Director of Public Prosecutions v O'Neal
[2023] VCC 2140
•20 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02091
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| . |
| MARCUS O'NEAL RYAN O’NEAL RICHARD CHALHOUB |
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JUDGE: | HER HONOUR JUDGE SYME | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October 2023 | |
DATE OF SENTENCE: | 20 November 2023 | |
CASE MAY BE CITED AS: | DPP v O’Neal & Ors | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2140 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Attempt to pervert the course of justice – Varying involvement - Distinguishable degrees of moral culpability – Positive prospects of rehabilitation
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Semaan v The Queen [2017] VSCA 279; R v Buscema [2011] VSC 206 and R v Verdins [2007] VSCA 62.
Sentence: For M. O’Neal: 11 months imprisonment and Community Corrections Order of 2 years duration; For R. O’Neal: Community Corrections Order of 18 months duration; For R. Chalhoub: Community Corrections Order of 2 years duration.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. White | Office of Public Prosecutions |
| For Offender M. O'Neal For Offender R. O'Neal For Offender R. Chalhoub | Mr C. O'Bryan Mr A. Cameron Mr A. Marshall | Melasecca, Kelly & Zayler Angus Cameron Lawyers James Dowsley & Associates |
HER HONOUR:
1Mr Marcus O’Neal, you have pleaded guilty to one count of attempting to pervert the course of justice, namely, that at Melbourne between 16 June and 2 August 2022, with intent to pervert the course of justice, you did an act which had a tendency to so pervert the course of justice in that you:
(a) requested and obtained false documents, namely, falsified personal bank records;
(b) provided those abovenamed false documents to your solicitor; and
(c) instructed your solicitor to seek the withdrawal of then pending criminal charges against you, intending that the false documents would be accepted as genuine by Victoria police.
2You have also pleaded guilty to the related summary offence of committing an indictable offence, that offence, whilst on bail.
3Mr Ryan O’Neal, you have pleaded guilty to one count, a similar count of attempting to pervert the course of justice on 16 June 2022. With intent to pervert the course of public justice, you did an act which had a tendency to so pervert the course of justice in that you:
(a) provided your personal bank details for the purpose of facilitating the creation of false documents, namely, falsified personal bank records; and
(b) you did so in order to effect the withdrawal of then pending criminal charges against Marcus O’Neal, intending that the false documents would be accepted as genuine by police.
4Mr Richard Chalhoub, you have also pleaded guilty to one count of attempting to pervert the course of justice in that at Melbourne between 19 June and 29 June 2022, with intent to pervert the course of public justice, you did the following:
(a) you created false documents, namely, falsified bank records;
(b) you provided those false documents to Marcus O’Neal; and
(c) you did so in order to effect the withdrawal of then pending criminal charges against Marcus O’Neal, intending that the false documents would be accepted as genuine by Victoria police.
5The maximum penalty for attempting to pervert the course of justice is 25 years' imprisonment and for the summary offence of committing an indictable offence while on bail, the maximum is three months' imprisonment.[1]
[1]The alternative maximum penalty for the related summary offence of committing an indictable offence on bail is 30 penalty units.
6The charges are not standard sentence offences and there are no other penalties that would normally be imposed.
PRIOR CRIMINAL HISTORY
7Mr Ryan O’Neil, you have no prior criminal record. This entitles you to a consideration of leniency on the sentence to be imposed.
8Mr Richard Chalhoub, you have admitted prior offending in 2018/2019 relating to stalking offences and a breach of a Community Corrections Order (‘CCO’) which you were placed on in relation to that offending. It seems that a resulting further CCO was complied with. The nature of that offending allows some consideration of leniency with respect to this sentence.
9Mr Marcus O’Neal, as at the date of this offending, you had no prior convictions. However, your criminal record now includes two convictions for trafficking and possession of illicit substances and dealing with the proceeds of crime committed in circumstances that are relevant to the current offending, the most serious of which was committed well prior to this offence.
10You were placed on supervised community corrections orders in the Magistrates Court for the earlier offending in September and October 2022. You were on bail for those offences when you committed this offending. The fact that you had no convictions for any criminal matter up until this significant offending commencing in December 2021 will be taken into account as part of your overall narrative.
FACTS
11The facts relevant to the offending are as set out in the prosecution opening and not in dispute.
12By way of background; on 14 December 2021, police officers observed Mr Marcus O’Neal sleeping in the front seat of his work vehicle which was parked in North Melbourne. They observed numerous small, Ziplock bags scattered throughout the vehicle. They conducted a lawful search and located several different drugs of dependence and $62,385 in cash in various places in the vehicle.
13O’Neal, you were transported to the police station where, at about 6.16 am the same day, you engaged in a record of interview with police in which you admitted that the drugs of dependence were yours and that you had purchased them. When asked about the cash, you said that it was yours as well. You said that $49,950 of the money had been given to you by a friend to purchase a car and the balance of the cash was lawful income, which you had received for work as a plumber.
14At the conclusion of the interview, you, Marcus O'Neal, were charged with trafficking cocaine, various drug possession offences, and one count of dealing with property suspected of being the proceeds of crime, namely, that $62,385 in cash – and I will refer to these offences from now on as 'the December 2021 charges'. You were then bailed to attend the Melbourne Magistrates Court with your attendance fixed for 1 July 2022.
15About six months later, police attended your home address, Marcus O’Neal, in Flemington and searched the premises. They located various drugs of dependence and further proceeds of crime, telephones and other evidence. Marcus O'Neal, you were again charged with relevant offences – and I will call these 'the June 2022 charges'. You were later bailed to appear at the Melbourne Magistrates Court on 10 August 2022. At that time you were still on bail for the December 2021 charges.
16On August 2022, the solicitor representing you, Marcus O’Neal, sent an email to a prosecutor from Victoria Police as part of the case conference process in what was said to be an effort to resolve the December 2021 charges. It was this correspondence which was the culmination of the attempt to pervert justice.
17The email sent by the solicitor contained attachments, including: (i) a scanned copy of a Commonwealth Bank of Australia statement in the name of Marcus O’Neal for a Smart Access account, number ending in 353. This statement showed what appeared to be a $50,000 credit that had been transferred to this account from an account belonging to Ryan O’ Neal dated 29 October 2021, and appeared with the description of Money for Vehicle Purchase. It is also noted that there were five purported withdrawals of $9,800 throughout November 2021.
18Attachment (b) to the solicitor's email was a scanned copy of an ME savings bank account statement in the name of Ryan O’Neal for an account numbered ending in 748. This statement showed a corresponding debit for the transfer of $50,000 into a Marcus O’Neal account, including the words: Money for Vehicle Purchase.
19The transactions were highlighted in green. The documents aroused suspicions as to their validity.
20Marcus O’Neal's solicitor represented to the police as follows:
'Mr O'Neal instructs that the monies found in the vehicle were as follows: $50,000 was provided to him by his brother Ryan O Neal for the purchase of a car, bank documents showing this transfer, plus the withdrawals by the accused, will be provided. The police is further invited to contact Mr Ryan O'Neal to obtain a statement from him regarding that amount of money. The remainder was for cash jobs from his self-employed business. Invoices have also been provided by Mr O'Neal which will be provided to police …'
21After receipt of this explanation and copies of the bank statements, police investigation of phones removed in searches of Marcus’ properties earlier revealed a series of text messages between Marcus and Ryan referring to a plan to have copies of their bank statements altered, with a view to Mr Marcus O’Neal providing them to his lawyer and using them as described above, that is, as a defence to the 2021 charges. Texts revealed that on 16 June 2022, Ryan provided his bank details to accomplish this.
22Police further observed text messages between Marcus O’Neal and Mr Chalhoub in which arrangements were made for copies of altered bank statements to be produced.
23Between 19 and 29 June, Marcus O'Neal instructed Chalhoub to alter and prepare false documents showing the above transactions. He paid Chalhoub $1,000 to do so. These documents were prepared using a Google app and forwarded to Marcus for printing.
24After printing, Marcus instructed his then solicitor to use those documents as described above, with the desired result being to have the charges concerning the proceeds of crime withdrawn and the amount of approximately $62,000, which was up until then confiscated, returned to him. The solicitor complied with Marcus’ instructions.
25True copies of the statements from ME Bank and Commonwealth Bank of Australia were obtained by police from those banks. The transfer of $50,000 from the account of Ryan O’Neal into the account of Marcus O’Neal did not appear on either statement; nor did the withdrawals of $9,800 appear on the Commonwealth Bank of Australia account statement in the name of Marcus O’Neal.
RECORDS OF INTERVIEW
26On 18 August 2022, just a couple of weeks after these emails were sent, all three offenders were arrested and interviewed. Marcus and Ryan O’Neal made no admissions. Chalhoub admitted that he had known Marcus for about six months and at his request, and on payment of $1,000.00, he used photoshop and a PDF program to doctor copies of statements and then emailed them to Marcus. He made admissions as to his knowledge of the use those documents would be put.
27Pleas of guilty were indicated by all three offenders at an early stage, although pleas were not actually entered until 31 October 2023. All three of you were granted bail and there has been no pre-sentence detention.
OBJECTIVE SERIOUSNESS
28Each of you performed different tasks in the offending. Ultimately, the offending was instigated, orchestrated, and carried out by Marcus O’Neal, who was to be the sole beneficiary of the offending, save for a small payment by Marcus to Chalhoub.
29Marcus O’Neal, you procured falsified bank statements by convincing others to do activities on your behalf. You provided them to Victoria Police through your solicitor, whom you instructed to seek the withdrawal of charges, on the basis of the information contained in the fraudulent statements.
30You understood that none of the information was true. It is not in dispute that your intention was that the statements would be accepted by Victoria Police as genuine, who would then therefore withdraw the charges in the criminal proceedings against you, resulting in the money, that is, the $62,385 the subject of the charges, as you have admitted, the proceeds of crime, would then be returned to you.
31Ryan O’Neal, you provided your personal bank details to your brother for the purpose of procuring and creating the false statements, knowing that the statements would be used by him to have charges against him withdrawn and the money the subject of those charges returned to him. There is no evidence of direct benefit anticipated for you.
32Richard Chalhoub, you acted on instruction from Marcus O’Neal and in exchange for payment of $1,000.00 from him, created the false bank statements and provided them to Marcus O’Neal in order to effect the withdrawal of the then criminal charges against him and the return of money that was the subject of the charges.
33Each of you acted with the intention of perverting the course of justice.
34There is no dispute that the offence of attempting to pervert the course of justice is a serious offence, as evidenced by the significant maximum penalty available to the court on conviction.
35The Victorian Court of Appeal has set out useful parameters for assessing objective gravity. In the case of Semaan v The Queen [2017] VSCA 279, Santamaria JA quoted Nettle JA in another case as follows:
'Offences of attempting to pervert the course of justice are conceived of as striking to the heart of the justice system and, therefore, as ordinarily necessitating a custodial disposition.'
36The court then observed some circumstances which broadly can bear upon an assessment of the nature and gravity of particular offending, and so on the sentence to be imposed.
37In assessing the objective seriousness of the current offending, the following are relevant to increasing the objective seriousness of this offending and an individual participant’s involvement in the offending. I have used the observations of Nettle J in the case of Buscema[2] as a guide.
[2] R v Buscema [2011] VSC 206.
38Firstly, 'the consequence which the offending was calculated to avoid.' In the context of this case, the consequence to be avoided was a conviction for Marcus for a serious criminal offence who was to be the sole and significant beneficiary of the offending.
39Second consideration, 'the time for which the deception was maintained and whether it was actively repeated or persisted in or merely allowed to continue.' In the context of this case, Marcus was involved in contemplating and directing the offending for a period of total over six months, from the time of his interview with police when he first came up with a false idea, until he instructed his solicitors to forward the false documents and explanation.
40Of course, the initial lie to police may have been made without any precontemplation of the final acts - the charge that you have pleaded guilty to of course has a different time limit - but it retrospectively, supposedly, led credibility to the final plan. Marcus persisted in the plan and several steps involved in bringing the plan to conclusion, which was the communication of the false information to police. Ryan O'Neal and Chalhoub were each involved for only days and each had only a single task.
41The next consideration is 'whether the deception involved some other person, either as an accomplice or as a victim.' The primary instigator and motivator for the offending was Marcus. Ryan was persuaded by his brother to participate. I can infer his reason for doing so was out of some kind of misguided family loyalty. Chalhoub, you were paid a relatively small amount for the manufacture of the false documents. Each were directed to perform a task in the deception.
42The next consideration is 'whether the offence was spontaneous or premeditated.' The offence was premeditated over several specific events by Marcus, over an extended period. The planning, it can be inferred, followed what I accept was, probably, an initially spontaneous lie to police in December 2021. However, thereafter, the planning for deception occurred over some weeks or months with the intention of avoiding conviction and confiscation of the proceeds of crime - a significant amount of money. The planning evolved to include his brother and his friend, and finally, his solicitor in the deception.
43The observation that there was 'no actual deception achieved' and 'no threat or violence was involved' is a lack of aggravating circumstances rather than a mitigating consideration, but I acknowledge it.
PERSONAL CIRCUMSTANCES AND BACKGROUND
44Mr Marcus O’Neal and Mr Ryan O’Neal, you are brothers both born in December 1986 and at the time of the offending you were 35 years old. Your family background is unremarkable. You enjoy close family support. Family members provided references as to character and offered support for the future. They were in court, and are in court again, to personally support you both throughout the proceedings.
Marcus O’Neal
45Marcus O’Neal, in your self-report to report writers contacted for the purpose of these proceedings, you advised them that you did well at school academically and at sports throughout school years. This, however, was marred by a traumatic brain injury occasioned in a sporting context, and I will refer to this issue later.
46Notwithstanding this head injury, you completed post-secondary education and obtained qualification as a plumber when you were aged 24 in approximately 2010, on my calculation. You are well qualified in several areas of specialised plumbing.
47You report that your substance abuse was significant, including abuse of alcohol and ingestion of illicit substances such as speed, cocaine and MDMA. They were a regular weekend habit, I am told, in your 20s, which in hindsight you seem to accept resulted in some anxiety issues.
48Notwithstanding this, you continued your successful employment until you say about 2017 or 2018 when you were about 31 years of age. Submissions from counsel in the current proceedings suggests that even in 2021, you were working as a self-employed plumber and receiving some income from that employment. You were certainly well qualified and capable of doing so.
49You report that from about 2018 your substance abuse escalated in the context of a poor personal relationship, which you blame for your then presentation and escalating substance abuse. You, however, report that cocaine use commenced when you were aged 22, and I note that occurred before your final qualification as a plumber which I note was when you were 24. By 2018 you report using significant quantities of cocaine and other substances, including alcohol and what you refer to as 'performance enhancing drugs', which are, in reality, various forms of steroids.
50You blame a different poor relationship in early 2020 for further descent into substance abuse and apparently some of the behaviour which resulted in the December 2021 charges.
51You say that this second poor relationship ended in about December 2021, but you continued to engage in multi-day substance abuse up until your arrest in June 2022. You told the report writer that you supported yourself financially through illegitimate means in that time and engaged in minimal plumbing work.
52Otherwise, your personal circumstances are that you are single and residing in a property rented from your parents. You say that you have returned to plumbing work as a sole trader and are currently doing well.
53The report provided by Dr Matt Treeby addresses the issue of your neuropsychological functioning consequent to a traumatic brain injury which you sustained in about the year 2002.
54Dr Treeby recites the findings that were made at the time of your injury and notes that for more than a year after that injury, you were noted to demonstrate significant cognitive problems and behavioural problems alongside particularly poor concentration and memory. You, however, completed school. It is noted that you declined further assistance on turning 18.
55You again sought medical assistance and reports but not until after your arrest for matters in 2022. You report a history of panic attacks at times, but it is noted that these also seem to be associated with your stimulant misuse. Dr Treeby also reports, although not in a diagnostic sense, that you report body image problems which you blame on childhood difficulties.
56Your mother’s letter and report to Dr Treeby support a change in your behaviour after the brain injury which your mother also blames for your drug use. You blame poor relationships for your poor behaviour. I note that your mother is very supportive but not necessarily, of course, objective.
57Dr Treeby concludes that as a result of that injury more than 20 years ago, you meet the criteria for a mild neurocognitive disorder. He observes that you have some degree, which is unspecified, of executive dysfunction. He suggests that this executive dysfunction can compromise your ability to make well-reasoned and appropriate judgements in some circumstances.
58Dr Treeby suggests that: 'This would have been evident at the time of the alleged offending', although he provides no support for this extension of his opinion. My observation is that there was a degree of reasoning and forethought to this offending, it just happened to be entirely self-focused and criminal.
59Dr Treeby also observes that your presentation is consistent with an adjustment disorder with mixed anxiety and depression at times. He recommends appropriate intervention on a continuing basis.
60I note that Dr Treeby refers to your significant use of substances as being a form of, 'self-medication', against negative emotions. I note you refer to it as weekend binge partying. I suspect the truth is perhaps somewhere between the two. There is no reasoned argument supporting your substance abuse being directly connected to your brain injury. There is no doubt, however, that rehabilitation from your substance abuse is certainly desirable.
61Dr Treeby observes that you would find a custodial term more onerous than somebody in good health due to your acquired brain injury and possible PTSD presentation associated with the circumstances of that injury.
62His report recommends a number of clinical interventions and I am told that you were willing to make those arrangements with or without supervision, but not a great deal has occurred.
63The related report prepared by psychologist Luke Armstrong suggests an array of personality difficulties perhaps compounded by suggested PTSD symptomology. Mr Armstrong’s view suggests a complex array of personality disorders including a form of personality disorder and features of narcissism. He explains in his report how this may result in poor choices of partners, a need to seek approval and admiration, and a preoccupation with your own appearance. There is no suggestion that this is associated with any cognitive impairment.
64Mr Armstrong reports that you have engaged in drug and alcohol treatment since July 2022. I note that this offence continued until 2 August 2022.
65You report, and I accept, that you have engaged in successful and continued counselling. Mr Armstrong recommends ongoing treatment for the foreseeable future, considering the extended number of years your addiction has existed. He recommends continued urine testing to ensure that you maintain a substance free presentation, and he further recommends intensive outpatient treatment to assist with relapse prevention in the fulness of time.
66Mr Armstrong makes an observation about your potential vulnerability in custody. I suggest that the corrective services have copies of both reports, and I will seek counsel and Mr O'Neal's consent for same and consider that when assessing and classifying your custodial placement.
67It is submitted by your counsel that your moral culpability for the commission of this offence is reduced as a result of your acquired brain injury and the observations of Dr Treeby quoted above are said to support this. I reject this proposition.
68In the case of Verdins,[3] the Court of Appeal identified six ways that mental impairment may be relevant for sentencing:
[3] R v Verdins [2007] VSCA 62.
69That is, it may reduce an offender’s moral culpability and so affect what is considered to be just punishment and lessen the need for denunciation.
70It may have a bearing on the kind of sentence that is imposed and the conditions upon which it should be served.
71General deterrence may be moderated or eliminated as a consideration depending on presentation and symptoms.
72Next, specific deterrence may be similarly moderated or eliminated in the same circumstances.
73Next, the existence of an impairment at the time of sentencing, or its reasonably foreseeable recurrence, may mean that a specific sentence may weigh more heavily on an offender than it would on a person of normal health.
74And next, if there is a serious risk that imprisonment will have a significantly adverse impact on the offender’s mental health, this may be a mitigating factor.
75These principles or considerations may moderate both the minimum term and the head sentence, but they are exceptional and should not be invoked in routine cases.
76The first Verdins principle says that if a mentally impaired offender is less morally culpable for their actions, then it may not be appropriate to punish them as harshly as someone who is fully responsible.
77An offender’s moral culpability may be reduced if, at the time of the offending, their impairment reduces their ability to exercise appropriate judgment, make calm and rational choices, think clearly, or appreciate the wrongfulness of their conduct; or make them disinhibited; or obscured the intent to commit the offence; or contributed causally to the commission of the offence.
78Again, this list is not exhaustive, it is descriptive rather than prescriptive.
79The effect of an impairment on moral culpability is a matter of degree. A court should consider the gravity of the offending and, with the assistance of expert evidence: the offender’s conduct before, during, and after the offending in order to determine the extent that the impairment contributed to the offending.
80The relevant question is whether the evidence establishes that the impairment contributed in a way that made the offender, that is, you, 'less blameworthy as a result'. This is a discretionary assessment with no fixed guidelines, although the High Court has said there will be usually such a link if an offender is intellectually disabled – and I am referring of course to Muldrock's case.[4] However, in Muldrock's case, the level of disability was highly significant, as opposed to the level in this case.
[4] Muldrock v The Queen [2011] HCA 39.
81I have read with care the Court of Appeal case of Tran v The Queen, a 2012 VSCA decision.[5] I accept that reduced moral culpability for offending can be established in a variety of ways and there are a variety of ways in which impaired mental functioning might reduce moral culpability.
[5] Tran v The Queen [2012] VSCA 110.
82There is nothing in Dr Treeby’s report to suggest that the extended and planned nature of this offending for a period of a number of weeks, or up to nearly a couple of months, in which several different steps were required and which involved convincing others to participate in the offending behaviour, had anything to do with your impaired impulse control or your ability to exercise appropriate judgement.
83Even now in an apparently sober state, you report to Mr Armstrong that your engagement in this fraud was a decision that you made to maintain your image.
84I observe that there are frequently many complicated reasons for criminals to commit the offences that they do. There is no doubt that one of your intentions was to avoid conviction for the December 2021 charges and have the illicit funds returned to you, but also to maintain your apparent prosocial image to your family.
85While this may assist those who will seek to counsel you in due course, it does not reduce your moral culpability for the commission of the offence. By the time you committed this offence, you had committed serious drug offences and on your own report, were hopelessly addicted to an array of substances and therefore, no longer working.
86Your counsel submits that all six limbs of the Verdins decision are enlivened on account of your acquired brain injury and have referred to each of them above. I have dealt with the submission that your moral culpability is reduced and I have rejected that submission. Your cognitive ability in your early years, up until substance abuse became a way of life, shows that you are well capable of obtaining qualifications, running your own business, and participating as a functioning member of the community.
87I accept that your presentation and the consequence of your previous acquired brain injury, and possible PTSD presentation, may make imprisonment more burdensome for you than someone without these presentations. This will have an ameliorating effect on the sentence imposed.
88However, there is no evidence that imprisonment will have a significantly adverse impact on your mental health, and again, I urge corrective services to receive and read carefully the reports prepared on your behalf in order to assess the appropriate placements for you. I do not find that the other Verdins limbs are particularly relevant to a consideration in your sentence.
89I have some concern that notwithstanding your plea of guilty, you seem to avoid accepting full responsibility for your behaviour. You blame your father for some of your earlier life attitudes and presentation and you blame your first serious relationship for substance abuse escalating and your 2020 relationship for the immediate cause of the December 2021 charges.
90You are now 36 years of age. It is well beyond time that you stopped blaming others for your misbehaviour and accept that this offending period was a series of choices made by you. They are bad and criminal choices, as you well knew at the time. I suggest personal acceptance of your own responsibility for these choices is necessary for you to progress.
91As part of the sentencing process, I ordered a report from corrective services as to your suitability for supervision which I clearly indicated would be on your release from a custodial sentence on a specific day.
92As was obvious from my comments during the plea process, I am of the view that considering your enhanced involvement in this offending compared to your co-offenders, the serious nature of the offending, your involvement in other offending within the same timeframe as this offending, and the need for general and specific deterrence with respect to offences such as this, a short term of imprisonment is required.
93However, at the conclusion of that short term of imprisonment, it is in your best interests and the best interests of the community that you receive significant support from corrective services and supervision in the areas they recommend.
94They are: a mental health assessment and consequent requirements to attend therapy and counselling; further drug treatment and rehabilitation of the type you have undergone recently; unpaid community service work (70 per cent of which can be credited with that therapy); and general supervision which will focus on directing you to prosocial activities and lifestyle changes.
95In making a combined sentence order, I am allowing, and I accept, that rehabilitation has commenced. I urge you to maintain sobriety while you are in custody and access any available support programmes to ensure that when the imprisonment part of your sentence is complete, you can again return to the community and accept the supervision that will be offered.
96Mr Ryan O’Neal, as noted above at the time of the offending you were also 35 years of age.
97You have no prior criminal offending recorded. It is reported and supported by your referees that you have enjoyed an excellent employment history and a supportive family. Your co-offender, Marcus, is your twin brother. You have an older sister. You attended school to Year 12 and participated in a wide variety of sports.
98After leaving school, you completed education and then an apprenticeship in the electrical field until you became self-employed as a registered electrical contractor. In 2021, you suffered a serious workplace accident, involving facial trauma and a loss of consciousness. As a result of the accident you underwent multiple surgeries and are now in receipt of Workcover payments. It is noted that in 2022, you were still undergoing various surgeries. This offence was committed in June 2022, apparently at the behest of your brother.
99You have other medical complications as a result of previous injuries. Further surgeries are anticipated.
100As a result of past injuries, including your most recent injury, you suffer chronic pain. I am told that you have previously struggled with substance abuse issues, but I have little further information about that, apart from what your counsel said in his submissions. Your referees do not refer to it but you report abstinence from any substances, including alcohol, for over a year. Your self-report to the CCO report writers discloses alcohol misuse at the time of this offending and cocaine use on a sporadic basis, which is of concern and the subject of their recommendations.
101Your life trajectory currently has you involved in divorce proceedings with your wife of many years, but I note that she is still supportive. You are attempting retraining as your recent injuries do not currently allow you to return to full-time work as an electrical contractor. You have applied yourself well to employment and prosocial activities in the past. There is good reason to accept your future will be productive in a different area.
102As noted above, your involvement in this offending is minimal compared to your co-offender. You were not expecting to receive any direct benefit from the offending, apart from showing loyalty to your brother. You are entitled to leniency for your prior good character.
103Your counsel has suggested that the matter could be dealt with without conviction. I do not propose to accede to that request. The offending is far too serious for that. However, considering your role in the offending, I am of the view that a substantial period of supervision with appropriate work hours tailored to your current abilities would represent just punishment including deterrence in the circumstances.
104I have now received that report from corrective services as to your suitability for supervision and your observed requirements and suggested areas where you may be supported. Alcohol and drug treatment and rehabilitation is recommended, as is supervision, which will focus on lifestyle issues and potentially, guidance with respect to mental health if assessment suggests this.
105You are suitable for the completion of unpaid community service work, but in any event, hours ordered may be completed by the way of you attending required counselling and rehabilitation. I find it is in the best interests of the community that you be required to complete counselling in directed areas of need.
106Mr Richard Chalhoub, you were born in October 1972 and you were aged 49 at the time of the offending. You have prior convictions, as I noted, in 2018/19 for unrelated stalking and damage offences. You were previously dealt with by way of CCOs which were eventually successfully completed.
107I am told you were born in Australia to Lebanese parents. Your father died in 2019 and you are effectively estranged from family members. You were married, now divorced, and have a child now aged 15 years with whom you maintain contact. I am told you are temporarily residing with your estranged wife
108You attended high school and completed Year 12. You report problems with English reading. You have attempted accounting and hospitality courses and worked part-time as a security officer and, more recently, occasional work as a cafe assistant.
109I was advised by your counsel that up until you suffered significant health problems in 2017, while you were working at the finance industry, you were able to successfully derive income sufficient to purchase a house and to support yourself. I was not provided with any information concerning this, but I accept it.
110Your medical reports show that you are presently suffering from a neurocognitive ailment evidencing an array of mild impairments in your cognitive presentation. This presentation is currently subject to ongoing investigation. In addition, you have been experiencing symptoms of a major depressive disorder for many years, resulting, it is reported, in you requiring significant sleep on a daily basis. It is apparently, as yet, unknown, if these two medical conditions are related.
111You have, I am told, applied for NDIS assistance. It has been recommended that you ought be eligible for a disability support pension as a result of your various cognitive, mental health and physical difficulties. These applications for ongoing support are unfortunately not always consistent. I am told that you reach out for assistance when you need it.
112Reports provided by The Alfred Mental and Addiction Health Service observe limitations in your cognitive abilities including impairments to your executive function and working memory, in addition to your reading difficulties. Your mental health is reportedly compromised by diagnosed chronic depression.
113You report that at the time of the offending, you were distressed by many features in your life, some of which are still beyond your capacity to alter. You report that you had known Marcus for a short period and did the work requested by using a freely available program on Google. The money you received was effectively spent on school fees for your daughter. When interviewed by police, you made full admissions.
114I accept that your involvement in this offence is at the lower end of the scale of objective seriousness, notwithstanding the fact that you have received payment for the work you did and that you understood largely why you were doing it.
115Your current presentation is of concern as to your welfare, certainly, in a custodial setting if that were to be a sentence consideration. I am not satisfied, however, that such a disposition is warranted and the only appropriate disposition.
116I further note that you and your counsel had been prepared for these sentence proceedings for many months and the delay occasioned by your co-offender’s actions have caused concern for you.
117Given your generally prosocial presentation and your tangential personal involvement in the offending, I am of the view that something other than a custodial sentence can address all of the sentencing criteria.
118I have now received a short report prepared by corrective services in relation to your suitability for supervision and your expected responsivity to that supervision. I am satisfied that in the circumstances of your current position, supervision will be of some assistance to your ultimate rehabilitation and can assist you in not reoffending in the future.
119The report further recommends that a condition be imposed requiring you to address your mental health needs via treatment. Some of the work hours that will be ordered can be credited if you attend such rehabilitation or counselling. Supervision is recommended and I expect that you will benefit from that support.
PLEA
120Each of you entered a plea of guilty at a relatively early stage notwithstanding some delay in the plea hearing being reached, and I do not know why that was. An early plea of guilty can sometimes be evidence of remorse. I have some evidence that both Marcus and Ryan are remorseful for their involvement in these proceedings, and I accept that. Mr Chalhoub made full admissions when first spoken to by police and I accept that that is also some evidence of remorse.
121Remorse is considered to be a useful indicator of, or a precursor to, rehabilitation.
122In addition, I note that an early indication of plea has assisted the prosecution in that preparation was not required for trial, and as such, there is some general benefit to the administration of justice.
PURPOSES OF SENTENCING
123It is trite to note that sentencing considerations such as deterrence, denunciation, and the protection of the community, often pull in opposite directions, particularly, with the requirement to promote rehabilitation and the imposition of a just punishment.
Parity
124Each of you come before the court having performed a different role in the commission of this offence, for different reasons. As stated above, Marcus O’Neal was the instigator and largely, the sole-beneficiary of this offence. He was involved in the offending over a significant period of time and directed the others in their tasks.
125Ryan O’Neal was far less involved in the offending. His culpability is relatively low. Chalhoub’s involvement was more direct but covered a limited period of time. His mental health and physical difficulties are of concern. His cognitive and physical presentation provide sufficient evidence for an objective concern of the consequences of a significant sentence.
126So while generally it is the case that co-offenders receive consistent sentences, Marcus O’Neal has been significantly involved in substance abuse-related trafficking offences between December 2021 and June 2022. That offending was directly related to this offending. He was then involved in this offending for a period in excess of six weeks. Accordingly, the differences in sentences that will be imposed today are well justified.
SENTENCING PRACTICE
127I have noted submissions from counsel concerning sentences imposed for similar matters. It is trite to note that each offence must be dealt with on its own set of circumstances. The cases for which only CCO orders were made, in my view, relate to significantly less serious offending and/or significantly reduced moral culpability, resulting from significant mental health issues informing the offending behaviour.
128It must be noted that over $60,000 sought to be obtained from this offending was, it now appears to be admitted, the proceeds of crime.
129Where counsel have submitted that each of the offenders should receive a further discount for an early plea of guilty, I note that the delays in the Victorian County Court are no longer at a level where they were when the Worboyes decision was handed down.
130The delays in this matter were not caused by court delays, but I am told by one of the offenders seeking alternative representation. The delays have allowed each of the offenders to improve their position within the community and make a better presentation with respect to prospects of rehabilitation.
131Mr Chalhoub is still in a difficult housing and personal position but both Ryan and Marcus have taken steps to show the court that their prospects of rehabilitation are good. Ryan O’Neal has returned to some work and is sensibly seeking retraining.
132Marcus O’Neal has apparently recognised the need for continued rehabilitative and relapse prevention assistance and hopefully, his family now understands the full extent of his long-term substance abuse issues and are therefore in a better position to provide meaningful support in the future.
133It could be said then that each of the O’Neal brothers have, to some extent, benefited from the delay. I am sure, however, that each of the offenders are anxious, and I accept that.
134You are each entitled to a benefit from an early plea.
135I am now in a position to sentence you each. You can remain seated, gentlemen, I want you to listen.
SENTENCE
136Marcus O’Neal, for the offence of attempting to pervert the course of justice, I sentence you to a combined sentence of 10 months' imprisonment and a community corrections order of two years, to commence at the expiration of that term of imprisonment.
137The CCO conditions will include unpaid community service work (s 48C) 100 hours, 50 per cent – I think I said 70 per cent earlier, that was an error – 50 per cent of which may be credited by you undertaking counselling as directed. Supervision (s 48E), treatment and rehab for drug and mental health issues, and 48D(3) and E. This is the base sentence.
138For the offence of commit indictable offence whilst on bail, I sentence you to a term of imprisonment of two months. I direct that one month of this sentence is to accumulate on the base sentence.
139The total effective sentence, therefore, is 11 months' imprisonment, followed by a supervised CCO of two years.
140Ryan O’Neal, for the offence of attempting to pervert the course of justice, I sentence you to a community corrections order of 18 months. As part of your Corrections order, you will be required to complete 150 hours of unpaid community service work, 80 per cent of which can be credited by you undertaking treatment and rehabilitation with respect to alcohol counselling and mental health treatment. Supervision is required That is s 48C, 48D(3)(b) and (e) and 48E.
141Richard Chalhoub, for the offence of attempting to pervert the course of justice, I sentence you to a community corrections order of two years. There will be conditions that you complete unpaid community service work, 75 hours, 100 per cent of which can be credited by undertaking treatment and rehabilitation in mental health and supervision per s 48C, 48D and 48E.
142Pursuant to s 6AAA of the Sentencing Act 1991, had it not been for your pleas of guilty, I would have sentenced Marcus O’Neal to two years and six months' imprisonment with a non-parole period of 18 months; Ryan O’Neal to a community corrections order of three years' duration with 300 hours unpaid community work, and Richard Chalhoub to a community corrections order of three years with 100 hours unpaid community work.
143Mr Prosecutor, any questions?
144MR WHITE: No, Your Honour, thank you.
145HER HONOUR: Anybody else, any questions?
146COUNSEL: No, Your Honour.
147HER HONOUR: I have those CCOs ready for signing now, I will just sit here quietly, my associate has those ready to sign. And then I understand there's no pre-sentence detention for Marcus, is there?
148MR O'BRYAN: No there's not, Your Honour.
149HER HONOUR: That sentence will then commence today.
150MR WHITE: As Your Honour pleases. Do you want to assist your clients, I'm happy if you do that.
151MR MARSALL: Yes, I wonder if I may, Your Honour.
152HER HONOUR: It might be easier, yes. Yes, leave the bar table and go and assist them, each of you.
153MR MARSHALL: Thank you.
154HER HONOUR: Give it to the barristers and they can discuss it with their clients. They are just the community corrections orders conditions that I have spoken of already. Mr Marshall, I note that your client has a difficulty with reading English, I'm happy for you to take your time and read it to him. It's written in English and we're asking him to sign it - - -
155MR MARSHALL: Yes, thank you, Your Honour - - -
156HER HONOUR: I just realised that that's what I was doing for you.
157COUNSEL: Thank you, Your Honour.
158HER HONOUR: Thank you. Mr Chalhoub will be required to report to the Sunshine CCS within 48 hours - - -
159MR MARSHALL: Yes, I've explained that - - -
160HER HONOUR: And Mr Ryan O'Neal to report to South Morag within 48 hours.
161MR MARSHALL: One other matter, Your Honour. With respect to the (indistinct) which we were unable to – or which was adjourned initially in June, the request was made by my friend's instructors, as I understand it. We only received it effectively two days before the time and the prosecution asks that we also join in on the basis that it's easier for - - -
162HER HONOUR: Sure, I understand that. I know that and I have referred to that.
163MR MARSHALL: And will Your Honour grant a certificate under the appearance - - -
164HER HONOUR: I suppose. Okay, sure.
165MR MARSHALL: Thank you, Your Honour.
166MR WHITE: I don't seek to be heard on that, Your Honour.
167HER HONOUR: You don't seek to be heard? Okay. I am not suggesting that that adjournment was inappropriate or improper in any way, it happens.
168MR MARSHALL: Yes. It's certainly not put that way and that was why it was agreed to.
169HER HONOUR: Corrective services – Marcus is the gentleman in the middle and he's going into custody now, the other two have signed their documents and they can be free to go. We'll adjourn now.
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