Director of Public Prosecutions v Youssef

[2014] VCC 1949

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-14-01573
CR-14-01657
CR-14-01658

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALI YOUSSEF

---

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2014
DATE OF SENTENCE:	19 November 2014
CASE MAY BE CITED AS:	DPP v Youssef
MEDIUM NEUTRAL CITATION:	[2014] VCC 1949

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:             Sentence – Armed robbery – Blackmail – Summary offences – Subsequent offences committed whilst on bail for first Armed robbery – Immature youthful offender with limited cognitive capacities – Offending occurred in the context of taking of Ice

Sentence: Total Effective Sentence of 3 years’ imprisonment with a non-parole period of 18 months’ imprisonment – s.6AAA Sentencing Act 1991 declaration – Pre-sentence detention of 196 days – Disposal and compensation ancillary orders

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms. R. Harper (Plea) Ms K. Aaskov (Sentence)	Solicitor for Public Prosecutions
For the Accused	Ms. C. O’Shea	Victoria Legal Aid

HER HONOUR:

1       Ali Youssef, you have pleaded guilty to four charges of armed robbery, each of which carries a maximum penalty of 25 years' imprisonment.  You have also pleaded guilty to one charge of blackmail which has a maximum penalty of 15 years' imprisonment.  Further, you have pleaded guilty to the summary offence of assault with a weapon which has a two year maximum penalty; drive whilst authorisation suspended, which has a maximum penalty of four months' imprisonment and committing indictable offence whilst on bail, which has a maximum penalty of three months' imprisonment.

2       Your offending was opened as follows.

3       I was told that you were twenty years old at the time of the offending.  I understand you are now 21.

4       There are three incidents which occurred within a short space of time of each other giving rise to the charges on the indictment. 

5       The first incident occurred on 5 April 2014.  Shortly before midnight on 4 April 2014, you went to a Macdonald’s restaurant or café in Preston where the first victim, Trong (Chris) La, was working as a security guard.  You and Mr La were known to each other, so when you called him to come outside, he went to speak to you.

6       You told Mr La about an issue with the Comancheros sergeant, saying that a few weeks ago Mr La had made comments about the sergeant’s girlfriend, calling her “a slut.”  You said that Mr La had to give you something of worth or else the Comancheros sergeant would kill Mr La.  Mr La told you he had not done anything but you told him that you were following orders.

7       

The first victim tried to change the subject, speaking about motorcycle gear he had lent you a week earlier.  You said that the Comancheros sergeant would not allow you to give this back.  Mr La then showed you some photos on his mobile suggesting that you were trying to sell his gear on the internet.

You denied that you were doing this however and you grabbed Mr La’s phone, refusing to hand it back.

8       You asked Mr La how much money he had in his bank account and said that you wanted him to accompany you to the BP service station across the road to obtain money from the ATM.  Mr La refused and you then went inside Macdonald’s with his phone.  I understand that Mr La then followed you in, trying to retrieve his phone; but at some stage shortly afterwards he was called to an incident which he had to deal with as part of his work.  A short time later, a Mohammed Koudsi and a Damian Nuzzo arrived at the Macdonald’s car park in a silver Camry.  Mr La and you went outside and after some discussion, the first victim went to the BP service station with you in the hope of retrieving his phone. 

9       

At the service station, you demanded that Mr La take money from the ATM.

The victim deliberately entered the wrong PIN number on four occasions and you grew increasingly frustrated.  You then told him to forget about it and said that you were going to take his phone.  You returned to Macdonald’s where a white van pulled up with two men inside who were unknown to Mr La.  You opened the door and said “Get in, or do you want to get the money?”  Mr La refused to get in and said he would get the money.  You and Mr La then returned to the BP service station where he again entered the wrong PIN number into the ATM and was unable to obtain funds.  You and he left, before returning to the same ATM a third time, again without obtaining any money.  You yelled at the first victim then returned to Macdonald’s. 

10      

As you and the victim were about to enter the store, you pushed Mr La into the white van.  As Mr La jumped up, you produced an open silver flick knife from the right pocket of your pants and threatened him with it.  This gives rise to the summary offence of assault with a weapon.  You asked Mr La if he wanted to fight back before directing him to the Shell service station nearby.

Again, Mr La put the wrong PIN number into the ATM and was able to alert the store attendant that he was in trouble. 

11      You and the first victim returned to Macdonald’s where you directed Mr La to get into the Camry with Koudsi, Nuzzo and yourself, whilst the two men in the van to whom you referred as Chris and Maddie, got into their vehicle.  Mr La got into the car because he knew the driver and felt more comfortable getting into a car rather than a van.  Mr Koudsi then drove to an ATM on the corner of High and Rosberry Streets, with the van following.  Again, Mr La entered the wrong PIN number before you directed him to an ANZ ATM nearby.  The victim entered the wrong PIN number four times at this location before getting back into the car with you.  You forced him to try both internet and phone banking to obtain money as well.  You all then went to ATMs at the Bell City complex where Mr La again entered incorrect PIN numbers. 

12      You eventually said to Mr La that if you could not get the money from him that day, you would get it from him the following day.  Mr La agreed with this in order to retrieve his phone.  However, you refused to give it back.  Mr Koudsi drove to a service station where he obtained fuel and then stopped at a nearby car park.  Mr La grabbed you in a head lock from behind and you responded by producing and swinging the knife at him. 

13      Nuzzo broke up the fight.  You put the knife down and Koudsi drove towards Macdonald’s.  You again insisted that Mr La try to get money via phone banking but he answered security questions incorrectly and was told to go to a branch.  You then said “All right, I'll come to your house tomorrow morning and get the money off you then, if not, you’re fucked.”  After returning Mr La’s SIM card, security licence and motor cycle learner’s permit and phone case, you demanded Mr La’s wallet.  The victim said that you had the knife in your hand and looked like you were losing it.  He gave his wallet to you which contained bank and other personal cards.  This gives rise to Charge 1 on the indictment, armed robbery.

14      You then said “I know where you live, don’t fuck with me” as Mr La was dropped off near the Bell Street train station.  Mr La returned to Macdonald’s at about 3.00am where the police were waiting and reported the incident.

15      

You returned to Macdonald’s at about 3.30am with Nuzzo to collect your car.

You were arrested by police and taken to the Heidelberg Police Station.

Police found Mr La’s CBA bank card and two flick knives in your possession at the time of arrest. 

16      You took part in a taped record of interview on 5 April 2014 during which you denied allegations put to you.

Incident 2 – 9 June 2014

17      In relation to the second incident, at about 8.30am on 9 June 2014, the second victim, Dimitrios Miliadis, was visiting his friend, Patrick Polidori, at his home in Mill Park.  You were also a friend of Mr. Palidori’s.  At about 9.00am, you arrived at the house and introduced yourself to Mr Miliadis.  All three of you were at the house until about 12.30pm when Polidori asked you to leave.

18      Miliadis asked you if you could drive him home as he was unlicensed.  You agreed and drove him home in your red BMW.  As your licence was suspended at the time, this conduct gives rise to the summary charge of driving whilst your authorisation was suspended.

19      

You stopped your car in the car park of Greenvale Reserve and questioned Miliadis about money he was to receive from an insurance claim which had been submitted in respect of a stolen vehicle.  You produced an imitation hand gun which was partially wrapped in a towel from under the driver’s seat.

You pointed the imitation firearm at Miliadis and demanded that upon receiving the insurance money he would give you $2,500.  Miliadis told you he had not received the money but you told him that he must give this to you immediately upon receiving it.  During the course of this conduct in which you menaced the victim with the imitation firearm, you also produced a knife from your pocket and showed it to Miliadis.  This conduct gives rise to Charge 2 on the indictment, the account of blackmail.

20      You then drove the second victim to Forensic Drive, Macleod and again stopped the car.  You told Miliadis to hand over his iPod and wallet and that if he did not cooperate, you would shoot or stab him.  Mr Miliadis said that he felt like you were about to stab or shoot him and he felt really scared, thinking you might actually do this.  He gave you his iPod and wallet which contained identification, cards and cash.  This gives rise to Charge 3 on the indictment, armed robbery and also the uplifted summary offence of committing an indictable offence whilst on bail. 

21      

You drove Miliadis home.  On the way, you made threats against him and his family.  You arrived at Miliadis’s home at about 3.25pm and parked your car in the driveway.  You then stood beside your car.  Mr Miliadis entered his house and locked the door behind him.  You drove away a short time later.

Mr Miliadis reported the incident to police, identifying you from a photo board on 10 June 2014.

Incident 3 – 16 June 2014

22      In relation to incident three, I was told that on 16 June 2014, in Waiora Road, Heidelberg West, police intercepted you and impounded your car for excessive speed.  You and a female friend were left on the side of the road.

23      At about 11.20pm, the third victim, Nadin Boutros, called you, telling you that she had been given your number by a friend and wished to arrange for the purchase of cannabis.  At about 12.30 you called Boutros back  and said that your car had been impounded and asked her to pick you up from West Heidelberg.

24      Shortly after this, Ms Boutros and her boyfriend Nicholas Day collected you and your female friend then drove towards Northland Shopping Centre. At a nearby intersection you told Boutros to stop the car. As your friend got out of the car you grabbed Mr Day from the back seat, placing him in a headlock with your left arm. You produced a small triangular blade and held it to Mr Day’s side with your right hand, demanding everything from him saying you were collecting a debt for someone to whom Day owed $2500. In fear, Mr Day handed over his Apple Iphone 5S, a ‘bumbag’ and wallet containing cash and personal cards. This gives rise to Charge 4, Armed Robbery.

25      Mr Day pleaded with you but you repeated that you were collecting a debt. You said that you were told to slash Mr Day open but would do him a favour and not cut him. You then saw Ms Boutros’ Apple Iphone 5S in the centre console and you took this also.  This gives rise to Charge 5, Armed Robbery.

26      The matter was reported to the police; you were captured on a CCTV camera from a nearby house.

27      When police searched your red BMW which had been impounded they found an imitation hand gun and a knife which matched the description of the weapons used against Mr Miliadis.

28      You were arrested on 23 June 2014 and interviewed in relation to the charges involving Miliadis but denied allegations put to you and made no comment answers in respect of evidence put to you.

29      On 2 July 2014 you were interviewed in respect of charges involving Boutros and Day.  You said that your car had been impounded and a friend had arranged for the victims to collect you and a friend. However, you denied the allegations put to you.

30      Mr Youssef, objectively, your offending is most serious and must be denounced.  I must impose a sentence which is just in all of the circumstances. You behaved like a thug in a B Grade gangster movie, with little regard for the welfare of those you were offending against.  To behave as you did is certainly no badge of honour; nor is your present situation being in gaol.  You are right to feel ashamed of what you have done.

31      All of the offending after Charge 1 is aggravated by the fact that you committed these offences having been arrested and bailed in respect of that first armed robbery. In saying this, I am mindful of the fact that you are also to be sentenced for committing an offence whilst on bail and you are not to be double punished in this regard. However, after the seriously protracted offending against Mr La in which you behaved in a most frightening manner, and having been placed on notice by police intervention, that you had behaved in a criminal manner, you embarked on further thuggish behaviour only two months later. Further, you committed all of these offences whilst being subject to a community corrections order which was imposed on 24 September 2013. You were not obviously engaging in any meaningful way with that order which was designed to assist you in your rehabilitation.

32      Mr La prepared a victim impact statement, part of which was read aloud in court at the plea hearing.  It is plain that Mr La has been deeply affected by your conduct, which is to be expected.  He now has trouble trusting people and in making new friends.  He had already been traumatised by the tragic death of a friend in not dissimilar circumstances, and your behaviour has triggered some very bad memories in this regard.  Although you weren’t to know that Mr La had experienced this tragic event in the past, you take your victims as you find them.  He has been struggling with his sense of well-being since your offending but believes he has improved somewhat with the help of family and friends.  He may consider counselling to assist him in his recovery, which, if I might say so, is a very good idea.

33      You have one previous court appearance where you were convicted of theft, unlawful assault, and an aggravated burglary where the circumstance of aggravation was possessing an offensive weapon.  I was told that these offences were committed in the context of a dispute between your father and a neighbour, which led to you intervene.  You were sentenced to the community corrections order to which I previously referred which was to endure for 12 months and involved 150 hours community work and programs to reduce re-offending such as anger management.

34      

I factor in that your previous offences also involved violence, albeit in a different context to those before me.  They also involved inherently a weapon.

In your favour, this is the only previous court appearance, which is often not the case for people in your position.

35      I was told that at the time that you committed each of the offences for which I now sentence you, you were affected by the drug “ice.”  This adds to the potential dangerousness of your conduct.  In saying this, I do not count this aspect as an aggravating feature, nor is it a mitigating one.  I was told that you have limited cognitive capacity and in this regard, I was referred to a report from Ms Lechner psychologist dated 9 November 2014. She has not treated you but has now assessed you on two occasions.  The first time in August 2013 in respect of your prior offending. She examined you again on 7 October 2014.

36      She found that you were cognitively and emotionally immature and that your intelligence was in the borderline range. This might be so, but in my view, you showed a degree of animal cunning and inventiveness in carrying out the offences on the indictment.

37      However, I accept that the combination of your youth, immaturity and limited cognitive capacities when further impacted by ice, made for a dangerous and most unfortunate cocktail.

38      In relation to the circumstances of your offending I was told that you maintained a genuine belief that Mr La owed you money.  Even if that were so, the methods you employed were outrageous.  However, I note that your demand of him was not on the basis of a debt he owed, but rather that he had insulted a bikie’s girlfriend and he had to pay a penalty.

39      In respect of the third incident, you maintain that you were collecting a debt for an associate.  It does not appear however that Mr Day and Ms Boutros knew you or any associate.  According to the opening, Ms Boutros called you, having been given your number by someone else.  In any event, if you saw yourself as some sort of “stand-over” man collecting debts for associates, this is of concern in itself.  Certainly, you told Ms Lechner that you were a middle man who was, "Forced to go and get that money armed with a knife and a fake gun".  I take it that this was a reference to the second incident, which involved a charge of blackmail, notwithstanding that Ms Lechner refers to this being your explanation for the ‘armed robberies’.

40      In the end, I am not satisfied on the balance of probabilities that you genuinely believed you or another person were entitled to any of the monies you demanded from the victims, although even if this were the case, I would not have thought that this would be something you could call in aid as much of a mitigating feature.

41      I take into account your pleas of guilty and the stages at which these were entered.  In respect of the first incident you entered your plea at a further initial directions hearing in this court, after a contested committal hearing, apparently feeling remorse when you witnessed some of the prosecution witnesses giving evidence.  It is unfortunate that it took this for you to realise the impact of your offending upon others.  However, in pleading guilty after the contested committal hearing I allow for a discount which is not insignificant in all the circumstances you having saved the witnesses, especially Mr La, the time and trauma of giving evidence at trial and having saved the community the time and expense of running a trial.  In respect of the second and third incidents you are entitled to a significant discount in the sentence you would otherwise receive as you have saved the witnesses especially the victims the time and trauma of giving evidence at committal and trial and you have saved the community the time and expense of such proceedings.

42      I factor in that the offences all occurred within a fairly short space of time of one another in the context of you abusing ice.

43      As to remorse, you have told Ms Lechner that you regret your actions, describing them as dangerous, stupid and disgusting.  You said that you felt really bad for the victims because of what you had put them through.  Your cousin, Ms Savah, who gave evidence in support of you, also said that you were very remorseful and wished that you could turn back time and rebuild your reputation.  In the end, I find that you are sorry for what you have done, albeit that it has taken a good deal of time and reflection to arrive at this state of mind.  However, I am concerned that you maintain your view that you or another were owed monies which indicates that you have some way to go in terms of developing full insight into your offending.  In any event, I allow for some genuine remorse which is a good sign in terms of your rehabilitation.

44      I take into account Ms Lechner’s diagnosis that you have developed a stimulant use disorder which is now in remission.  As your offending and drug use are directly linked this is another positive factor in your favour.  It is still early days however.  I should tell you Mr Youssef, that there is a link between your drug abuse and offending such that if you resume drug abuse in the future and commit offences your decision to take drugs may well be viewed as an aggravating feature by any judge who sentences you for that offending.  This means that you would be at risk of receiving a higher sentence for future offending than might otherwise be the case.

45      I take into account your background.

46      You were born in Australia to parents who were born in Lebanon.  Your parents are very hard working and are a strong support you have to look to in the future.  You went to a local Islamic school and unfortunately you were bullied as you were the only Shiite person at the school.  You left school at Year 11 then completed Year 12 VCAL at TAFE.  You found this a liberating experience.  You embarked upon a plumbing pre-apprenticeship but ultimately found it difficult to hold down a job in this area for various reasons.  You have also worked as a plasterer.  You hope to able to pursue work as a painter with the uncle of a friend when you are released although much will depend on the availability of sufficient work at that time.

47      

You are now in another relationship and your girlfriend is five months pregnant with your child.  It is to be hoped that you are a good role model for your child.

I was told that your present girlfriend has nothing to do with the drug scene.

48      

Your time in prison on remand this time around has proven to be a positive experience for you.  You have developed insight into your drug use, having experienced depression when coming down off the drugs.  At one point you had felt that nobody wanted you and took some steps to end your life.

Fortunately, you are now in a better frame of mind.  You have resolved to maintain closer contact with your family who fully support you, and to turn away from the negative influences that have been in your life in recent times.

49      Toward the end of 2013, you were unemployed and were experiencing difficulties in a long term relationship you were in.  You were mixing with people who used drugs, and your drug use escalated when your relationship finally ended.

50      Your cousin, Ms Savah gave evidence that you were brought up in a fairly traditional Muslim household and that strong expectations were placed on your shoulders, which may have been part of the reason that you went off the rails.  She also said that you have been the ‘go between’ in respect of some marital problems that your parents were experiencing which was another pressure which might have brought about your resort to a poor peer group and to drugs.  She spoke very highly of you as a loved member of her family and as a hard worker.  At around the time of the offending however, she had observed a change in your behaviour which she had attributed to your drug use and negative lifestyle.  She, like other family members, has visited you in gaol.  She said that you had now learned a great deal and realise that your family only ever wanted the best for you.

51      I accept that save for these offences and your one prior matter you are of otherwise good character.

52      I was told that you are currently working as a billet at the MRC and that you work out in the gym.  You have applied for drug counselling and anger management programmes.

53      

Whilst there are some positive indicators for your rehabilitation and this is something that I must be concerned to maximise because of your youth, in view of your offending and fairly recent abstention from drugs, your prospects of rehabilitation are guarded.  Your strong family support, your preparedness to work and the expectation of your child as well as your pleas of guilty, remorse and limited criminal history however all bode fairly well for the future.

Much will depend upon you being able to continue on the positive path that you have now commenced to take.

54      In all of the circumstances, I place moderate weight on specific deterrence and protection of the community.  I place strong weight on general deterrence in a bid to deter other people from behaving as you have.

55      

Ms O’Shea, who appeared on your behalf, sensibly acknowledged that an immediate term of imprisonment was warranted in your case.  She submitted that a period of imprisonment combined with a community corrections order was appropriate, or else a period of imprisonment with a lesser than usual head sentence and non-parole period would be best in order to advance your prospects of rehabilitation.  Ms Harper, for the Crown, submitted that it would not be appropriate to accede to the first submission made by Ms O'Shea.

Having considered all the matters put to me, I agree with the Crown submission in this regard.  I have done what I can to accommodate

Ms O’Shea’s secondary submission but I cannot do so at the cost of the weight which must attach to all relevant sentencing principles.  In sentencing you however I have borne in mind your youth and the desirability to reclaim you as a positive and contributing member of this community.

56      Would you please stand up, Mr Youssef.

57      You are convicted of all of the charges both on the indictment and the summary offences.

58      I make the following ancillary orders:

59      I make an order for the forfeiture of the imitation firearm and a disposal order in respect of the knife which has been seized by police.

60      I make compensation orders in the sum of $1200 payable to Mr Day and $800 payable to Ms Boutros.

61      You are sentenced as follows:

62      Charge 1      18 months’ imprisonment

63      Charge 2      12 months’ imprisonment

64      Charge 3      20 months’ imprisonment

65      Charge 4      22 months’ imprisonment which will be the base sentence.

66      Charge 5      20 months’ imprisonment

67      Summary charges.

68      Charge 9      6 months’ imprisonment.

69      Charge10     7 days’ imprisonment.

70      Charge 11     1 month’s imprisonment.

71      I direct that four months from Charge 1, one month from Charge 2, five months from Charge 3 and four months from Charge 5 be served cumulatively with each other and with the base sentence, producing a total effective sentence of three years' imprisonment but I direct that you serve 18 months’ imprisonment before becoming eligible for parole.

72      If not for your pleas of guilty I would have sentenced you to a total effective sentence of five years’ imprisonment with a non-parole period of three years.

73      I declare that you have already served 176 days by way of pre-sentence detention.

74      Just take a seat for a moment please.  Anything arising?

75      MS O'SHEA:  No, Your Honour.

76      MS AASKOV:  Your Honour, I just have instructions that there might be an order with regards to the licence.

77      HER HONOUR:  Is that a mandatory requirement?

78      MS O'SHEA:  It is not, Your Honour.  It's discretionary.

79      HER HONOUR:  I think it is in everyone's best interests once Mr Youssef gets out of gaol to actually be able to drive.

80      MS AASKOV:  Thank you.

81      HER HONOUR:  Properly, not quickly and pursue some work so I am not going to make an order.

82      MS O'SHEA:  Thank you, Your Honour.  As Your Honour pleases.

83      HER HONOUR:  Thank you.  Yes, you may remove Mr Youssef.

- - -