Director of Public Prosecutions v Sobh

[2021] VCC 1338

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-01602

DIRECTOR OF PUBLIC PROSECUTIONS

v

FADI SOBH

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JUDGE:	O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2021
DATE OF SENTENCE:	16 September 2021
CASE MAY BE CITED AS:	DPP v SOBH
MEDIUM NEUTRAL CITATION:	[2021] VCC 1338

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:          Plea of guilty; Carjacking and assault; Offences at lower end of range of seriousness; Offender primary support for psychiatrically disabled father; Utilitarian benefit of plea of guilty made during the pandemic; Delay; Offender 38 years of age with no previous convictions; Substantial and compelling circumstances which are exceptional and rare established; Community correction order imposed.

Legislation Cited:         Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Farmer v The Queen [2020] VSCA 140; Boulton v the Queen [2014] VSCA 342

Sentence:  2 year Community Correction Order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr F. Cameron	Office of Public Prosecutions
For the Accused	Mr L. Barker	Emma Turnbull Lawyers

HIS HONOUR:

1Fadi Sobh, on 18 August 2021 you pleaded guilty to one charge that at Coburg North on 31 January 2019, you stole a motor vehicle from Ali Al Khalidi and at the time of doing so and in order to do so you used force contrary to s 79 of the Crimes Act 1958. You further pleaded guilty to one charge that on the same date, at the same location you assaulted Ali Al Khalidi contrary to Common Law.

2At the plea hearing conducted on 13 September 2021, Mr Cameron on behalf of the prosecution tendered and read to the court a summary of prosecution opening setting out the circumstances surrounding the commission of these offences. Mr Barker on your behalf took no issue with the matters set out in the prosecution summary, however, he outlined a number of additional factual matters which provided further context to your offending. Mr Cameron did not challenge those additional matters. What follows attempts to describe your offending based on all of the facts accepted by both parties.

Circumstances of offending

3You are the owner of a property in Newlands Road Coburg North, part of which had been rented to the complainant in this matter, Ali Al Khalidi. He operated a business from that location known as PolyTrade Recycling Facility.

4In 2016 you leased half of the Newlands Road property to Mr Al Khalidi on the understanding that it was to be used for parking his trucks and storing empty waste bins. The agreement provided for rent to be paid monthly at $2,000 for the first six months, and thereafter at $2,500 per month.

5Mr Al Khalidi, contrary to what was agreed, used the land to dump waste, including car bodies, asbestos and other toxic materials. He did not pay any rent at all. In addition, the dust, dirt and smell from the waste adversely affected the tenant occupying the other half of the property, a car dealership, which apparently suffered a downturn in its business.

6I was told that you attempted to engage with Mr Al Khalidi on a number of occasions to rectify these problems but without success.

7On 3 September 2018, you were prosecuted by the local council as the owner of the property which had used the land for a purpose which was contrary to the applicable planning scheme. You were fined $10,000, ordered to pay $6,000 in costs and ordered to have the site cleaned.

8You continued to try to engage with Mr Al Khalidi but to no avail.

9On 31 January 2019, you went to the Newlands Road property with another person and waited at the exit. Mr Al Khalidi drove his Isuzu Skip Truck towards the exit of the property but found his path blocked by a small yellow car which you and your co-offender had parked across the driveway. Once he had stopped, you both approached the vehicle.

10Your co-offender punched Mr Al Khalidi several times to the head and face causing some bleeding and bruising. As this occurred, you attempted to take the keys from the truck. You then grabbed Mr Al Khalidi and pulled him out of the cabin of the truck, causing him to fall to the ground. You then got into the truck whilst your co-offender moved the yellow car and drove off, leaving Mr Al Khalidi lying in the driveway.

11The incident was immediately reported to police and within a very short period of time the truck was located parked about 100–200 meters away from your business premises. Police then attended at your business at Shift Motor Works in Newlands Road, Reservoir and located the keys to the stolen truck inside your workshop.

12Mr Al Khalidi attended later that afternoon at the Royal Melbourne Hospital, where he was treated with ice packs and pain medication. A mild irregularity of his nasal bones was detected. He was examined by a doctor from the Victorian Institute of Forensic Medicine four days after this incident. The following injuries were observed:

·        a scabbed abrasion to the forehead;

·        purple and yellow bruising to both eyes, more so the left than right;

·        tenderness of facial bones, more so the left than right;

·        scabbed abrasions on the back of his left hand with sweeping across the knuckles and tenderness of the little left finger; and

·        a scabbed abrasion to the left knee.

13Mr Cameron relied upon photographs of these injuries as depicted at pages 154–157 of the depositions.

14For the purposes of the plea hearing I was advised that Mr Al Khalidi had been approached on three occasions by the informant for the purposes of obtaining a victim impact statement. He refused to provide such a statement.

Procedural history

15You were charged with this offence on 31 January 2019 and spent that night in custody, after which you were released on bail. A contested committal hearing took place on 13 August 2019 and thereafter there were significant delays caused by the pandemic. Ultimately, the matter came on for Case Conference on 10 August 2021. Following that conference, you were arraigned on 18 August 2021 on less serious charges and pleaded guilty.

Personal history

16You were born in January 1983 and are now 38 years of age. You had just turned 36 when these offences occurred.

17You have never been in trouble with the police either before or after this incident. You are married with three children under the age of five, and your wife is due with your fourth child next month. You are a qualified mechanic and have operated an auto mechanics workshop in Reservoir on your own account for approximately the last 10 years.

18You were born and raised in the Preston/Reservoir area to parents of Lebanese origin. When you were three years of age your mother left the family home, leaving you and your sister to be raised by your paternal grandparents. Your father was diagnosed with schizophrenia, borderline personality disorder and epilepsy, and often experienced episodes of paranoid and delusional symptoms which sometimes developed into psychosis and violence. According to his treating medical practitioner, he continues to suffer from “multiple chronic medical and psychiatric conditions”.

19You are his primary support person and regularly take him to medical appointments and organise his finances and his affairs more generally. Your father is regularly hospitalised and it has been common for you to attend at his home in the middle of the night in order to assist paramedics with translation and other information when your father has experienced florid and distressing episodes.

20Your grandmother was apparently an enterprising person who ran a number of small businesses and took you under her wing. She had a strong influence on you, and through her it appears you developed a very strong work ethic. Throughout your childhood and adolescence, your grandmother ensured that you received paediatric mental health counselling to assist you in dealing with your father’s bizarre and disturbing behaviour. Indeed, you appear to have a healthy attitude to your father’s difficulties, as you told your assessing psychologist, “… it wasn’t his fault, it was his sickness”.

21You attended school in the local area and finished your year 12 at Reservoir District Secondary College. You enjoyed school because it provided a respite from the difficulties at home with your father. After completing year 12 you undertook an apprenticeship as a mechanic, completing that apprenticeship in 2006 whilst working for an uncle. You also qualified as a licensed security guard and worked in that field on weekends and at nights to earn extra income.

22Eventually, you took over your uncle’s mechanical workshop and car dealership, where you worked very long hours. It seems that you never developed any problems with illicit drugs or alcohol because you say that you have always been too busy working to waste time taking drugs or getting drunk.

23In 2006, you bought your first home and have since acquired three investment properties. You met your wife in 2011 and you say that you developed a strong relationship with her because you had had similar experiences during your childhoods. You married in 2015.

24Your wife provided a lengthy personal reference in support of you on the plea. She is currently studying for a Bachelor of Primary Education but has deferred her studies in the current circumstances. She and the children are totally dependent upon you and, worryingly, your business has been severely impacted by the COVID-19 crisis. She confirms that you are the primary support for your father.

25In 2017 your grandmother passed away, and this appears to have had a significant effect on you. Your grandmother had taken on the role of your mother from the time that you were very young and had acted as a mentor for you in managing your business and investments.

26You were assessed by Mr Ian Mackinnon, consultant psychologist, for the purposes of your plea hearing and he provided a report dated 6 September 2020 which was tendered on the plea. He assessed you as suffering from long-standing post-traumatic stress disorder (‘PTSD’) which arose in response to the significant difficulties you experienced during your formative years, where you were exposed to many episodes of your father’s bizarre and threatening behaviour. Generally speaking, you have largely, according to Mr Mackinnon, suppressed the symptoms of PTSD by throwing yourself into your work. He formed the view that you are somewhat of a workaholic.

27As to your state of mind at the time of the commission of the offence, Mr Mackinnon explained that in this way:

“In my opinion, at the time of the offences, Mr Sobh’s PTSD was manifested at elevated levels, having been exacerbated by the death of his grandmother some fifteen months prior (in late 2017). The death of Mr Sobh’s grandmother appears to have had a deeply unsettling effect on Mr Sobh. When he was confronted with, what he reported to me was a completely unhelpful, stubborn and deliberately abusive attitude from the victim, Mr Sobh was not in a good state of mental health to deal with the complexities of the issues appropriately. …

Mr Sobh recounted to me the many reasonable overtures he had first made to the victim in an effort to resolve things amicably, repeatedly telling him not to worry about paying the rent as long as he vacated the property and attempting to settle things in an officious manner. However, according to Mr Sobh, he was repeatedly ignored, made to feel like he was being taken advantage of and feeling at a deep level that his grandmother was somehow also being abused and robbed by the victim’s abuse. In this context, Mr Sobh’s judgement became degraded and he felt he carried a family responsibility to “take action” – not having a clear plan for what it was he was going to do but mustering up the determination to confront the victim and “sort it out.” In my opinion, to a large degree, Mr Sobh unintentionally ‘vented’ much of the anxiety, anger, grief and general distress that had accumulated in him during the fifteen difficult months prior to 31/01/19, upon the victim.”[1]

[1] Report, Ian Mackinnon, Consultant Psychologist, 6 September 2020, pp 8–9.

Submissions of the parties as to penalty

28Mr Barker on your behalf adopted Mr Mackinnon’s description of your state of mind at the time of the commission of the offence and emphasised how out of character your offending was. He disavowed any suggestion that the complainant was to be blamed for your criminal behaviour but submitted the context and background to your dispute with the complainant helped to explain why you acted so very much out of character. He acknowledged however that you face a significant hurdle in that the offence of carjacking (Charge 1) is defined as a Category 2 offence under the Sentencing Act 1991 (‘the Act’).

29Section 5(2H) of the Act relevantly provides:

(2H)           In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—

………

(e)     there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).

………

30Section 5(2HC) guides the approach to be taken in assessing substantial and compelling circumstances:

(2HC)        In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—

(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1) ; and

(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and

(c)     must not have regard to—

(i)     the offender's previous good character (other than an absence of previous convictions or findings of guilt); or

(ii)     an early guilty plea; or

(iii)     prospects of rehabilitation; or

(iv)     parity with other sentences.

31Section 5(2I) provides some further guidance as to the application of s 5(2H)(e):

(2I)     In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—

(a)     the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and

(b)     whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.

32Mr Barker submitted that the cumulative impact of the circumstances of your case were such as to justify a departure from Parliament’s intention that a term of imprisonment should ordinarily be imposed. The substantial and compelling circumstances that are exceptional and rare that he relied upon can be distilled to comprise the following matters:

·        the nature and gravity of this offending fell at the lower end of the range for this kind of offending;

·        your moral culpability was reduced because you had repeatedly sought to resolve your dispute with the complainant through legitimate and lawful means;

·        the complainant’s injuries were superficial and it could not be inferred that he had suffered further impact because he had pointedly refused to provide a victim impact statement;

·        the delay accompanying this proceeding of some two and a half years;

·        the absence of previous convictions or findings of guilt;

·        your role as the primary support person for your psychiatrically disabled father;

·        your fragile psychological state in the wake of your grandmother’s death as described by Mr Mackinnon, at the time the commission of the offence;

·        the fact that you have a wife and what will be four very young children who are totally dependent on you;

·        though less weight could be given to your personal circumstances – your unusual and difficult upbringing; and

·        that you had pleaded guilty in circumstances where you were entitled to a significant reduction in sentence because the plea was entered during the pandemic.

33On behalf of the prosecution Mr Cameron did not challenge the factual matters you relied upon, but as I understood the prosecution’s position, whilst there was substantial mitigation, it was not sufficient to overcome the significant hurdle constituted by s 5(2H). It followed that a term of imprisonment had to be imposed, although given the mitigation, it need not be lengthy.

34Mr Cameron further suggested that the entry of the plea of guilty during the pandemic was not a matter to which I could have regard in determining whether there were substantial and compelling circumstances. He submitted that among the matters set out s 5(2HC)(c) to which the court could not have regard, (ii) referred to “an early plea of guilty”. That phrase, he submitted, precluded the court from taking into account the utilitarian benefit of the plea, and in particular the utilitarian benefit of the plea made during the pandemic, for the purposes of determining whether substantial and compelling circumstances had been made out. That was so it was said because the timing of the plea was bound up with the utilitarian benefit.

Analysis

35I do not find the prosecution argument that the utilitarian benefit of your plea of guilty cannot be taken into account persuasive. In my view, a plea of guilty comprises a number of components, one of which is its timing, another of which is its utilitarian value. There are further components, such as the value of the plea because it is made in the face of a weak prosecution case or because it is strongly indicative of remorse. Section 5(2HC)(c)(ii) precludes “an early guilty plea” from being taken into account for the purposes of assessing substantial and compelling circumstances – it does not seem to me to preclude other ways in which a plea of guilty may mitigate. In particular, it does not preclude, in my view, the court taking into account the rare and exceptional circumstance that the plea of guilty is made during the course of a pandemic when the criminal justice system is struggling to manage a large backlog of cases.

36The Court of Appeal has made it plain that

“criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present. One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.”[2]

[2] Worboyes v The Queen [2021] VSCA 169, [38] per Priest Kaye Forrest T JJA.

37It follows that in assessing whether or not substantial and compelling circumstances that are exceptional and rare are made out, I will take into account the value of the plea of guilty made as it has been during the course of the pandemic.

38In Farmer v The Queen the Court of Appeal described s 5(2H) as “a very high hurdle that will not often be surmounted”,[3] although it was stated that:

“Within the bounds of reasonableness, whether in combination the applicant’s circumstances amounted to ‘substantial and compelling circumstances’ that are ‘exceptional and rare’ was for the judge to determine.”[4]

[3] Farmer v The Queen [2020] VSCA 140, [51].

[4] Ibid [53].

39I consider that the circumstances of this case are sufficient to overcome the very high hurdle constituted by s 5(2H). I accept the substance of Mr Barker’s submission and that the factors distilled above, when taken together, do amount to substantial and compelling circumstances which are exceptional and rare.

40Whilst this is undoubtedly a serious offence, there are some unusual features about it which place it in a less serious category. One of those features is the fact that this was a civil dispute that you sought to resolve appropriately over a long period of time during which the victim refused to cooperate.

41I accept that his refusal to pay rent and comply with the relevant planning laws resulted in him owing you thousands of dollars and caused enormous financial stress to you. Further, you struggled to cope with that stress in the wake of your grandmother’s death and in that setting committed this offence. None of that is to excuse in any way taking the law into your own hands as you did, but it does place a different complexion on your offending and diminishes to some extent your moral culpability.

42In addition you are a man who has overcome a very difficult upbringing where you were exposed to frightening and violent outbursts from your psychiatrically ill father. You are now his primary support. It is your continuing responsibility to navigate your father’s frequent hospitalisations and his dealings with medical professionals. It is not suggested that he is totally dependent upon you but I do accept that the role you play in support of him is invaluable.

43Your plea of guilty in the midst of the pandemic is another matter which, for the reasons I have attempted to explain, forms part of the circumstances that are substantial and compelling.

44Other matters which taken in combination overcome the hurdle constituted by s 5(2H) include the punitive effect of having these matters hang over your head for over two and a half years, the complete lack of criminal history at 38 years of age and, although I am to give less weight to your personal circumstances, I still take into account the fact that you are the sole provider for your wife and what will soon be four children under the age of five.

45All of that translates to a truly compelling picture which in my experience is exceptional and rare.

46Section 5(2I) of the Act requires that I give added emphasis to the sentencing purposes of general deterrence and denunciation. It seems to me, consistent with the principles described in Boulton[5] that those sentencing purposes can be adequately addressed through the more punitive aspects of a Community Correction Order. To that end you were assessed by a representative of the Office of Corrections as to your suitability to undertake such an order.

[5] Boulton v the Queen [2014] VSCA 342.

47You were first assessed by a senior psychiatric nurse, Ms Hannah Child, from the Mental Health Advice and Response Service. You were not thought to suffer any acute symptoms which would effect your ability to engage in a Community Correction Order.

48You were then assessed by a Community Corrections Officer who noted that you explained that your offending behaviour “was unacceptable and expressed it was the worst day of his life”. You were found suitable to undertake such an order.

Sentence

49Taking all relevant matters into account, you will be convicted and sentenced on both charges of carjacking and assault to undertake a Community Correction Order for a period of two years, the special conditions of which will be that you be subject to supervision and that you perform 200 hours of community work.

50I will declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty you would have been sentenced to a total effective sentence of 2 years and 6 months imprisonment and a non-parole period of 15 months would have been fixed.