Director of Public Prosecutions v Sobh
[2024] VCC 241
•7 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-01583
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAM SOBH |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 & 7 March 2024 |
DATE OF SENTENCE: | 7 March 2024 |
CASE MAY BE CITED AS: | DPP v Sobh |
MEDIUM NEUTRAL CITATION: | [2024] VCC 241 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Theft - cause injury recklessly - possess drug of dependence
Legislation Cited:
Cases Cited:
Sentence:33 days' imprisonment plus 2-year CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. McCowan | Office of Public Prosecutions |
For the Accused | Ms M. Greener | Emma Turnbull Lawyers |
HIS HONOUR:
1Sam Mohamed Sobh, you pleaded to a charge of theft for which the maximum penalty is imprisonment for 10 years, to an offence of causing injury recklessly for which the maximum penalty is imprisonment for five years, and to possession of a drug of dependence for which the maximum penalty is imprisonment for one year.
2You have admitted a criminal history which goes back to 1990 and contains a number of offences involving dishonesty trafficking in methylamphetamine and possession of drugs of dependence including methylamphetamine. There are also offences involving violence.
3The prosecution has tendered a written outline of prosecution opening for sentence indication which has become the summary of prosecution opening for the plea hearing, and which sets out in short compass the facts relating to your offending.
4The offending occurred on 28 March 2023, into 29 March 2023 and also encompassed 24 April, being the date on which you were arrested.
5During the evening of 28 March 2023 your victim attended the Knox Club in Wantirna South, where he was playing the pokies in the gaming room. He was fortunate enough to win about $1,400. You went to the club at about 11.40 pm, approached him in the gaming room and had some conversation with him. You asked him whether he had had any luck. He did not disclose the amount of money that he had won but indicated to you that he had had some luck.
6When the club closed you asked the complainant to drive you to the Boronia Club. He did so. You both arrived at the Boronia Club and entered the gaming room. Your victim continued to play the pokies at the Boronia Club and lost some of the money that he had won earlier in the evening. He got to a point where he had about $600 left in his wallet.
7During the early hours of the morning he decided to leave the club. You asked him for a lift to the bus stop. As he was driving, you asked to be let out at a commercial premises in Boronia Road, Boronia. Before you got out of the vehicle there was something of an argument between you and your victim.
8You punched your victim in the right cheek, causing bruising and a small cut. Following the argument you grabbed your victim's wallet, which contained about $600, took the money from the wallet and threw the wallet back into the car before you left.
9Your victim then attended the Boronia police station at a little after 2.30 in the morning of 29 March 2023.
10You were later identified by a photograph identification at the Knox Club and from CCTV at both the Knox Club and the Boronia Club. You were arrested on 24 April 2023 at the Heidelberg railway station. When you were arrested three small bags containing methamphetamine were located on you. They are the subject of Charge 3 on the indictment.
11When interviewed by police you made admissions as to the possession of the methamphetamine and made no comment to the other allegations.
12Your counsel provided me with an outline of submissions for sentence indication which became the submissions on the plea hearing.
13I was told that you were 49 years of age at the time of the offending and now are 50 years of age. You have two children aged 16 and 14 and quite recently had a third child born in February of 2024. You have the support of your mother and five brothers aged between 28 and 54. Your father passed away about two years ago and you plan to live with your mother upon your release.
14You are serving a sentence at the moment for other matters, and I am told that that sentence involves not only a term of imprisonment but also a community correction order. You are due for release in the next week or so and your plan is to live with your mother upon your release.
15You completed schooling up to Year 10 before working in various labouring and construction jobs. You were last employed in 2022 and prior to your remand in custody, you were receiving Centrelink benefits.
16You have in the past been diagnosed with ADHD and PTSD. You have a history of trauma when aged 13 you visited Lebanon with your mother and two brothers in 1985. You were trapped there by the war that was taking place and you were unable to leave the country for a period of six months. As a result of that, you suffered trauma to the point of being diagnosed with Post Traumatic Stress Disorder.
17Your counsel pointed to the fact that your offending was spontaneous and not premeditated. It followed a disagreement with your victim. The injuries to your victim were relatively minor, there was no other aggravating feature in the offending.
18You have had a lengthy history of substance abuse which dates back to age 16 and escalated in your early 20s to a point where, prior to being remanded in custody in relation to these matters, you had been using 3 grams of methamphetamine and 5 grams of cannabis on a daily basis.
19You were granted CISP bail on 26 May 2023 in relation to these matters and it seems that you have cooperated with the CISP program to a significant extent, if not fully committed to the assistance you were being offered.
20To your credit you have pleaded guilty to these matters and by doing so you have accepted criminal responsibility. You are to be given credit not just for that, but for the utilitarian value of your pleas of guilty.
21You have been the subject of a significant number of community correction orders in the past and you successfully completed six out of 10 of those orders.
22As I indicated at the sentence indication hearing, it seemed to me that your counsel's submission that a sentence involving a term of imprisonment totalling 33 days coupled with a community correction order was somewhat lenient given the nature of your offending. However, given that you will have been in custody for about three months in relation to other matters, your counsel urged me to look to the totality of the imprisonment as some support for the sentence that she was inviting me to impose.
23I indicated during the course of that hearing that I was inclined to accede to that submission, but that it should be noted that you would likely be required to do a significant number of hours of unpaid community work.
24I could not proceed to sentence at that stage until I had received a community correction order assessment outcome report, and given that one of the matters that were identified as requiring attention was treatment and rehabilitation for mental ill health, you were not just assessed by community corrections but also by Forensicare, for suitability for an order which included a condition that you submit to treatment and rehabilitation for mental health.
25Having received favourable reports from each of those sources I am satisfied that the sentence indication that I had given is an appropriate one and I can now proceed to sentence you accordingly.
26Sam Mohamed Sobh, on the charge of theft you are convicted and sentenced to imprisonment for 33 days.
27On the charge of causing injury recklessly you are convicted and sentenced to imprisonment for a period of 33 days.
28On the charge of possession of a drug of dependence you are convicted and sentenced to imprisonment for 33 days.
29Each of those sentences will run concurrently, meaning that the total effective sentence is 33 days. You will not be required to serve any further term of imprisonment under the order that I am making.
30It is recognised that you are still in custody. However, subject to your consent to be placed on such an order I also sentence you to a community correction order for a period of 18 months, which will commence upon your release from custody. In addition to the mandatory terms, which I will go to in a minute, you will be required to complete 200 hours of unpaid community work. I am prepared to permit you to offset 100 hours of treatment and rehabilitation satisfactorily completed against that 200 hours. So subject to you satisfactorily undertaking treatment and rehabilitation, you will only be required to do 100 hours of actual community work.
31In addition to the treatment and rehabilitation for mental health there will be a condition that you be the subject to an order for treatment and rehabilitation for drug abuse and for programs to reduce your risk of reoffending. You will be subject to supervision during the 18 months for which the order is in force.
32I need to go through the terms of the order with you.
33Firstly, the period of the order will be 18 months and it will commence upon completion of your current term of imprisonment.
34You will be required within two clear working days of your completion of that sentence to report to the Reservoir Community Correction Services at Ground Floor, 909 High Street, Reservoir, Victoria 3073, i.e. within two clear working days after the commencement of the order.
35The terms of the order which apply to all community correction orders in addition to that one that I have just outlined are that:
i.You must not commit another offence for which you could be imprisoned during the time that the order is in force. And I need to add to that explanation that if you were to commit another offence punishable by imprisonment during the period which the order is in force, you are likely to be brought back before this court, probably before me, and in addition to any sentence that might be imposed for the offence that puts you in breach, you can also be re-sentenced for these matters, which may well involve a return to prison to serve a term additional to the 33 days, the period of this sentencing order.
ii.You must comply with any obligation or requirement prescribed by the Sentencing Regulations - they include things like not turning up to supervision appointments whilst drunk or drug-affected.
iii.You must report to and receive visits from the Secretary of the Department of Justice or his or her delegate.
iv.You must report to the Community Corrections Centre within two clear working days of the order starting, and I have indicated that already.
v.You must let a Community Corrections officer know within two clear working days of you changing your address or job.
vi.You must not leave Victoria without first getting permission to do so from the Secretary of the Department of Justice or his or her delegate.
vii.You must obey all lawful instructions from, and directions of the Secretary of the Department of Justice or his or her delegate.
36In addition to those terms:
i.You must perform 200 hours of unpaid community work over the period of 18 months, as directed by the Regional Manager. And I order that 100 hours of treatment or rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
ii.If you fail to comply with this order, the Secretary of the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act 1991.
iii.You must be under the supervision of the Community Corrections officer for the period of 18 months during which the order is in force.
iv.You must undergo assessment and treatment including testing for drug abuse or dependency, as directed by the Regional Manager.
v.You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the Regional Manager.
vi.You must participate in programs and/or courses that address factors relating to the offending, as directed by the Regional Manager.
37Mr Sobh, do you understand what I have just read out to you?
38OFFENDER: Yes. Yes, I do, Your Honour.
39HIS HONOUR: Are you willing to comply with the terms of the correction order in those terms?
40OFFENDER: Yes. Yes, Your Honour.
41HIS HONOUR: I take it in those circumstances that your indication over the video link is sufficient consent to be placed on the order ‑ ‑ ‑
42MS GREENER: Yes, Your Honour.
43HIS HONOUR: ‑ ‑ ‑ and therefore I can sign the order myself as indicating his consent.
44MS GREENER: Yes, Your Honour.
45HIS HONOUR: Do you feel any need to discuss the terms of the order with him before that occurs?
46MS GREENER: I don't, Your Honour. Unless Mr Sobh indicates that he would like to speak to me, I think it was all very clear.
47HIS HONOUR: Are you happy to proceed without speaking further to your counsel about the order?
48OFFENDER: Yes.
49HIS HONOUR: Yes. Do you want to speak to your barrister before we move on?
50OFFENDER: No, no. I understand.
51HIS HONOUR: All right. And I make the disposal order in the terms of the draft. Is there anything else that I need do?
52MS GREENER: If I could just clarify that the pre-sentence detention was formally reckoned as served, Your Honour.
53HIS HONOUR: I should have said that.
54MS GREENER: Thank you, Your Honour.
55HIS HONOUR: I declare 33 days of pre-sentence detention as time to be reckoned as served on the sentence that I have imposed today.
56I should add that but for your plea of guilty I would have sentenced you to a total effective sentence of imprisonment for 15 months with a non-parole period of nine months.
57MR McCOWAN: As the court pleases.
58MS GREENER: As Your Honour pleases.
59HIS HONOUR: Does that complete the formalities?
60MR McCOWAN: Yes, from my perspective.
61HIS HONOUR: All right. Thank you. We have the disposal order.
62Yes, I think I explained to you the consequences of committing another offence ‑ ‑ ‑
63OFFENDER: Yes, you did. Yes.
64HIS HONOUR: ‑ ‑ ‑ whilst the order is in force. I should also tell you that if you fail to comply with the other terms of the order, you would also be in breach of the order and ‑ ‑ ‑
65OFFENDER: Yes.
66HIS HONOUR: ‑ ‑ ‑ for instance, not turning up to supervision when required to do so and that kind of thing. And it would then be open to Corrections to bring breach proceedings against you which would put you liable to imprisonment for up to three months just for breaching the order, as well as of course, reopening the discretion of the court to re-sentence you for the original offences of theft, causing injury recklessly and possessing a drug of dependence. Do you follow that?
67OFFENDER: Yes.
68HIS HONOUR: I have signed the order, the order is now in place and I mean this with the best will in the world, I hope I don't see you again in breach of the order.
69OFFENDER: Thank you. Thank you, Your Honour.
70MS GREENER: Thanks, Your Honour.
71MR McCOWAN: If it please the court.
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