Director of Public Prosecutions v Sykos

[2016] VCC 696

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02101
CR 15-02102

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER SYKOS
SAM BOKHAAZI

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 May 2016
CASE MAY BE CITED AS:	DPP v Sykos & Anor
MEDIUM NEUTRAL CITATION:	[2016] VCC 696

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Glynn	Office of Public Prosecutions
For Offender Sykos	Mr C. Nikakis	Haines & Polites
For Offender Bokhaazi	Mr P. Casey	Direct Brief

1HIS HONOUR:  Sam Bokhaazi and Christopher Sykos, you have pleaded guilty to an indictment which alleged one charge of aggravated burglary, one of theft and one of handling stolen goods.  The events leading to these charges occurred on 20 June and then in January 2015. 

2At the plea the prosecution tendered a summary of the agreed facts upon the opening of this matter and that document was exhibited and will be retained on the court file.

3The circumstances were somewhat unusual and I will not recite them in detail. It will suffice to say, for the purposes of this sentence, that you were both friends with a man named Naddaf who had a brother named Mahmoud.  In 2013 Mahmoud made an agreement to purchase certain real estate from the victim of these offences, Juan Omare.  Mahmoud, it would appear, paid Omare a substantial sum of money by way of deposit in June of 2013.  The property was owned by a corporate entity controlled by Omare and that entity was placed in liquidation in 2014.

4Once that occurred the transaction fell through.  Rather than seek remedies at law, Mahmoud enlisted his brother Abraham and the two of you to extract some satisfaction in the form of self-help.

5In April 2014 Abraham had forced Omare to transfer, in effect to handover to him Omare's boat and trailer.  Then in June 2014 the next step was taken in this course of conduct.  The two of you and Abraham Naddaf at around about midnight of that day walked into Omare's garage as he was about to drive off in his car.  You, Bokhaazi, turned the ignition of the victim's car off through the window.  Once Omare came out of the car there was a scuffle and he was pulled to the ground and this involved the two of you but Omare was not injured.  You followed him inside his house where he was questioned by Abraham about his assets, location of motor vehicles and other matters.  This was done in your presence.

6The three of you searched the premises and questioned Omare about the contents.  While at the premises he was told to complete transfer papers purporting to transfer ownership of a 2009 BMW car to Naddaf.  At 6.30 you, Sykos, left the premises.  At about 7 am you, Bokhaazi, with Naddaf, drove Omare past Sykos' house where he was picked up and all of you then drove to Omare's parents' house where you were expecting to collect the BMW.

7Omare convinced you to leave him there by pretending the car at mechanical trouble.  He did not, however, contact police and later that day he returned home with the BMW and left the car behind.  You, Bokhaazi and Naddaf took the car from there and gave it to Mahmoud Naddaf who later on in late July lodged documentation with VicRoads to transfer it into his name.  He also exempted the transfer ownership of the boat to himself in early January 2015 and you had earlier made enquiries by attending the Bundoora VicRoads office for this purpose.

8On January 15 2015 the two of you arrived at Mahmoud's house while towing the boat and trailer.  You left it in his front yard and later removed it to a Yarrambat address owned by Mahmoud Naddaf.  You were all arrested in April 2015 and you each spent a week in custody.  At committal in November the matter settled on the present indictment to which you pleaded guilty and both of the Naddaf brothers have been sent for trial later this year.

9Aggravated burglary is a serious criminal offence which carries a maximum of 25 years' imprisonment.  It is unfortunately a prevalent and disturbing crime which undermines people's fundamental right to feel safe and secure in their own home.  Such conduct is totally unacceptable and should be denounced by the court.

10There is no victim impact statement in this matter but I can draw reasonable inferences about the state of mind of the victim.  Although it is unclear who recruited you, it is clear that your presence was sought to provide the quality of intimidation of force of numbers.  It was a presence which would have threatened the victim with unwanted repercussions and one which ensured his compliance and made him obey your requests and the requests being made of him.

11It was in a sense a vigilante action to seek the redress of a perceived wrong on behalf of a friend when the proper appropriate response would have been to seek remedies at law.  It was a presence which was not only required and enacted to achieve criminal ends disguised as self-help but which extended into the home and property of the victim.  All of you were known to each other except you, Mr Sykos, did not know the Naddafs.  Your involvement came at the behest of Bokhaazi, a more misguided and naïve loyalty is difficult to imagine and the aim must have been clear to you to heavy Omare into concessions which would redress a civil debt.

12I accept neither of you drew any financial advantage from the theft or the handling or indeed via the aggravated burglary of itself for that matter except the reward of misguided loyalty.

13The action of men acting together in the middle of the night in invading the home of another to exact some matter of retribution must be justly punished and the principle of general deterrence must be a primary consideration. 

14I take your plea into account and will bestow upon you a discount according to law.  I accept it is some evidence of remorse.  I accept it has a utilitarian value which relates to the avoidance of a protracted criminal trial.

15You, Mr Bokhaazi, are 42 years of age.  You are in a de-facto relationship with your wife of 22 years.  She was in court and I was told she was about to give birth to your fourth child.  You have three other children aged seven, eight and nine.  You were raised in Thomastown where your father owned a fish and chip shop.  You later ran a restaurant.  You were educated to Year 12 which you passed and at around about the age of 18 you were involved in a serious car accident which required eight months in hospital and then some further eight months in rehabilitation.  You had multiple serious fractures and you were unconscious for a week resulting in memory loss and perhaps some residual effects.

16You obtained work and ultimately at age 23 you began importing cars from Japan.  In these years you also went to court and were fined for theft of a car, theft from a car, unlawful possession and going equipped to steal.  You were placed on a community-based order for possession of a weapon, handling stolen goods and unlawful possession.  You completed this order successfully.

17You then ran a hairdressing salon for some 12 years.  Thereafter you obtained employment with Stefan Enterprises as a sub-contractor foreman over five years.  I received a letter from Tony Stefan, the director, who wrote of your reliability, honesty and work ethics.  He was also in court.  Your in-laws also provided a letter for you.  They live next door and you are considered a carer for them.  They both have medical issues with which you assist, in particular the regular and frequent attendance to dialysis which is required.  Your parents were also in court in your support.

18You are buying a house in Mill Park and paying a mortgage.  In 2001 you were placed on an intensive corrections order for trafficking in cannabis and cultivation.  You completed that order successfully. 

19Christopher Sykos, you are aged 51.  You were raised in a hardworking and loving family.  You are very close to your family.  You were educated to Form 3 and you obtained employment for the next eight years in a panel beaters and restorers workshop.  From age 24 you drove trucks interstate for a couple of years.  At the end of that period you married.  Soon after you got work at Neverfail Spring Water where you remained for some nine and a half years.  You ceased work as a result of back injuries which became chronic.  At age 37 you remained home for some four years on Centrelink benefits and then you separated from your wife and you were sacked.

20You settled your entitlements in court for a very modest amount and have had no subsequent employment.  At age nine your son expressed a preference to live with you and you have had his full time care since.  He is now 18 years old and undertaking the second year of an electrical apprenticeship and he is aware of your situation.  He drives you to physiotherapy as your back pain can get very bad.  The degenerative changes in your back were noted in details in the report of Jeffrey Cummins dated 21 April 2016 which I take into account.  You do not have alcohol or drug problems.

21In 1991 you were before a Magistrates' Court for unlawful assault and being unlawfully on premises for which you were placed on a good behaviour bond.  You expressed regret for this behaviour which you put down to a sense of misguided loyalty to Bokhaazi.  I note that you also proffered an explanation to Mr Cummins which suggested you were present in an endeavour to help Omare to somewhat overcome an ice addition, an explanation which sidelined the property deal and its enforcement in a naïve attempt or by dissembling, either way not to your credit.

22Mr Cummins opines that your mental health would inevitably deteriorate if you are incarcerated.  This relates to what he diagnoses as a chronic adjustment disorder or anxiety and depression in response to your work injury.  He would suggest this disorder would have been relevant in terms of your moral culpability at the time of your offending.  I am not satisfied on the basis of your history and the times involved that such a disorder played any role in your offending at all.  Indeed at your plea your counsel specifically did not rely on any aspect of Verdins principles.  I accept that you did not profit anything from this foolish enterprise.  You were Bokhaazi's friend and acted out of loyalty.

23I take the background of each of you into account.  You, Mr Sykos, also pleaded at an early stage and a discount is applicable also in your case.  I accept it is accompanied by remorse and that your role was probably even less prominent than Bokhaazi.  Your prior history in each case is limited and now dated.  Prospects of rehabilitation is very good in each case.

24While I acknowledge that some delay between the offending and the plea has occurred, in my view it is not inordinate and it is not a matter which could significantly ameliorate or vary the sentence.  It is noteworthy only in the sense that there has been no further matter alleged or pending in each of your cases.  I accept that this aggravated burglary does not fortunately encompass many of the features which the court often sees in this context, such as the presence of weapons, the evidence of alcohol or drug fuelled aggression, frank and unprovoked violence, damage to property or injury.

25These circumstances render this aggravated burglary at the lower level of typical home invasions.  It was nevertheless a confrontational presence disguised to extract concessions and property from the victim by way of intimidation.  That must have been plain to each of you.

26I do not consider that some of the other tactics used by the Naddaf brothers are demonstrated to have been known to you as I was informed they had used them and they do not form either part of the indictment or of the summary and I do not propose to rely on them.

27The most important question for me to determine is whether the imposition of a community corrections order under the authority of Bolton as expressed by the Court of Appeal and as explained there can suffice to properly reflect all relevant sentencing principles of sentencing, particularly deterrence and punishment.  These are difficult aspects in cases like these which are not amenable to answer as easily perhaps as an order going to rehabilitation or proportionality.

28Ultimately, although the imposition of a short period of imprisonment immediately to be served may have been seen to have been an option, in my view a community corrections order with appropriate conditions can encompass all sentencing purposes in this case.

29Please stand each of you.

30On aggravated burglary, on theft and on handling stolen goods you will be convicted and sentenced to a three years community corrections order.  The conditions of the orders, as suggested in the assessment reports which I received, are that you undertake unpaid community work and I will order that you perform 350 hours of this work.  The office where you will report is Reservoir.

31But for your plea I would have imposed a sentence of two years with a non-parole period of 12 months.

32I will sign a forensic order pursuant to s.464ZF for the taking from you of a biological sample for placement on the database.

33Mr Prosecutor, I do not seem to have a form in relation to it.  Is that a matter that is opposed?

34MR CASEY:  It's not opposed but there was an order made in the Magistrates' Court in one of the preliminary hearings to  have ‑ ‑ ‑

35HIS HONOUR:  In relation to both of them?  In any event I will sign such an order if it is available, Mr Glynn.

36MR GLYNN:  Yes, Your Honour.

37HIS HONOUR:  The community corrections order will remain in place, I think I have already said, for a period of three years.

38MR CASEY:  As Your Honour pleases.

39HIS HONOUR:  There will be paperwork to be signed.  I should stress to you both two things. Firstly, the taking of a biological sample is by way of a mouth scraping that is not a painful procedure.  However, if at the time that a police officer makes that request of you, you do not consent then that authorised officer can use reasonable force to take a blood sample from you, do you understand?

40OFFENDERS:  Yes.

41HIS HONOUR:  The second thing is that a community corrections order as I have imposed on your for that period of time will require you to attend appointments, be made amenable to do community work if and when the correctional authorities tell you that that work has been arranged and may have other obligations attached to it, like the first report.  I would suggest that you learn how to use either a diary or a phone because if you breach that order or are in contravention of that order in the next three years you will be brought back before me and I will deal with you then.  Do you both understand that?

42OFFENDERS:  Yes.

43HIS HONOUR:  Mr Sykos, you need to report to the officer in charge at the Reservoir Police Station in relation to the collection of this biological sample within four weeks, and Mr Bokhaazi, you need to attend to the officer in the charge at the Mill Park Police Station.  You can both step out of the dock.

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