DPP v Abdou

[2022] VCC 1153

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-19-02252

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAMZI ABDOU

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JUDGE:	HIS HONOUR JUDGE WISCHUSEN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 July 2022
CASE MAY BE CITED AS:	DPP v Abdou
MEDIUM NEUTRAL CITATION:	[2022] VCC 1153

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. O'Toole	Office of Public Prosecutions
For the Accused	Mr T. Smurthwaite	James Dowsley & Associates

HIS HONOUR:

1Ramzi Abdou, you have pleaded guilty to one charge of burglary intent to steal, (Charge 1), and to one charge of common assault (Charge 2).

2The maximum penalty of the crime of burglary is 10 years' imprisonment. The maximum penalty for common law assault is 5 years' imprisonment. 

3The circumstances in which the offending occurred is set out in the summary of prosecution opening for plea – Exhibit 1. 

4The background to this offending is the ending of a relationship between your recently deceased brother, Barrok Abdou, and Jennifer Christov. 

5Your participation in the offending was at the behest of your brother.

6Barrok Abdou had been in a relationship with Jennifer Christov, the complainant, and the relationship lasted for a number of years, but there had been some difficulty since at least August of 2018.  At times, Barrok and Christov had been abusive towards each other.  In August 2018, Christov moved to premises in Walnut Street, Whittlesea, a semi-rural township to the north of Melbourne.  She lived at Walnut Street with her 13-year-old son and by late 2018, had made it plain to Barrok that their relationship was at an end.

7There was some evidence at committal that after that time, Barrok and the complainant assisted each other in domestic affairs, and that even though the relationship had ended, some of Barrok's belongings remained at the Walnut Street address.  There had been some discussion about their retrieval and return to Barrok. 

8At 5.00am on 22 February 2019, you accompanied your brother, Barrok, to the Walnut Street address at his request.  The two of you were equipped with torches.  First, you inspected the garage and then Barrok overcame a somewhat flimsy and temporary fastening arrangement on an external security door in order to gain entry as a trespasser to the building.  Both of you then entered and these are the circumstances that give rise to Charge 1, burglary. 

9Once in the dwelling, Barrok shone his torch in the face of Christov, waking her from her sleep on the couch.  Also on the couch and awoken by your arrival was her friend, Noel Carroll.  Barrok began to abuse Christov by calling her a slut and a whore. 

10When she attempted to go to the toilet, Barrok struck her on the arm and pushed her back down onto the couch and kicked her shin, causing bruising. 

11You then stood over Christov, holding a broom you had brought with you from outside and shouted at her to get down.  These actions caused Christov to fear being assaulted by you and they give rise to Charge 2, common assault. 

12You and your brother stayed in the building for the next 15 or 20 minutes, continuing to yell and abuse the occupants until you left without having retrieved any of Barrok's belongings.  Other than terrorising the residents, the burglary seems to have been completely pointless.

13The offending woke Christov's 13-year-old son.  He overheard much of what went on and recorded some of that on his telephone. 

14The incident was reported to triple 0.  The police investigated and you and your brother were arrested on 25 February 2019. 

15When interviewed by the police, you admitted your involvement in large part, which included embellishing the forces available to you by telling the occupants of the Walnut Street house that there were others outside. 

16After your arrest, you were released on bail, and you have been on bail ever since.

17The procedural history of the matter as set out in the chronology that forms part of Exhibit 1.  It shows that after a contested committal in the first half of 2019, you and your brother were charged with offences that included aggravated burglary.  These charges were listed on at least two occasions for trial, but the trials were aborted because of the pandemic. 

18The charges were listed for trial again this year.  Then the proceeding was resolved by entering a plea of guilty to the less grave charges for which you are to be sentenced today.  You have admitted your criminal history.  It consists mostly of driving and theft offences, and the sentencing dispositions suggest that substance-dependence played a role in the prior offending.

19Since originally hearing the plea, I have been informed that you were subsequently charged with possess amphetamine, about a month after these events, and with driving offences that occurred in July and August of 2020.  The commission of these offences led to the cancelling of a corrections order you had been on, and the imposition of a fine. 

20You have never been imprisoned.

21You are now 51 years of age, having been born in August 1970. 

22Ramzi Abdou, I state to you that I have taken into account all the matters raised on your behalf in mitigation on penalty in the course of the plea, during which your counsel spoke to detailed written submissions – Exhibit 4.  Those submissions are supplemented by later submissions since the Corrections report was received.

23The matters raised on your behalf included your plea of guilty, entered as soon as the more serious charges were removed from the indictment, following considerable delay and after lost trial dates, due to the pandemic and further negotiations.

24It was submitted, and I accept that your plea of guilty has utilitarian benefit and has saved the community the cost and the witnesses the stress of a trial, and that additional weight in mitigation should be given to your plea in these times of pandemic.[1]

[1]Worboyes v R [2021] VSCA 169 at [35], [39]: “We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence… For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.” See also Chenhall v R [2021] VSCA 175.

25Further, it was submitted that your relatively frank exchange when interviewed by the police and your instructions, especially your concern for the teenager who was present in the house when all this took place, should be taken to be evidence of your remorse for this offending, which, viewed in the context of your past criminal history, was characterised as aberrant. 

26You are entitled to have those matters taken into account in mitigation of penalty, and I have done so.

27I have taken into account your background and personal circumstances. 

28Shortly, you and your family arrived in Australia in 1987 in order to escape the conflict in Lebanon.  You had completed school in Lebanon to the equivalent of Year 10.  In Australia, you worked as a butcher, and then on the Ford Motor Company's process line, until injuring your back at the age of 25. You have been unable to resume work since that time and have lived on benefits in respect of that disability, although whether this was worker's compensation or the Commonwealth Disability, was not made clear.

29You married your wife Haanadi in 1991 and the two of you have seven children ranging in age between 15 and 29 years.  Two of the younger children were present in court to support you on the plea.  You also have six grandchildren, and three of your own children, aged 18, 17, and 15 still live at home with you.

30Unfortunately, your wife suffered a cerebral aneurism in about 2010, and this has left her with significant disabilities in many aspects, such that she requires nearly continuous care. She is unable to cook, clean the house, or wash herself, and has to be supervised when not in the house.  This has placed a heavy burden upon you in raising, effectively as a single parent, your many children, despite your own health problems, as well as caring for your wife's disability-based needs. It was submitted in this context that hardship upon your family, should you be incarcerated, did meet the requirements that it be “exceptional”.[2]

[2]Markovic v The Queen [2010] VSCA 105

31In evidence was a report from your long-term general practitioner, Dr Rafid Ramdam – Exhibit 5.  Dr Ramdam stated that you have been treated for mental problems that included depression, anxiety, insomnia, and aggressive behaviour, and that your physical health is compromised by a number of conditions that included heart failure, ischemic heart disease, osteoarthritis, back pain, obesity, and hypertension, amongst others.  For these conditions, you are on a significant number of different medications. 

32You have already survived one episode of COVID-19. Your doctor wrote that because of your otherwise poor health, you are at greater risk of contracting and suffering severely from the newest variant.  It was submitted that the combination of your own poor health and vulnerabilities and the exceptional hardship that your absence whilst in prison would impose upon your family, and your wife in particular, should, when considered as a whole, dissuade me from the imposition of a custodial sentence for these offences.

33In evidence also was a reference from your eldest daughter, Estella – Exhibit 7.  It shows that she is heavily involved in your life and assists in caring for her siblings and her mother, despite having children of her own.

34It was submitted also that should you be incarcerated, conditions in prison during the pandemic are harsher than they would otherwise be, and because COVID-19 is now found in the prison population, the risk that this poses for you, given your comorbidities, is also significant.

35It was further submitted that I should have regard to delay as a sentencing consideration, and I accept this.  As these charges have now hung over your head for over three years they have themselves been a cause of considerable stress for you, especially as for most of that time, the charges included a charge of aggravated burglary, an offence for which imprisonment was a very likely sentencing outcome.

36As to the gravity of this offending, it was submitted that it was of a relatively low level, because viewed as a burglary with intent to steal, it was not ambitious as the retrieval of items which were formally in the possession of your brother was the object. And from this criminal enterprise, other than protecting your brother, you stood to gain nothing.

37In all the circumstances, it was submitted that despite a number of aggravating features of this offending – that you entered the building in the small hours of the morning whilst the residents slept and were then awoken by torchlight by the two of you – all relevant sentencing considerations could nevertheless be met by the imposition of a community corrections order, with conditions.

38As to this, counsel for the Director also submitted that such a disposition was in all the circumstances within range, so I ordered a report as to your suitability to undergo such an order.  The assessment report has been received, dated 14 April 2022 – Exhibit 8.  The author of it found you to be unsuitable because of past breaches, but nevertheless stated that if I was minded yet to impose such an order, recommended conditions of community work, treatment, testing, and rehabilitation for drug abuse and supervision.

39After receipt of the report, submissions of both parties remained substantially the same. 

40Mr Abdou, I state to you that I have taken into account all the matters raised in mitigation on your behalf in the course of the plea, and all other facts and relevant sentencing principles in arriving at the sentence that I am about to impose. 

41On Charge 1 and Charge 2, you are convicted and sentenced to a community corrections order for a period of 18 months.

42The corrections order will have on it conditions that you perform 50 hours of community work over that period of 18 months, and undergo treatment, rehabilitation and supervision. 

43Mr Abdou, you have been convicted and sentenced to a community corrections order for a period of 18 months and I am obliged to explain the order so that you understand what it means and what may happen if you breach the order in any way.

44You must not commit another offence for which you could be imprisoned during the time the order is in force.  You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. 

45You must report to and receive visits from the Secretary or his delegate.  You must report to the Community Corrections Centre which is the Broadmeadows Community Correctional Services Centre at 25-27 Dimboola Road, Broadmeadows within two clear working days after today.

46You must let a Corrections officer know within two clear working days of you changing your address or your job.  You must not leave Victoria without first getting permission to do so from the Secretary or his delegate.  You must obey all lawful instructions from and directions of the Secretary or his delegate, that is, a Corrections officer.

47Those are the mandatory conditions, and they apply to all Corrections orders.  In addition to the mandatory terms, you must perform 50 hours of unpaid community work over a period of 18 months, as directed by the regional manager.  I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

48If you fail to comply with this order, the Secretary may give you a direction to perform additional hours of unpaid community work in accordance with s 83AU of the Sentencing Act1991.  You must be under the supervision of a Community Corrections officer for a period of 18 months, and you must undergo assessment and treatment that includes testing for drug abuse or dependency as directed by the regional manager.

49I can only impose such an order if you agree with these terms.  If you contravene or breach this order by committing further offences, you can be charged and sentenced to a term of imprisonment for the breach.  You can also be resentenced for the offences that are before me. In other words, I would
resentence you on the charges that are before me today, and you could in that circumstance be sentenced to a term of imprisonment.

50I have to advise you, that if you fail to comply with any directions of the Secretary to the Department of Justice, that is, a Community Corrections officer as part of this order, you can also be fined.

51Mr Smurthwaite, would you accompany my associate to the Dock and get him to sign that.  Make sure the interpreter explains it to him.

52MR SMURTHWAITE:  Yes, Your Honour.

53HIS HONOUR:  Or that he understands it.  Any other matters?

54MR O'TOOLE:  Your Honour just needs to indicate a s 6AAA statement.

55HIS HONOUR:  I state that had you been found guilty of these offences after a trial, I would have sentenced you to a term of imprisonment of 18 months with a non-parole period of 9 months.

56MR O'TOOLE:  As Your Honour pleases.

57MR SMURTHWAITE:  As Your Honour pleases.

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