with Michael Bilyk.  On 18 March 2019 you were assessed by Monique Toohey, Psychologist.  On 16 April 2019 you were sentenced at the Broadmeadows Magistrates' Court to a fine and an aggregate term of imprisonment of two months.  You appealed that term of imprisonment to the County Court.  On 19 June 2019 that appeal was allowed, you were re-sentenced to a 12-month Community Corrections Order. 

14In the intervening period on 21 May 2019 you were sentenced at the Broadmeadows Children's Court to a fine.  On 16 July 2019 you were sentenced at the Broadmeadows Magistrates' Court to imprisonment for one day, being time served.  On 12 August 2019 you were arrested and remanded in custody in respect of offences that included an allegation of carjacking, the offences allegedly being committed at various times between 28 April 2019 and 12 August 2019.  You had remained in custody in relation to those charges and I revoked your bail on this matter on 29 August of this year.  On 18 October being last week, you were dealt with in this court in relation to contravention of a corrections order and a sentence of two months and 14 days' imprisonment was imposed. 

15I had you assessed for an Extended Pre-Sentence Report assessing your suitability for a Community Corrections Order.  Pertinent matters that emerged from the Report were that you told the author of the Report that the offending behaviours came about directly from the associations you had long held with a number of individuals.  You were under the influence of illicit substances at the time of the offending, and the individuals you were associating with were two or three years older than you. 

16The author of the Report observed that you have a criminal history beginning in 2016 at the Children's Court when you were 17 years of age.  Your offences range from violent theft and driving, some of which are similar to the particular suite of offending being presented to the court.  You demonstrated a pattern of breaching bail and thus your ability to comply with court expectations.  The author opined that although you are a young offender your criminal history is considered extensive. 

17You have an unwillingness or an inability to engage with Corrections Victoria.  You are assessed as not treatment ready during your last court assessment, and that recommendation was supported by the assessment that I sought.  You have support from your family, you have had that throughout these proceedings, that was also noted in the Report.  Unfortunately, as so often happens with drug users and those addicted to substances as you admitted to the author of the Pre-Sentence Report, you tend to isolate yourself from family in order to consume illicit substances. 

18This is not an unusual factor.  It tends to be that the disapproval, and sometimes impassioned efforts of family members to encourage someone in your situation to desist from illicit substance use, adds to your feelings of self-loathing that perhaps in turn tend to isolate you and drag you further toward illicit substance use.  This is clearly something you need to address in the future.  Your prospects for rehabilitation are bleak unless you can address your illicit substance use problem.  Your criminal antecedents and the risk to the community of you continuing on a criminal path are inextricably linked to that illicit substance use. 

Personal Circumstances

19Your personal history is one where you have been able to demonstrate an ability to engage in gainful employment.  As I noted, your earlier years were marked by having to grow up in a household where there was conflict.  I was told you were the youngest of six, you were around eight years of age when your parents separated but they stayed separated under the one roof.  Your father living upstairs and your mother living downstairs, and you were a witness to family violence in the home. 

20You completed Year 10 at Roxburgh Secondary College and entered a TAFE course in building and construction.  You had some difficulties at school in the sense of educational difficulties, and some problem behaviours that resulted in you moving high schools and on your assessment, leaving school early.  You have spent 73 days in pre-sentence detention for this matter.  You have recently turned 21 and you are still a very young man.  Up until a week ago you were a young offender within the meaning of the Sentencing Act 1991. Your youth has relevance as a sentencing consideration in this case in a number of ways.

21Firstly, young or relatively young offenders such as you are, are often immature and are prone to ill-considered decisions.  Young or youthful offenders may lack the degree of insight, judgment and self-control that is possessed by an adult.  They may not appreciate the nature, seriousness and consequences of their criminal conduct to the same degree.  Importantly, courts recognise the potential for young offenders to be redeemed and rehabilitated.  Rehabilitation of young offenders is in the community's interest. 

22It is also recognised that incarceration of young offenders will more likely impair than improve the offenders prospects of successful rehabilitation.  While in prison a young offender is likely to be exposed to corrupting influences which may entrench criminal behaviour and exacerbate antisocial tendencies.  I accept the importance of these considerations in your case and give them considerable weight.  The sentence I impose reflects the weight that I have given to the mitigatory effect of your relative youth. 

Objective gravity of the offending

23The burglary and theft offences you committed fall into a category of offending which is sometimes referred to as commercial burglary.  The offences required considerable planning, tools were required to effect the break in, disguises were worn by some of you and you targeted a store where you knew you would reap considerable financial gain from the resale of mobile phones.  The quantum of the theft is considerable.  Those objective circumstances are not diminished because you were not able to make a getaway with the stash. 

24Turning back to the extended assessment I sought, the author noted that you had had opportunities to partake in meaningful employment in the past, and indicated that you had good prospects of finding the same upon release from custody.  It was also noted by the author that you had admitted to choosing to partake in illicit substance use over work commitments in the past.  This highlights what I have already noted, that despite your ability and your best intentions, you have a significant mountain to climb in relation to your illicit substance use, and that must be a factor in the forefront of your mind as you complete the sentence that I will shortly impose. 

25The author deemed you unsuitable for a Community Corrections Order, stating that you had previously shown disregard for the intended interventions to address your offending behaviour, and failing to take advantage of the opportunities presented to assist you in your transition to a pro-social lifestyle.  He emphasised that you were considered to be not treatment ready.  The author went on to consider various potential conditions and I found that analysis useful in the sentence I will impose. 

26Your pleas of guilty have been entered early in this matter, which has a significant utilitarian benefit. I accept your pleas are indicative to some degree of remorse and contrition. 

27Returning to the objective gravity of the offending.  As I have said, they fall into the category of commercial burglary.  Primarily, the motivation was financial gain.  There may well have been peer approval or pressure as motivating factors.  The impulsivity of youth and perhaps a level of excitement, perhaps, were also contributing factors to your motivation. 

28The offending is extremely serious.  On the face of it, this is organised criminal activity at a disturbing level for young men such as you and your co-offenders.  The objective gravity of the offending as expressed in the Prosecution Opening and as depicted on the CCTV footage calls for punishment.  It calls for a sentence that will satisfy the need for general deterrence.  It calls for a sentence that will express appropriate denunciation. 

29In your case, a sentence directed towards specific deterrence is also called for.  I have taken into account the principle of totality.  You are currently serving a sentence of two months and 14 days' imprisonment.  You have also served other periods in custody over the course of this year.  The sentence I impose will be served substantially cumulatively upon the sentence you are currently undergoing. 

Sentence

30On all charges, I sentence you to an aggregate sentence of nine months' imprisonment in combination with an 18 month Community Corrections Order.  I impose an aggregate sentence of the charges as they form a series of offences of the same character and are obviously related. 

31I direct that eight months of the sentence be served cumulatively upon sentences you are currently undergoing. 

The Community Corrections Order is of 18 months duration.  You will be required to perform 200 hours of unpaid community work. 

You are to undergo treatment and rehabilitation programs to reduce your offending behaviour. 

You are also to be assessed for mental health treatment and rehabilitation.

You are to undergo drug assessment and treatment.  Up to 50 hours of treatment and rehabilitation programs can go towards satisfying the unpaid community work condition. 

I impose a Judicial Monitoring condition.  The first judicial monitoring hearing will be on 23 October 2020 at 9.30 am. 

32You should bear in mind that this sentence has a considerable aspect of it directed toward your rehabilitation.  You are not treatment ready as yet.  A period of imprisonment imposed whilst serving as punishment, serving the interests of general deterrence and community denunciation, also takes into account that observation.  I expect that you will be treatment ready at the time of your release and you will then be able to avail yourself of the opportunity.  I urge you to take the opportunity. 

33If you fail in complying with the Community Corrections Order or if you reoffend, you will back before me and my options will be considerably constrained.  You have already recently experienced what can happen for contravening a Community Corrections Order. 

34I declare that you have already served 73 days of pre-sentence detention, and this period is to be reckoned as time already served upon the sentence that I impose. 

35Pursuant to s.6AAA I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of 18 months' imprisonment with a non-parole period of 12 months. 

36I make the ancillary orders that are sought.  I will just get those now.  I make the order of 464ZF, subsection 2.  I make that order for a scraping of the mouth.  I make it because of the seriousness of the circumstances of the offending, prior convictions, the fact the orders - is it not opposed, Mr Smallwood?

37MR SMALLWOOD:  Not opposed. 

38HIS HONOUR:  That's right.  And I will make the order for compensation in the terms that they were sought.  I also make the disposal order.  In relation to the forensic sample order, Mr Moussa, it may have been explained to you, you will be required to provide a scraping from your mouth and you will be contacted about that.  I must warn you that if you do not comply or do not consent to the mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted.  Now, do you consent to the making of the Community Corrections Order? 

39OFFENDER:  Yes, sir. 

40HIS HONOUR:  Yes, all right.  Yes, look, I will impose a condition of supervision as well with that order, I did intend to do that.  I will make that clear that there will be a supervision condition as well as the Judicial Monitoring condition.  All right.  Now, that order will be prepared in a moment and then you will be asked to consider it and give your signature to it to give your consent.  All right.  I am signing that order and it will now be handed down to you and, Mr Smallwood, you can go down with him. 

41MR SMALLWOOD:  As the court pleases.  Mr Moussa has signed that order, Your Honour. 

42HIS HONOUR:  All right.  Now, are there any other matters for sentence?  With the cumulation and the pre-sentence detention, does it all make sense?  Sometimes they can be hard to work out how it all operates. 

43MR SMALLWOOD:  Your Honour, no, it's perfectly clear.  There are no other matters. 

44HIS HONOUR:  All right. Thank you everyone.  Thank you for your assistance. 

45COUNSEL:  If the court pleases. 

46HIS HONOUR:  You can be taken down now, Mr Moussa.  I wish you all the best. 

47MR SMALLWOOD:  If the court pleases. 

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