Director of Public Prosecutions v Zoghaib, Mohamed
[2012] VCC 1946
•27 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01857
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMED ZOGHAIB |
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JUDGE: | His Honour Judge Gullaci | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 27 November 2012 | |
CASE MAY BE CITED AS: | DPP v Zoghaib, Mohamed | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1946 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cronin | |
| For the Accused | Mr S. Ginsbourg |
HIS HONOUR:
1 Mohamed Zoghaib you pleaded guilty to Charge 2, recklessly causing injury, maximum penalty is five years imprisonment. Charge 3, robbery, maximum penalty 15 years imprisonment. Charge 4, theft, maximum penalty ten years imprisonment. The circumstances of your offending have been set out in a Crown opening, Exhibit C, and are as follows.
2 On 31 December of 2010 the complainant attended a New Years Eve celebration at Etihad Stadium. During the course of that attendance he met Monique Monaco and exchanged telephone numbers. There was further contact between the complainant and Monaco, and arrangements were made to meet on 16 January of 2011. The complainant travelled to Altona Meadows, ultimately met the co-accused Monaco, and she directed him to a park being A.B. Shaw Reserve in Altona Meadows.
3 The complainant parked his car and he Ms Monaco were talking. A short time later a Ford Falcon drove into the car park and parked directly behind the complainants vehicle, boxing him in. An unidentified male exited the passenger side of the vehicle, went to the drivers side of the complainant's vehicle, opened the door, punched the complainant to the face and pulled the keys out from the ignition. There was some struggle, and the unknown male grabbed the complainant by the legs and pulled him from the car.
4 As the complainant lay on the ground this male punched him repeatedly in the face. The male told the complainant to get up and fight like a man. The two men began to wrestle, and the complainant had that male in a headlock when you, Mr Zoghaib exited the drivers side of the vehicle, approached the complainant and punched him to the head. This attack on the complainant is the basis for recklessly causing injury.
5 The complainant recognised you from New Years Eve when he had exchanged numbers - telephone numbers with Ms Monaco, the co-accused. Whilst the complainant was being assaulted Monaco got out of his car and into the rear of the Ford Falcon. Subsequently the complainant saw the unidentified male was holding two knives. He then started kicking the complainant. You and the unidentified male spoke in a language other than English before the unidentified male told the complainant to:
6 "Sit on the ground and look away."
7 You stood at the drivers door of the complainant's car and asked him what sort of phone he had. He told you he had an iPhone 4. you then leant into the car and took that phone. The complainant tried to get up, but the other male kicked him again. You then opened the boot of the complainant's car, and said:
8 "Nice sub."
9 You then took the sub woofer from the boot of his car and placed it in your vehicle, the Ford Falcon. These items are the basis for the charge of robbery. You then returned to the complainant's vehicle and looked at his wallet. You asked him what ATM card he used and he told you it was a yellow one. You asked him for the pin number and you were provided that pin number by the complainant. You told the complainant we are going to take out the money but if you try a runner or anything we have got your address. You then took a photo of his drivers license using your phone. You and the unknown male returned to the Ford Falcon where Monaco was already seated, you drove to a Commonwealth ATM in Altona Central, you performed a balance enquiry on his account which contained $292.30 before withdrawing $290. That is from the account. That is the basis for the charge of theft.
10 A short time later you returned to where the complainant remained at the park, the unidentified male threw his car keys and ATM card on the ground, as the complaint bent over to pick up his belongings this male kicked him to the head before the group drove off.
11
The complainant did not report the incident to the police until 31 January of 2011 because he was fearful of repercussions. As a result of the attack he received multiple bruises to his face. You were arrested on
17 February and a search warrant was executed at your home. As a result of that search warrant various items were seized, including a white Nokia E63 mobile phone located on your bedside table.
12 You were transported to the Altona North Police Station and a record of interview was conducted. That record of interview is summarised in the Crown opening, I do not propose to repeat it. On 25 March 2011 your mobile phone was provided to E-Crime where an analysis was conducted. On you mobile phone were a number of SMS messages from Monaco including one at 8.06.07 pm, which reads,
13 "Soon I'm gonna - he's gonna come and see me tonight LOL, where do I tell him to meet me."
14 Further there was a message received at 10.37, and that is after the money had been taken out of the ATM machine, which reads.
15 "Hey Ziggy that guy I met up with is forcing himself on me, please help me, in Hall Avenue Park, please man hurry."
16 Also located on your phone were three images, one of which appears to be that of the Victorian drivers licence.
17 I turn to factors personal to you. You are now 22 years of age, you reside with your mother. You were born and educated in the western suburbs and are one of six children. Your education was interrupted and effected by the death of your father on a holiday to Lebanon when you were 14 years of age. You left school in Year 11, and have worked as a delivery driver or a courier.
18 Your mother has health issues and you help her with chores, and of financial assistance to her. You and other members of the family pay the mortgage payments. Evidence was called from your brother Yousef Zoghaib, and your brother-in-law that spoke of your greater involvement with the family, and changes that have been observed by both of those witnesses since you were charged with these offences, and your asserted remorse for the current offending.
19 I have taken into account the evidence of these witnesses as to your recent conduct. However there is a level of concern when your brother had no awareness of your previous criminal offending, or that your brother and your brother-in-law had limited knowledge of any of your offending, either currently or in the past.
20 However I accept that both of these witnesses are concerned for you, and are supportive of you, and both are good influences on you if you choose to follow their advice.
21 I turn to factors to be taken into account in your favour. (1) You were 20 years of age at the time of offending, and are still a youthful offender at 22 years of age currently.
22 (2) You have significant family support, however in the past you have deliberately kept from them your previous criminal offending. (3) You provide comfort and security for your mother. (4) You pleaded guilty at the earliest practical opportunity, despite pleading after the trial had been opened, and a jury empanelled, and in fact the victim had already given evidence-in-chief. However in my view you are entitled to a full discount for your plea of guilty.
23 (5) You have offered in the past to plead guilty to various offences from an early stage. (6) There is some limited delay whilst the parties negotiated a settlement. (7) You have no prior court appearances or convictions for violence. (8) You have not offended by the commission of similar offending since being charged, and have only committed offences on 24 August of 2011, which are driving offences and unlicensed driving.
24 (9) You faced a significant consolidation of numerous offences on 18 April of this year, and was sentenced to a suspended term of imprisonment and a community corrections order, which is still current. (10) You have prospects of rehabilitation. (11) You have full-time employment available to you as a courier. (12) Your rehabilitation is a proper matter for the court to consider in determining an appropriate disposition.
25 I turn to submissions of your counsel. Your counsel submitted that the circumstances of your offending warranted (a) The imposition of a term of imprisonment wholly suspended together with a fine, or (b) The imposition of a community corrections order to run concurrently with the community corrections order that you are under at the moment to ensure that you achieve rehabilitation.
26 Mr Ginsbourg submitted that it was not appropriate for the court to impose any term of imprisonment to be immediately served, particularly in view of what he then submitted was compliance with the community corrections order which was in place.
27 Mr Ginsbourg relied on the matters listed above as matters to be taken into account in your favour, and in addition submitted (1) That you intended to have a confrontation with the victim to tell him to stop abusing Ms Monaco on Facebook, and did not intend to assault him or commit any other offences. He submitted that the co-accused got out of hand, and that you joined in, and that the robbery and theft were not premeditated but were more opportunistic and impulsive.
28 I am satisfied beyond reasonable doubt that you attended at the car park in order to at least commit an assault on the victim. I have come to this conclusion for the following reasons. (a) Your attempts to conceal the identify of the motor car by either removing the number plates, or having your lights on high beam. (b) That the victim was immediately struck, dragged out of his vehicle and told to sit looking away from where his own car was parked. (c) That you boxed in the victim's car, and immediately the co-offender got to the complainant's car the keys were removed from that vehicle. (d) Your subsequent criminal conduct that you engaged in once the victim was rendered helpless.
29 The second submission of your counsel was that you were remorseful. You have told your brother, and brother-in-law, and now the community corrections order assessor that you were remorseful. You told your family members you were sorry for your conduct. I am not satisfied on the balance of probability that you are not genuinely remorseful for the following reasons.
30 (a) Attempts in the record of interview to reduce your role and direct blame to the co-accused. (b) The lies that you told the police in order to portray yourself as the hero, saving the co-accused Monaco from rape. (c) That you took photographs of the identity document of the victim and the threats uttered to him to ensure that the attack and robbery was not reported. (d) Your agreement to have the co-accused Monaco send a self serving text message alleging that she was being molested or raped by the complainant, after in fact you had completed the attack and robbery on the victim, and had already taken the money from the ATM.
31 (e) Despite professing remorse to your brother and brother-in-law in this court you were maintaining at trial that you did not commit the offences of robbery or theft.
32 (3) Your counsel submitted that you - as I noted above, that you had been compliant with the community corrections order imposed in April of this year, and the court should impose a further community corrections order for the current offending in order for you to be fully rehabilitated. In order to have all alternative dispositions available to the court I directed that you be assessed for suitability for such an order.
33 I now have an original report, and an amended report from Peter Bain from Community Correctional Services, that concludes that you are unsuitable for such an order because of your extremely poor compliance with the current order imposed on 18 April of this year. Since that date you have incurred a total of seven unacceptable absences from unpaid community work, and two unacceptable absences from supervision.
34 Today your counsel Mr Ginsbourg submitted that your position has changed, that you are now obviously in custody, and you are now motivated to comply with any further community corrections order imposed by the court, together with any term of imprisonment to be immediately served. As I understood Mr Ginsbourg's submissions he acknowledged that any such term to be imposed would be limited to a period of up to three months. However he seemed to today be conceding that some term of imprisonment to be immediately served was warranted.
35 Mr Ginsbourg also submitted that the court should take note of the Crown's submissions as to any interference with your drivers license, and the principles that are set out in R v Lefebure [2000] VSCA 79, as to the court exercising its discretion to interfere with any license held by you.
36 The learned Crown prosecutor initially submitted that a community corrections order was within range. As I understood what he told the court he expressed the view that the - a community corrections order was an appropriate disposition, and that no term of imprisonment should be imposed whether suspended or otherwise.
37 In my view a community corrections order is outside the proper range of disposition in this case for the following reasons. (1) The objective circumstances of your offending. (2) That you have a history of dishonesty offences. (3) The impact on the victim. (4) That you are to be sentenced on three discrete offences arising from the one course of conduct. (5) That you are assessed as unsuitable for a further community corrections order.
38 Subsequent to the court providing the Crown and the defence with the current community corrections order assessment, the Crown has changed its sentencing range as I understand it. The Crown now submits that due to your non-compliance with the current community corrections order, and that you have been assessed as unsuitable for a further order, that an appropriate sentence was a head sentence of two to three years with a non-parole period of 12 to 18 months.
39 Further Mr Cronin submitted after the court drew to the parties attention the issue of any interference with the license held by you, that the court had power pursuant to s.28 of the Road Safety Act to cancel any license held by you, and disqualify you for a period of time. However the Crown submitted that considering the principles set out above in the R v Lefebure that the Crown did not submit that there should be any interference with your license.
40 I am satisfied beyond reasonable doubt that the offences you pleaded guilty were committed in connection with the driving of a motor car, and that as a result there should be some interference with your license for the following reasons. (1) The planing and execution of your criminal offending involved the use of a motorcar in your possession. (2) The need to deter you from using a motor vehicle in this manner again in the future. (3) The significance of general deterrence, not only in respect of this matter, but general deterrence as it is to be considered in the overall circumstances of your offending.
41 However as indicated to your counsel during debate in my view any term of disqualification should not be one that hinders you from resuming your employment as a courier, or hindering your prospects for rehabilitation. You have ten findings of guilt or prior convictions from three court appearances between 2007 and 2009. These include thefts by three and burglary. You also face the consolidation in April of this year, which involved numerous charges on different occasions for driving offences, thefts, handling stolen goods and deception. Some of these offences dated back to 2009, and there were offences in 2010 and 2011. In my view these matters are proper matters for the court to consider in determining the weight to be given to specific deterrence and assessing your prospects for rehabilitation.
42 In my view, as I said above, you have prospects for rehabilitation. You are youthful, you have available to you full-time employment. You have a supportive family, and you have the capacity to work. However in my view you have a history of dishonesty offences, and have engaged in serious offending in respect of the current matters. You have a history of poor compliance with the current community corrections order. The sentence of the court must be one that deters you from offending in a similar manner again in the future.
43 As I have already noted general deterrence is a significant matter for the court to consider in the circumstances of this offending. You and the co-accused physically attacked the victim and rendered him helpless. You then robbed him and stole money from him using his ATM card. You then sought to intimidate the victim not to report your offending, and set out to concoct a plausible explanation with your other co-accused
Ms Monaco to explain why you had attended at the park.
44 In my view you devoted significant thought to this offending, and were determined to deflect attention to the unknown male, and made significant efforts to set up a false account with Ms Monaco in an endeavour to explain you presence at the park and avoid detention. In my view your moral culpability is of are the highest order.
45 The impact on the victim is significant. Your counsel submitted to the court that the victim had fully recovered from any injuries suffered by him by the time he had complained to the police two and a half weeks later. The victim, Michael Ventura in his victim impact statement states that the incident had a major impact on his life in more ways that one. He still feels scared and afraid of going out and socialising, he suffers sever panic attacks, has trouble sleeping and is angry and frustrated.
46 He feels traumatised by a knife being held to his throat, and feels he will never be the same person again. He struggles to hold down a permanent job. I note that the Crown does not allege that you were aware that the co-accused had a knife or knives, or used it as described by the victim in his evidence.
47 I have not taken into account in determining an appropriate disposition or sentence, the fact that the co-accused had a knife. In my view, and I make it clear, you are to be sentenced on the basis that there was no knife, as the Crown has accepted that you were not aware that the co-accused had a knife and used it in the manner described.
48 Clearly some of the matters that the victim refers to in the victim impact statement are directly attributable to the use of a knife. I have endeavoured to balance that by limiting the impact of the victim to the best of my ability. However it is clear that being attacked in the way that he was attacked, and robbed, and had his property stolen, that that traumatised the victim, and that he has suffered a significant impact as a result.
49 In my view the court must take into account your youth, lack of prior convictions for violence, other matters personal to you, particularly your plea of guilty, and personal history. However the aim of the court to achieve your rehabilitation must be considered in light of the aggravating factors that exist in this case.
50 Which are in my view these. (1) The victim was not in the process of attacking sexually or raping the co-accused, he was seeking to simply socialise and spend time with her. (2) It was agreed between you and the co-accused Monaco that she would direct him to a lonely place and then you would attend. (3) The attack on the victim was sustained, and you are indeed lucky that he did not suffer more significant physical injuries. (4) The attack was in a lonely place, in darkness, apart from the high beams of your car, on the complainant and the surrounding area. The complainant was quickly rendered helpless, and you were a significant player. Or you played a significant role in the robbery and theft of the victim's money. (5) You then concocted a false reason why you attended at the park, and (6) you maintained that lie when questioned by police.
51 I have considered your counsel's submissions as to an appropriate disposition, and have in the end determined to reject his submissions for the following reasons. (1) The objective circumstances of your offending, and that you face three discrete charges. (2) The impact on the victim. (3) The aggravating factors that exist as set out above. In my view the court must impose a term of imprisonment to be immediately served. Your rehabilitation can be enhanced by the fixing of a significant period of supervision by the parole board.
52 I have considered how the sentences to be imposed relate to each other, and have determined there should be some cumulation for the following reasons. (1) The offences are discrete. (2) The total effectively sentence should reflect your total criminality. I have also carefully considered the minimum term, and have fixed that term keeping in mind the following. In particular (1) The circumstances of your offending. (2) Your plea of guilty. (3) Matters personal to you, and particularly your age and lack of convictions for violence. (4) That you will benefit from a period of supervision by the parole board which will assist you to achieve rehabilitation. Stand up please.
53 The formal order of the court is as follows with conviction on three charges. On Charge 2, recklessly cause injury you are sentenced to eight months imprisonment. On the alternative to Charge 3 which was originally armed robbery, and you pleaded guilty to the charge of robbery, and you are to be sentenced for the charge of robbery, you are sentenced to a term of 18 months imprisonment. Charge 4, theft, you are sentenced to four months imprisonment. I order three months of the sentence imposed on Charge 2 and one month of the sentence imposed on Charge 4 is served cumulatively on the sentence imposed on the charge of robbery, and on each other. The total effective sentence is 22 months. I fix a minimum term of seven months before you become eligible for parole.
54 Pursuant to s.18 of the Sentencing Act I declare a period of 11 days be reckoned as already served, and direct that be noted in the records of the court. Pursuant to s.6AAA of the Sentencing Act I inform you that had you pleaded not guilty and were found guilty by a jury I would have imposed a head sentence of 36 months and fixed a minimum term of 18 months.
55 Pursuant to s.28 of the Road Safety Act any license held by you is cancelled, and you are disqualified from obtaining any license for a period of six months from this date.
56 That completes my remarks, any matters that counsel want to raise. Yes, Mr Zoghaib you are now excused.
57 Yes, adjourn the court until tomorrow, thank you.
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