Director of Public Prosecutions v Yehia
[2018] VCC 1050
•9 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case Nos. CR-17-00314
CR–17-00320
AP-17-2400
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED YEHIA |
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JUDGE: | Morrish | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2018, 4 and 15 June 2018 | |
DATE OF SENTENCE: | 9 July 2018 | |
CASE MAY BE CITED AS: | DPP v Yehia | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1050 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J Singh | Office of Public Prosecutions |
| For the Offender | Mr C Nikakis | Haines & Polites |
HER HONOUR:
1 MOHAMMED YEHIA, you are to be sentenced in respect of charges contained in two indictments and in respect of related summary charges that were uplifted to this court with the consent of the parties. Also, you are to be sentenced in respect of charges the subject of appeal from the sentences imposed at the Magistrates Court at Broadmeadows on 14 September 2017.
Indictment G12621013 (first indictment)
2 This indictment alleges two charges of handling stolen goods contrary to s 88(1) of the Crimes Act (Charges 1 and 2) and one charge of negligently dealing with the proceeds of crime contrary to s.194(4) of the Crimes Act (Charge 3).
3 The maximum applicable penalty for handling stolen goods is 15 years’ imprisonment.
4 The maximum applicable penalty for negligently dealing with the proceeds of crime is 5 years’ imprisonment.
5 You pleaded guilty to all charges when arraigned before me on 19 February 2018.
Circumstances of offending
6 At the time of offending you were living in a house in Walsh Street Coburg with your 4 young children. You were then employed by a tyre company.
7 On 21 July 2016 at approximately 1.00 pm, police from the Fawkner Divisional Response Unit executed a search warrant issued under the Drugs, Poisons and Controlled Substances Act at your home. You were at home and remained present throughout the search.
8 During the search police found items identified as having been stolen, namely a Makita Sabre saw (Charge 1) and a tool bag containing 4 Ryobi power tools (Charge 2).
9 Police also found some 54 brand new items including assorted power tools, hand tools, tool chests, welders and computer equipment, all still in their original packaging. Some of these items had their original price tags affixed to them. Due to the appearance of these items and their proximity to the stolen goods, police suspected that they were the proceeds of crime (Charge 3). A list of these 54 items is attached as “Schedule A” to the indictment.
10 You were arrested at the scene and taken to the Fawkner Police Station to be interviewed. During the interview you were unable to provide satisfactory explanations or produce receipts for the many items located throughout your home.
11 In the interview you told police that you sold some tyres from your home but otherwise exercised your right to answer no comment to many questions put to you.
Gravity of offending
Handling stolen goods
12 “Handling stolen goods is generally regarded by Victorian courts as a more serious offence than theft, and generally through the modern history of the offence, this has been reflected in its greater maximum penalty. This gravity is generally linked to the role of the offence in ensuring the success of the forms of stealing which precede it in point of time. The handler indirectly, at least, encourages the thief.”[1]
[1]Victorian Sentencing Manual chapter 32.7.1, referring to Patel (1984) 6 Cr App R (S) 191 and Battams (1979) 1 Cr App R (S) 15
Negligently dealing with the proceeds of crime
13 Negligently dealing with the proceeds of crime is the least serious of the “cascading series of offences” crated by s.194 of the Crimes Act.[2] That said, in your case the charge involves some 54 individual items of property.
[2]Punn v The Queen [2017] VSCA 219 at [79] per Croucher AJA
History of proceedings
14 You were charged on 21 July 2016. On 21 October 2016 there was a summary hearing at the Broadmeadows Magistrates’ Court. On 13 February 2017 the matter came on for filing hearing and on 21 February 2017 at a committal mention the case proceeded as a hand up brief noting you intended to plead guilty. The next day, on 22 February 2017 there was an initial Directions Hearing where both this matter and your case on the second indictment were dealt with. There were further directions hearings on 30 March 2017 and 8 September 2017. On 20 December 2017 you were arraigned at a final directions hearing. The matter was first listed for plea on 19 February 2018 when you were arraigned before me as mentioned earlier. The further plea hearing was adjourned to 4 June 2018 and then to 15 June 2018 to enable you to gather further evidence.
15 You were granted bail for these matters. I extended your bail on 19 February 2018 but you were unable to post the surety as required by my order. You have remained in custody ever since.
Indictment G12495450.1 (second indictment)
16 This indictment alleges one charge of use false document contrary to s83A(2) of the Crimes Act 1958 (Charge 1) and one charge of possess a drug of dependence, a small quantity of cannabis, contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act (Charge 2).
17 The maximum applicable penalty for using a false document is 10 years’ imprisonment.
18 The maximum applicable penalty for possessing a small quantity of cannabis is 5 penalty units.
19 You pleaded guilty to both charges when arraigned before me on 19 February 2018.
Circumstances of offending
20 After being charged with offences arising from the search at your home on 21 July 2016 you produced false documents in the form of fake receipts and sent them by email to Senior Constable Black who was investigating your involvement in the offences of possessing property, (including assorted power tools, hand tools, tool chests, welders and computer equipment, all still in their original packaging), suspected of being the proceeds of crime. You provided the false documents to police to convey the impression that you had come by the goods lawfully in an effort to have the charges laid against you withdrawn or reduced in number or scope.
21 The false documents purported to be genuine receipts from:
1. Bunnings Warehouse Coburg dated 10 August 2015 for goods to the value of $1,063.90;[3]
[3] Depositions p67
2. Bunnings Warehouse Coburg dated 16 February 2016 for goods to the value of $1,735.00;[4]
[4] Depositions p68
3. Bunnings Warehouse Broadmeadows dated 1 February 2016 for goods to the value of $1,205.90;[5]
[5] Depositions p69
4. Bunnings Warehouse Bayswater dated 7 November 2012 for goods to the value of $753.90;[6]
[6] Depositions p70
5. Bunnings Warehouse Broadmeadows dated 5 May 2016 for goods to the value of $777.85;[7]
[7] Depositions p71
6. Masters Home Improvement (date illegible) for goods to the value of $708.00;[8]
[8] Depositions p72
7. Masters Home Improvement (date illegible) for goods to the value of $986.60;[9] and
8. Officeworks dated 25 April 2016 for goods to the value of $1,189.98.[10]
[9] Depositions p73
[10] Depositions p74
22 On 9 September 2016 following receipt of the false documents police executed a search warrant at your home during which a number of items were seized including receipts from Bunnings and a notebook referring to the items in respect of which you had previously been charged.
23 Charge 1 is a rolled up charge including all of the false receipts you produced to police.
24 During the search police also located a small quantity of cannabis, approximately 3.53 grams including the plastic bag in which the cannabis was contained. This is the subject of Charge 2.
25 When interviewed by police on 9 September 2016 you exercised your right to answer no comment to the questions asked.
History of proceedings
26 Initially you were charged with attempting to pervert the course of justice but indicated from an early stage that you would plead guilty to a rolled up charge of using a false document. The matter was to proceed to trial on 19 February 2018 however on that date the prosecution accepted your offer to plead guilty to one charge of use false document. Hence the current second indictment was filed over the previous version of it.
27 In these circumstances I regard you as having indicated your intention to plead guilty to an appropriately framed indictment at an early time.
Gravity of offending
28 The gravity of using a false document depends on the nature of the document and the circumstances in which it was used. In the circumstances of this case, your use of the fake receipts was intended to affect the course of justice by having charges laid against you either withdrawn or reduced in number or scope. That said, you are not to be punished as if you had committed the crime of attempting to pervert the course of justice, a common law offence that carries a maximum penalty of 25 years’ imprisonment.[11] The prosecution has elected to charge you with the lesser offence, a position I am bound to respect.[12] In all the circumstances, however, I regard your conduct as falling at the upper end of the scale of seriousness for the offence as charged.
Related summary charges heard under sections 145 and 242 Criminal Procedure Act
[11]Crimes Act s320
[12]Punn v The Queen [2017] VSCA 219
29 Upon your committal for trial two summary charges were transferred to this court under section 145 of the Criminal Procedure Act. These charges were summary Charge 5, commit indictable offence whilst on bail (use a false document) and summary Charge 6 commit indictable offence whilst on bail (possess a drug of dependence – Cannabis L) contrary to s30B of the Bail Act.
30 The maximum applicable penalty for these charges is 30 penalty units or 3 months’ imprisonment.
Circumstances of offending
31 You had been granted bail on 21 July 2016 in relation to charges that later became the subject of the first indictment. Whilst on bail you committed the offences the subject of the second indictment.
Appeal from sentences imposed in the Magistrates Court at Broadmeadows (AP-17-2400)
32 In the Magistrates Court at Broadmeadows on 14 September 2017 you pleaded guilty to 3 charges of driving whilst disqualified contrary to s.30(1) of the Road Safety Act. On these charges you were convicted and sentenced to serve an aggregate sentence of 6 months’ imprisonment.
33 The maximum applicable penalty for a first offence is 30 penalty units or 4 months’ imprisonment, and for a second offence 240 penalty units or imprisonment for 2 years. This was not the first time you drove whilst disqualified.
34 No order was made in respect of your licence.
Circumstances of offending
35 At the time of offending your licence to drive had most recently been cancelled on 15 March 2016 at the Broadmeadows Magistrates’ Court. That day the court ordered that you be disqualified from obtaining any license or permit for a period of 12 months effective from 15 March 2016.
Charge 1
36 On 6 September 2016 police saw you driving a grey Volkswagen Golf in an easterly direction on Barkers Road, Kew. You were intercepted for a routine licence check. You were unable to produce a driver’s licence. A check conducted on the VicRoads database revealed that your licence had been cancelled by the Broadmeadows Magistrates’ Court on 15 March 2016. That court had disqualified you from obtaining any licence or permit for a period of 12 months effective from that date.
37 When questioned at the scene you told police that you had received traffic infringement notices for speeding and for a red light camera offence. You admitted that you were present in court for traffic matters approximately 6 months beforehand but denied any knowledge of your licence cancellation or the period of disqualification.
Charge 2
38 On 11 January 2017 police saw you driving southbound on Lakeside Drive St Kilda in a Volkswagen Golf. Using a mobile data terminal police discovered that you were the registered owner of the vehicle, that your licence had been cancelled and that you were disqualified from driving. You were intercepted and when asked to produce your licence told police that you did not have it in your possession.
39 When further questioned at the scene, police asked whether you actually held a licence. You responded “yeah I think I do have a licence”. However when pressed further you told police “I think because I lost it for demerit points”. You later admitted that you had been to court but said you lost your licence because of your demerit points. Asked why you had driven from Coburg to St Kilda knowing that you did not have a licence, you replied “it’s my fault, I know, I’m sorry. I needed to pick up a friend, that’s all.”
Charge 3
40 A little over a month after committing Charge 2, on 24 February 2017, you were again caught driving, this time a Holden wagon, in an easterly direction on Devonshire Road Sunshine. You were intercepted by police. Using the Victoria Police Mobile Data Terminal police were able to determine that your licence had been cancelled and that you were disqualified from driving as of 15 March 2016 for 12 months.
41 At the scene when asked to produce your drivers licence you said “haven’t got it on me”. Asked whether it was your car you told police that it belonged to a friend. Police told you that you were disqualified from driving. You replied “oh, okay”. Asked whether you knew about your disqualification you replied “probably points”.
Gravity of offending
42 You were caught driving as a result of random checks and not because of any poor driving. But that does not excuse your flagrant disregard of the law.
43 You have an appalling record of convictions for driving offences dating back to 31 March 2002 when your licence was first suspended. You have 22 prior convictions for driving whilst your authorisation to do so was suspended between 21 October 2004 and 15 March 2016. More significantly you have 10 prior convictions for driving whilst disqualified from court appearances between 6 June 2007 and 6 November 2014. For these crimes you have received a variety of sentences ranging from fines, suspended sentences and terms of imprisonment to be served immediately. On 7 October 2013 in the County Court at Melbourne, in what appears to be a consolidation of 4 sets of appeals for multiple driving offences including 8 of the drive whilst disqualified convictions and 9 of the drive whilst suspended convictions mentioned earlier, you were released on a 12 month community correction order with conditions that you perform 150 hours of unpaid community work, that you undergo supervision and that you undergo assessment and treatment.
44 Unfortunately none of the sentences imposed upon you have deterred you from committing further driving offences.
Plea in mitigation
45 In a succinct plea in mitigation made on your behalf your counsel, Mr Nikakis, identified a number of circumstances which he submitted justified sentencing you to a term of imprisonment combined with a community correction order. Ultimately he submitted that time served together with a community correction order would be adequate punishment.
Personal history
46 You are now aged 36 years having been born on 16 February 1982. You are the second eldest of 8 children in your family who are currently aged between 23 and 37 years. Your father is a property developer who lives in Lebanon for half the year and in Melbourne for the other half of the year. Your mother lives in Australia.
47 You were educated to year 11. After leaving school you worked at a family owned petrol station in Coburg for approximately 4 years. Then you obtained employment in a tyre business in Reservoir which you kept for an aggregate period of approximately 13 years.
48 Prior to being taken into custody your father purchased a shop for you on Sydney Road so that you could run your own tyre business. Because of your uncertainty about the length of sentence of imprisonment that you may have to serve, you have not yet commenced that business.
49 You married your wife in Lebanon when you were aged 21 years. You brought your wife to Australia and you have lived together in Coburg ever since.
50 You have 4 children aged 13, 11, 9 and 3 years.
51 I am told your family remains supportive of you and some members of your family were present in court to support you.
52 You have a long-standing history of drug abuse. You commenced smoking cannabis when you were in your twenties. You progressed to using other illicit drugs and have prior convictions as a result. You developed a habit of using the drug Ice and this has plagued you for the last 6 years. In the past two or so years you have been using at least one gram of Ice per day.
53 Your counsel states that your drug use has contributed to your inability to make sensible decisions in your personal life and it has affected your attitude toward your criminal behaviour.
54 You were arrested and remanded in custody on 29 May 2017 when you were charged with trafficking methylamphetamine. You were granted bail on 23 August 2017 in respect of those charges. Your counsel informs me that this period on remand served as a “wake-up” call and caused you to reassess the impact your drug use was having not only on your life but also on those close to you.
First indictment
55 You made no comment in response to most of the questions asked of you when questioned by police. Other than to proffer that your crimes were “indicative of a person living a lifestyle where drugs played a part,”[13] no satisfactory explanation was offered in court to account for your offending. Whatever the extent of your drug abuse, you were apparently able to hold down a job.
[13]Plea transcript 4 June 2018, page 25
Second indictment
56 You made a no comment record of interview when the substantial allegations were put to you. No reason was offered in court to explain your offending.
Related summary offences
57 No explanation was offered for your offending.
Appeal charges
58 The explanations you gave to police when intercepted for the drive whilst disqualified charges are far from satisfactory. It is of little comfort that no other driving related transgressions were noted during these random checks.
Pleaded guilty
59 As mentioned earlier, at committal you indicated your intention to plead guilty to an appropriately framed indictment.
60 Apart from your attempt to have the proceeds of crime charges against you dropped or reduced by supplying fake receipts to police, I accept that you have not otherwise sought to test or challenge the prosecution case. No witness has ever been required to give evidence against you.
61 I am prepared to regard you as having indicated your intention to plead guilty at an early time.
62 In the charges the subject of appeal, you pleaded guilty in the court below at the first opportunity.
63 In determining the weight to be given to your pleas of guilty, I take into account the following factors:
1. the timing of your guilty pleas;
2. you are entitled to a statutory discount because you pleaded guilty;
3. you have avoided the cost and inconvenience of a trial. You have spared witnesses the inconvenience of giving evidence, both at committal and at trial;
4. there is social utility involved in your guilty pleas; and
5. I am unable to say whether your plea evidences any remorse on your part.
Remorse
64 I am unable to say one way or the other whether you are remorseful for your conduct.
Prior convictions and court appearances
65 I have already referred to some of your prior convictions for driving related offences.
66 You also have a lengthy list of prior court appearances for a variety of offences including for handling stolen goods. You also have a number of prior convictions or appearances for drug related matters.
67 Your counsel brought to my attention subsequent convictions as they are relevant to whether you are likely to comply with the terms of a further community correction order should the court be considering making such an order.
68 On 20 April 2017 in the Magistrates Court at Broadmeadows you were convicted of 2 charges of handling stolen goods. You were released on a 9 month community correction order with conditions that you perform 80 hours of unpaid community work. You breached that order when you committed the three drive whilst disqualified charges the subject of the appeal before me. When called upon to answer for that breach on 14 September 2017, the charge was proved and it appears that no further action was taken in respect of the breach.
69 Your counsel informed me that on 9 November 2017 at the Broadmeadows Magistrates’ Court you were released on a community correction order for a period of 18 months on drug trafficking charges (methylamphetamine). The conditions of that order required you to perform 100 hours of unpaid community work, attend supervision appointments and undergo treatment and rehabilitation. The current charges do not constitute a breach of that order.
70 Your counsel also advised me that there is a pending matter listed at the Magistrates Court at Broadmeadows involving a charge of failing to surrender motor vehicle.
Prospects for rehabilitation
71 You have a history of breaching the terms of your sentences, and I note you have appeared to answer for breaches of suspended sentences. You have failed to fully grasp the various opportunities that the courts have given you to face and overcome your problems. Unless you firmly commit to your rehabilitation the prospects for your reformation will remain poor.
72 When released back into the community after serving your sentence you will likely have work available to you, from either your former employer, as verified in a letter from him dated 1 May 2018,[14] or from your own efforts in the shop your father purchased for you.
[14]Exhibit 2
Sentencing submissions
73 Your counsel requested that I impose a combined sentence of a term of imprisonment together with a community correction order. He submitted that time served on remand should reflect the total term of imprisonment in that combined sentence.
74 Mr Singh on behalf of the prosecution initially conceded that a combined sentence would be open however, understandably in all the circumstances, he reviewed that position following an unfavourable report assessing you as an unsuitable candidate for a community correction order. Mr Singh submitted that the only appropriate sentence in all the circumstances is one involving your immediate imprisonment.
75 The Community Correction Order Assessment Outcome Report states:
“Mr Yehia has a substantive history with Community Correctional Services (CCS). Since 2013, Mr Yehia has been subject to five community-based dispositions. Mr Yehia contravened three of these dispositions by both failing to comply with conditions and further offending and further offending during a fourth, however contravention proceedings were not pursued.
The writer made contact with Mr Yehia’s current case manager in relation to the CCO imposed on 9 November 2017. It was reported that Mr Yehia expressed both to his corrections case manager and to his Drug and Alcohol Assessor, that he did not intend to make substantive changes to his level of drug use. Positive testing results from 6 January 2018 confirms that Mr Yehia’s use of Methylamphetamine at that time. To Mr Yehia’s credit, the writer notes that 46 hours of unpaid community work was completed and that Mr Yehia’s engagement with CCS was described as ‘adequate’. However, confirmation has been received that Mr Yehia has now been charged with subsequent further offences relating to driving whilst under the influence of drugs. These new charges fall within the operational period of the current CCO and if proven, will constitute a contravention of that order.
The writer therefore notes that while Mr Yehia has displayed some capacity to comply with the conditions of a CCO, such interventions have not successfully prevented the commission of further offences.
During the assessment, Mr Yehia reported that his offending was usually caused by his feeling bored and that his offending did not occur in the context [of] drug use. Mr Yehia reported that he has used Methamphetamine consistently during the last five to six years and that there has never been any periods of sustained abstinence in that time. Mr Yehia, whilst expressing desire to engage with the rehabilitative conditions of a CCO, has received such interventions in the past. Despite the availability of such treatment and interventions Mr Yehia has, by his own report, not achieved any substantive period of abstinence whilst in the community.
In light of the above matters, Mr Yehia is respectfully assessed as an unsuitable candidate for a CCO at this time.
Mr Yehia reported nil transitional issues should he be released from custody in the near future.”[15]
[15] Community Correction Order Assessment Outcome Report dated 11 June 2018
76 I should note here that I disregard any pending breach proceedings or other pending charges in respect of which you have not been found guilty. You are presumed innocent of those matters unless and until you admit your guilt or it is proved.
77 Your counsel did not require the author of the report to attend for cross-examination. Nevertheless he urged that I release you on a community correction order, as I have power to do, notwithstanding the unfavourable assessment.
78 In support of this submission Mr Abdi FARAH gave evidence on your behalf.
79 Mr Farah, a social worker employed by the Harmony Centre of Heidelberg, testified that he knows your brother and has met your family. The Harmony Centre regularly works with people undergoing community correction orders. If you are released on such an order the Harmony Centre could be involved in assessment and treatment component conditions. Mr Farah outlined how this might work in your case: You would be referred to Muslim Youth Adult and Family Support Services and you would also undertake individualised counselling.
80 Mr Farah spoke to you before you were remanded. Apparently you discussed your drug problem and mentioned your religious values. You told Mr Farah that you want to reconnect with your culture and your religion.
81 Mr Farah stated that the Harmony Centre has a holistic approach to treatment part of which is to engage with the whole family. An Imam is also available at the Centre to counsel and guide you. Although Mr Farah has not yet spoken to your wife, apparently your family is supportive of you, and as I understand it, would participate in your treatment through this service.
82 Mr Farah proposed a treatment regime as follows: five hours per week for the first two months, then three hours per week for a further two months, and finally one hour per week for the period that the order remains in force. Such attendance would be in addition to participating in any drug program.
Sentences to be imposed
83 I take into account all of the matters personal to you to which I have referred, including your prospects of rehabilitation. I must also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this. I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.
84 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
85 In all the circumstances I have no alternative to the imposition of terms of imprisonment on all charges, except of course for the charge of possess a small quantity of cannabis. I cannot accede to your counsel’s request that I release you on a combined sentence of imprisonment and community correction order. Even though I have power to make such an order despite the adverse report provided, I do not consider it appropriate to make such an order given your poor record of compliance in the past and your lack of commitment to treatment. The refusal to make such an order will not stand in the way of you seeking the assistance of Mr Farah and the Harmony Centre upon your release.
Indictment G12621013
86 On Charge 1, handling stolen goods, you are convicted and sentenced to twelve months’ imprisonment. This will be the base sentence for all sentences to be imposed today in respect of both indictments, the related summary offences and the sentences to be imposed in respect of appeal AP-17-2400.
87 On Charge 2, handling stolen goods, you are convicted and sentenced to twelve months’ imprisonment.
88 On Charge 3, negligently dealing with the proceeds of crime, you are convicted and sentenced to three months’ imprisonment.
Indictment G12495450.1
89 On Charge 1, use a false document, you are convicted and sentenced to nine months’ imprisonment.
90 On Charge 2, possess a small quantity of a drug of dependence, you are convicted and sentenced to pay a fine of $200.00.
Related summary charges
91 On summary Charge 5, commit an indictable offence whilst on bail, you are convicted and sentenced to one months’ imprisonment.
92 On summary Charge 6, commit an indictable offence whilst on bail, you are convicted and sentenced to seven days’ imprisonment.
Appeal AP-17-2400
93 I set aside the sentences imposed and orders made in the court below and in their stead I impose the following sentences and make the following orders:
94 On Charge 1, drive whilst disqualified, you are convicted and sentenced to three months’ imprisonment.
95 On Charge 2, drive whilst disqualified, you are convicted and sentenced to three months’ imprisonment.
96 On Charge 3, drive whilst disqualified, you are convicted and sentenced to three months’ imprisonment.
97 Under s28 of the Road Safety Act all permits and/or licences to drive that you may hold are hereby cancelled. I order that you be disqualified from driving for a period of two years effective from the date of your release.
Cumulation
98 In determining whether to order any period of cumulation, and, if so, how much, I take account of the fact that the majority of these charges are discrete, were committed in differing circumstances, and involved offending of such gravity that total concurrency would fail to do justice.[16] Further, I must give weight to the fact that the second set of offences was committed whilst you were on bail for the first. I must pay regard to principles of totality and proportionality, and I must avoid imposing a crushing sentence.
[16]See R v O’Rourke [1997] 1 VR 246, at 253; and DPP v Grabovac [1998] 1 VR 664
99 Taking into account all relevant factors, I consider that it is appropriate to order some period of cumulation between both indictments, the related summary charges and the sentences to be imposed in respect of appeal AP-17-2400.
100 I therefore direct that six months of the sentence imposed in respect of Charge 1 on the second indictment (G1249450.1) and two months of each of the sentences imposed in respect of Charges 1, 2 and 3 on appeal AP-17-2400 be served cumulatively with the sentence imposed on Charge 1 on the first indictment (G12621013), the base sentence, and with each other. That results in a total effective sentence of two years’ imprisonment in respect of all offences for which you are presently before the Court (i.e., in relation to both indictments, the related summary charges and the charges the subject of appeal AP-17-2400).
101 I will fix a single non-parole period applicable to both indictments, the related summary matters and appeal AP-17-2400.
102 In fixing the non-parole period I take into account:.
a) That a non-parole period has a punitive element;
b) That where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
c) An offender’s prospects for rehabilitation are almost always a significant consideration.
103 Taking all relevant matters into account, I direct that you serve a minimum of eighteen months’ imprisonment before becoming eligible for parole.
Presentence declaration
104 Under s18(4) of the Sentencing Act, I declare that the period of 140 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court. This one period covers all sentences imposed today.
Statement under s6AAA Sentencing Act
105 Had you pleaded not guilty to all charges but been found guilty of them, I would have imposed a total effective sentence of thirty-two months’ imprisonment in respect of all offences for which you are presently before the Court (i.e., in relation to both indictments, the related summary charges and the charges the subject of appeal AP-17-2400). I would have directed that you serve a minimum of twenty-two months before becoming eligible for parole.
Ancillary orders
Forfeiture order
106 Upon the conviction of Mohammed Yehia on 9 July 2018 on a Schedule 1 offence, namely handling stolen goods, times two and negligently dealing with proceeds of crime, the court orders pursuant to s.33(1) of the Confiscation Act 1997 that he property referred to in the Schedule be forfeited to the minister.
107 MR SINGH: As Your Honour please.
108 HER HONOUR: Sorry, Mr Nikakis, I thought you had consented that order but is that correct?
109 MR NIKAKIS: I consent, yes, Your Honour.
110 HER HONOUR: Thank you.
111 MR SINGH: I thought we indicated that, Your Honour.
112 HER HONOUR: Yes.
Disposal order
113 Turning to the disposal order. I take it that's also by consent?
114 MR NIKAKIS: Yes, Your Honour.
115 HER HONOUR: Thank you. Upon the conviction of Mohammed Yehia on 19 February 2018 of a number of Schedule 1 offences, namely possess drug of dependence, Cannabis L, and using a false document and upon being satisfied that the property referred to in the Schedule is a drug of dependence that was used or was intended to be used in or in connection with the commission of the offence or was derived or realised directly or indirectly by that person or another person from the commission of the offence, the court orders pursuant to s.78(1) of the Confiscation Act 1997 the forfeiture to the State of the property referred in the Schedule and I further direct that it be placed in the custody of the chief commissioner of police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested or analysed and then destroyed.
116 MR SINGH: As Your Honour pleases.
117 HER HONOUR: Is there anything further?
118 MR SINGH: No, thank you, Your Honour.
119 MR NIKAKIS: No.
120 HER HONOUR: Thank you. Please remove the prisoner. I thank counsel for their assistance.
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