DPP v Al Janabe
[2019] VCC 1313
•16 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-02388
CR-19-00375
CR-18-02387
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FERES AL JANABE SHADI FARAH |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April & 23 May 2019 | |
DATE OF SENTENCE: | 16 August 2019 | |
CASE MAY BE CITED AS: | DPP v Al Janabe & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1313 | |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Trafficking in a drug of dependence – Large commercial quantity – methylamphetamine – Conspiracy to commit a common law assault – Standard sentencing provisions |
| Legislation Cited: | Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Criminal Procedure Act 2009; Control of Weapons Act 1990; Bail Act 1977; Sentencing Act 1991 |
| Cases Cited: | The Queen v Brown [2018] VSC 742; Muldrock v The Queen [2011] 244 CLR 120; R vPidoto and O’Dea [2006] VSCA 185; Bugmy [2013] 249 CLR 571; DPP v Quah [2019] VCC 1158 |
| Sentence: | Al Janabe: Convicted and sentenced to a total effective sentence of 11 years and 10 months imprisonment with a minimum term to be served before being eligible for parole of eight years imprisonment Farah: Convicted and sentenced to nine months imprisonment and a community correction order for a period of three years. |
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Saunders (Plea) Mr M. Cookson (Sentence) | Office of Public Prosecutions |
For Accused Al Janabe | Mr J. Kantor (Plea) Ms Z. Garde-Wilson | Garde-Wilson Lawyers |
| For Accused Farah | Mr D.A. Dann QC | Theo Magazis & Associates |
HIS HONOUR:
1 In this matter the two indictments before the Court were heard together. Mr Saunders originally appeared for the Director then Mr Singh on the plea and Mr Cookson today. For Mr Al Janabe Mr Kantor appeared and Ms Garde‑Wilson today and for Mr Farah, Mr Dann of Her Majesty's counsel appeared and still appears.
2 I intend to deal firstly with indictment J11918865, the most serious matter concerning Mr Al Janabe.
3 Mr Al Janabe was born in April 1976. He is aged 43, and was 42 at the time of this offending. He has been essentially unemployed although I note that there is also reference to him being a truck driver. He has pleaded guilty to an offence against s.71(1) of the Drugs, Poisons and Controlled Substances Act 1981 which is a charge of traffic in a large commercial quantity of a drug of dependence, in this case methylamphetamine.
4 The seriousness of this charge is demonstrated by the fact that the maximum penalty prescribed by Parliament of this State is one of life imprisonment and 5,000 penalty units. I make the point that that is the highest penalty available in our criminal system in this State. It is indicative of the seriousness of the crime by which Mr Al Janabe appears before this Court.
5 The standard sentence, as introduced in the year of his offending, on 1 February 2018, set by Parliament is 16 years. The standard non parole period also set for such an offence is 9.6 years. Again an indication of the seriousness of which Parliament views this offence.
6 As to the operation of standard sentencing provisions I accept and adopt the analysis of same as provided by Champion J in The Queen v Brown [2018] VSCA 742, in [94] to [100] and [110] to [111].
7 Adopting such, I note as to [64] and the references therein to the explanatory memorandum, paragraphs 6 and 7 of that document, that, of course, the challenge to a Court is to ensure that one is not, as a Judge, overborn by such legislative interference with the sentencing process and that one, as a Judge, ensures, in carrying out one's duty, that such standard sentence is not used as a starting point for a sentence, and that the Court is not led incorrectly into a two stage process of sentencing, as referred to by the High Court in Muldrock [2011] 244 CLR 120, [28]. I also note the comments in Brown as to the objective factors to be considered, as detailed in [94] to [100] when considering the nature of your offending, Mr Al Janabe.
8 The arraignment in both indictments was taken on 11 April 2014 and the plea as to Mr Al Janabe was made on 23 May when Mr Singh appeared for the Director. Exhibit C was the prosecution opening, which was accepted by Mr Kantor as the facts upon which I am to sentence his client.
9 Associated with the plea were six summary charges which I am asked to take into account under s.145 of the Criminal Procedure Act. Charge 4 was one count of possess a controlled weapon, an offence against the Weapons Act s.6(1) for which the penalty is either one year or 120 penalty units. Charge 5 was an offence of commit indictable offence while on bail, an offence against s.30B of the Bail Act for which the penalty is three months or 20 penalty units and there were then four charges under s.465AAA of the Crimes Act of fail to provide access to data. This occurred when a warrant was executed upon Mr Al Janabe's premises and he failed to provide access to data of various technical instruments that he had in his home. The maximum penalty prescribed for that offence is one of two years.
10 The actual conduct involved in the major offence, that is the trafficking, is set out in the prosecution opening, in particular from [9] to [39]. The trafficking firstly concerns trafficking between Victoria and Western Australia. It is detailed as being carried out in the period from 1 March 2018 to 23 July 2018, although clearly at or around the time that a fellow conspirator was arrested in Perth on 1 March 2018 must have been the major part of the operation.
11 Mr Al Janabe's role was that he was involved in the preparation, packaging and recruitment of people involved in this crime. The large commercial quantity was an amount of 9 kilograms. If one takes the mixed quantity that is a figure of 12 times the threshold for this offence, which is 750 grams. If one takes the pure figure then it is 6.93 kilograms of pure methylamphetamine, which is almost 13 times the threshold, which is 500 grams.
12 A second aspect of the trafficking, and certainly a much lesser aspect, was him being involved during this period in trafficking of street quantities to friends, although some of the amounts, as put by the prosecutor, were higher than simply pure street quantities. Anyway they demonstrate amounts of respectively, eight ounces, two ounces and ten ounces. It was put that at least two of those were higher than street level.
13 Upon the execution of the warrant various trafficking accoutrements were found at the premises and seized. The prosecution relied upon the evidence of Mr Al Janabe's prints on the drug packaging, the connection with a heat sealer at Mr Al Janabe's premises, the bags at the premises and also phone analysis and surveillance.
14 As to the nature of the offending Mr Saunders in his standard sentencing submissions, dated 10 April 2019, submitted at [20] that this was a serious offence. His submission was based on the fact of being nine times the threshold, and as I have corrected, such maths were incorrect.
15 Mr Saunders pointed out that Mr Al Janabe's role was, not only was he personally involved in recruiting a very willing Mr Fabris, but he clearly was involved in the packaging, sealing and the transportation. He tried to cover his role by using various aliases and encrypted messages in regard to his phone and clearly the intercepts prove that he did same for financial reward.
16 It was submitted, and I accept, that he was clearly part of a large scale commercial marketing operation of very dangerous drugs to this community, which cause not only physical and mental damage but much collateral damage.
17 It was submitted by Mr Saunders that it was a serious example of this crime, which I accept.
18 It was also, although this is not a matter that comes into the standard sentencing factors, but it was to be noted, committed while he was on bail.
19 At plea Mr Singh, who then appeared, submitted that given all the factors such should be seen as a midrange crime, especially when we are dealing with a quantity based sentencing scheme as referred to by the Court of Appeal in Pidoto [2006] VSCA 185. In particular where you have a scheme where the degree of seriousness is defined by weight as referenced in that case, and of course here we are dealing with a case where we are at the top scale of offending.
20 In response Mr Kantor accepted that it was a large volume, but submitted that the Court should take into account that we are dealing with a one occasion offence. On reflection that really means nothing. I suppose it is equivalent to saying to the Court, well he has only committed murder once. It really is almost an irrelevant submission. I make the analogy with murder because the penalty imposed here is equivalent to murder in this State.
21 His role clearly was not at the top. However, I reject totally the submission that he should be seen as a drug mule. His role was a very important. As I said, he was recruiting, packaging and arranging for transporting. He was, as the transcripts of his telephone conversations indicate, involved intimately. The transcripts that I have, do not necessarily relate to this dealing. They clearly indicate other dealing, and I disregard that for the purpose of this sentence. However, the transcripts do indicate that this is a man, unlike the submission from Mr Kantor, who is not naïve.
22 Clearly he was in this for financial reward. I am not quite sure to what degree. In the earlier surveillance material in February, he is discussing a figure of between “10,000” and “15,000” which a Malaysian contact has suggested to one of his conspirators. He clearly says that is not sufficient and the materials indicate that when that figure of 10,000 is maintained, he decides not to be part of any further dealings. Clearly he did ultimately become involved in this crime. For what price I am not sure, but clearly the motive was for reward.
23 Having considered all of the above I accept the proposition put that this should be seen as a midrange offence from an objective point of view.
24 As to sentencing, Mr Singh submitted that specific deterrence was particularly important. He pointed to the prior offences and the fact that Mr Al Janabe had been given a number of opportunities. Clearly, as Mr Singh accepted, he does not have substantial priors.
25 However, since that time I have had the benefit of being able to see the precise circumstances that related to a subsequent conviction, remarkably such offending took place prior to the two offences of which I am sentencing Mr Al Janabe. That is the offending that became a subsequent offence, and is therefore not a prior, in fact, was committed prior to his involvement in both of these indictments.
26 The criminal activity of which he was involved, and was subsequently sentenced on 3 October 2018, is very concerning and demonstrates a person, in my view, closely associated with the drug trafficking milieu, if there is such a thing. However, as I say, those are only matters that confirm my already expressed opinion that we are not dealing with any naïve drug mule. I stress such are not prior offences, but of course can be taken into account by the Court when considering the range of sentencing.
27 The Crown accepted by way of submission from Mr Singh that due to the assistance offered to the prosecution by Mr Al Janabe in particular involving a shooting which he witnessed in April 2017 and a further assault upon him subsequently to that matter in May 2017, that such should be taken into account in his favour and an appropriate discount provided. That statement was tendered as Exhibit AJ3 and this morning in Court Mr Al Janabe has given a formal undertaking to give evidence in the Supreme Court in that shooting matter which, as I understand it, is, in fact, an attempted murder prosecution. He has been taken through his obligations by his counsel and is well aware that if he does not fulfil that undertaking he can be brought back to a court, when this sentence may be reviewed. I also accept that in regard to that assistance, as indicated by Mr Singh, such assistance is classified as significant.
28 I have read his statement, Exhibit AJ3, as to the shooting which I have referred to which took place in April 2017 and the assault upon him in May 2017. I note that he gave evidence in the trial in the Supreme Court in April of this year and that he is to give evidence, subsequent to this hearing, at the adjourned hearing in the Supreme Court.
29 I do indeed, intend to give him an appropriate discount for the facilitation of justice which that represents, and the difficulties in gaol that he will suffer and has suffered by offering such assistance and the future burden upon him of such in serving a sentence.
30 I should note that when he was dealt with in the Magistrates' Court for those offences committed in November 2017 he got a remarkable result, no doubt as a result of good advocacy, but to get a sentence of 41 days for those serious offences certainly bewilders me. However, I am not here to review sentences.
31 In Mr Kantor's plea he tendered a written submission dated 22 May 2019 which became Exhibit AJ1. He referred to Mr Al Janabe's personal circumstances and his background and that was, in fact, precisely recorded in the sentence prescribed upon Mr Al Janabe that I have earlier referred to, by Judge Barnett.
32 In that case was tendered a psychological report of Mr Ives dated 23 November 2006. It noted that Mr Al Janabe was of below average intelligence, suffered from issues of limited English and a limited education. That he was born in Iraq, that he left in 1988 to avoid serving by way of military service in that country and that he finally arrived illegally in Australia in 1998 as a refugee. He was subsequently given refugee status and became an Australian citizen in 2001.
33 Reference was made to the terrible disruption caused to Iraq by the invasion of United States forces in 2003, and I accept that insofar as Mr Al Janabe's parents and his family, they did suffer extreme social disruption. However, at the time, of course, Mr Al Janabe was in Australia.
34 The first offence he committed, as is indicated in his priors, in Australia was within a year of him arriving and it was a serious offence of assault. However, it was alleged, according to Mr Kantor, to have something to do with cultural issues, that may have something to do with why he got, albeit a nine months' period of imprisonment, a fully suspended sentence.
35 In Australia he has been limited by the fact that he does not have good English, nor a good education. However, when reading Exhibit AJ2, the report of Dr Natalie Krapivensky dated 20 May 2019, in particular on p.3, one notes that he is apparently quite content with his life, with the pension and government housing supplied. No doubt in addition is the extra income that he is able to obtain by his various nefarious activities.
36 Mr Kantor relied on principles set out by the High Court in Bugmy [2013] 249 CLR 571, 598. I am not sure in regard to Mr Al Janabe whether those principles are applicable. Clearly I understand the terrible situation in Iraq and the impact on his family. Such impact on him is questionable, however, I do accept that he has had limited English and limited education. Why his English has been allowed to remain in that state, there is no explanation offered and as I say, he seems to date to have been content not to work. At least not work legally. I think he may have been very busy in other fields.
37 In the reports that I have referred to, from the psychiatrist, Exhibit AJ2, she notes there is no psychological deficit, he has no psychological condition, nor does he receive any treatment. She notes what she calls some 'social depravation' brought about by the fact that he does not work and that he has limited English.
38 In 2016 he separated from his wife over arguments as to how their two daughters were to be educated. These were apparently cultural issues. It is suggested that since that time he had been afflicted by drugs. I note that an intervention order was granted against him. I have referred to his criminal activities since that time, and the fact that clearly he was doing such for money.
39 It was put that he has a limited criminal background. At the time I was not aware of the offences of 18 November 2017. I would say he has a limited criminal background, but a limited serious criminal background. The subsequent convictions that he has had, while not prior offences, are very concerning. It shows a lifestyle that is totally consistent with the crime for which I am sentencing him today, and it is to be pointed out that that activity which took place on 18 November 2017, took place prior to either of the criminal matters of which he faces today.
40 It is somewhat remarkable to me that when a person is apprehended for such serious crimes and placed on bail, that he blithely goes ahead and commits a further more serious offence. Clearly he was very closely aligned to the commercial drugs scene.
41 I accept that by his plea of guilty he is entitled to the benefit of remorse evidenced by that plea. He is also entitled to discount for the utilitarian benefits and assistance to justice such effects.
42 As I have said, clearly custody for him will be burdensome, although the fact is his family had broken up beforehand and he is forbidden from seeing them still, as I understand it, as a result of the intervention order.
43 The fact that he has not been partaking, as demonstrated by the screens, AJ4, in drugs while in gaol does not really have much impact on this sentence given that he is not charged for anything that relates to his partaking of drugs.
44 Since this plea the first sentence under the Standard Sentencing Scheme for this offence has been passed, upon which I invited submissions. It was a matter of Quah, a sentence in this Court, [2019] VCC 1158. The amount involved was four times the large commercial quantity, as against this case which, as I have said, is somewhere between 12 and 13, depending on purity. In that case the Judge also found the offending to be midrange. In that case the accused squandered a very, very good upbringing, which is quite different to this matter, with good education and was a person who had and was subject to a very long drug habit. The sentence imposed, for this charge, was 15 years gaol.
45 Would you stand please, Mr Al Janabe.
46 It is going to be difficult for you because I am sorry, I have got to keep you here while I deal with Mr Farah, and then I have got to finally combine both sentences. So I apologise for that.
47 But in regard to this charge and this indictment, taking into account all of the matters that I have referred to, in particular the assistance discount that you get, I sentence you to 10 years gaol.
48 Also Mr Al Janabe for the summary offences, the possession of the controlled weapon, I sentence you to a period of six months. For committing an offence on bail, I sentence you to a period of imprisonment of one month. On the four fail to access data charges, on each charge I sentence you to a period of imprisonment of one year.
49 Insofar as the base sentence of ten years is concerned I accumulate two months of each of the sentences in Charges 6 to 9, and two months of the sentence in regard to the controlled weapon charge making a total of 10 months, therefore making a total effective sentence for you in this indictment of 10 years and 10 months. I will come to your non parole period in due course.
50 For the purpose of this indictment I have signed a s.464ZF forensic order. I have signed the disposal order. As to the provisions of s.6AAA of the Sentencing Act, it is very difficult to comply with the requirements of Parliament when you have got such a multifaceted sentence. However, doing as best I can, had you not pleaded guilty the sentence I would have given you is a period of 13 years, that is for this offence.
51 MR COOKSON: Sorry Your Honour, one matter. Section 5(2AB) of the Sentencing Act, regarding when Your Honour imposes a less severe sentence than Your Honour otherwise would have owing to an undertaken given to assist. Your Honour ought to announce that Your Honour is doing so without necessarily stating what the sentence would otherwise have been.
52 HIS HONOUR: I think I have already done that, have I not?
53 MR COOKSON: I believe reference to the section is usually - - -
54 HIS HONOUR: I think I have said it on a number of occasions. I did not refer to the section but it is quite clear. Mr Al Janabe, had he not assisted the furtherance of justice, would have been getting a more considerable sentence than I have just given him.
55 MR COOKSON: If Your Honour pleases.
56 HIS HONOUR: You can take a seat now, Mr Al Janabe, just for the moment. I then come to indictment No.C1811971. On 11 April 2019 both prisoners pleaded guilty to a charge of conspiracy to commit a common law assault. Mr Farah, who is the accused in that matter with Mr Al Janabe, was born on 2 December 1992. He was 35 at the time of the offending and is now 26. The penalty prescribed for that crime under s.321 of the Crimes Act is five years imprisonment.
57 Exhibit A was the amended prosecution opening dated 8 April 2019. Both counsel accepted that the facts therein are the facts upon which I am to sentence both of you.
58 This crime, I understand, was detected inadvertently owing to Mr Al Janabe's phone being surveilled due to his suspected drug activities.
59 Mr Farah was 35 at the time. He was the proprietor of a fruit shop in Toorak Road, as I understand it, trading as The Fruitful Shop. He was in conflict with a fellow shop proprietor, Nadar Kajojo. The period of offending was from 30 April 2018 through to 23 July 2018. As I have already remarked in regard to Mr Al Janabe, a period of which he was on bail.
60 Mr Singh in the plea described this offending as persistent and especially so as there was attempted police intervention to warn them off. Mr Farah recruited Mr Al Janabe to effect an assault upon his fellow shopkeeper. How, why and what their connection was I am uncertain, however, what was discussed between them was some form of assault, detention or kidnapping. They were both arrested on 27 July of that year which averted their plans.
61 The offending is detailed in the prosecution summary from [12] to [74]. To say the least it was persistent. It beggars belief in some regards. One wonders at some stage whether Mr Al Janabe is really taking Mr Farah for a ride, but one can only rely on the discussion between them.
62 But allegedly Mr Al Janabe, having been recruited by Mr Farah, hired or got associates to try and arrange a situation where the other shopkeeper, Mr Kajojo, would be attacked in some way.
63 During this period, as I said, the police, in fact, spoke to an associate and that was on 8 May 2018. Mr AL Janabe, in fact, told Mr Farah about the police intervention. However, despite that by 16 May the plot was on again, when the deposit was in fact paid for this job in the sum – have I got this right, Mr Prosecutor, was it $10,000?
64 MR COOKSON: I'll confirm that, Your Honour.
65 HIS HONOUR: I think it was, was it not? Yes. Was paid by Mr Farah to Mr Al Janabe. The scheme then persisted through until, as I said, they were arrested. As I said, whether Mr Al Janabe ever intended to carry out his side of the bargain, whether in fact he did, what he said to Mr Farah, I do not know. However, by the plea, and acceptance of your counsel of the facts, such is before the Court as fact.
66 However, assessing the intercepted calls the intent is clear. In the conversation of 3 June 2018, [53] of the material given to me, the scope of the endeavour is clear. That is they discussed the fact that the fellow shopkeeper, as a result of what Mr Al Janabe's going to do to him on behalf of Mr Farah, will not be able to hold scissors in his hands anymore. The importance of that, of course, is to understand that the proposed victim’s occupation, was a barber, hence clearly a serious assault was planned.
67 As I have said, Mr Singh stressed the issues of persistence, the preparation involved by, in particular, Mr Farah but also, as indicated by the phone calls, of Mr Al Janabe. The payment of the deposit and the acceptance of same by Mr Al Janabe. The active organisation by Mr Farah. The persistence, according to Mr Al Janabe's phone calls, as to what they did, the surveillance, his finding friends to assist him, going to the proposed victim's shop and to where he lived. All of these circumstances are involved in this persistent criminality.
68 Those matters were further put this morning by Mr Cookson and as I say, those matters had been put by Mr Singh.
69 Exhibit B was a victim impact statement dated 22 May 2019. The circumstances set out seem to me to be not exaggerated. The shock on being advised of this plan seems to me to be understandable. His anxiousness since, even with an intervention order, is also understandable. The psychological assistance and as I understand, his comments as to the financial loss caused by this crime is now accepted.
70 Mr Farah has no relevant priors. He did spend 71 days in pre-sentence detention until he was bailed and has had restrictive bail. I do intend to put a forensic sample order upon him and I have signed that.
71 Mr Dann, on his behalf, tendered written submissions dated 23 May 2019, Exhibit F1. Mr Farah's been in Australia since he was 21. That is about 15 years. He is a successful and hardworking person who has provided for his family. He has had various rental outlets. He started in fruit shops, and also has opened cafés. He is currently a proprietor of a café in Keilor East which is conducted by his wife and himself. He still has the café business in the Toorak Village, however, he lost the lease in regard to the fruit shop when he was in gaol. He is hardworking, as with many persons of his background who come to Australia, has made a substantial contribution. He has three young children.
72 Mr Dann, in submission, accepted that the offending was serious, that the behaviour was concerning, that persons are not entitled in this community to take the law in their own hands and to act as vigilantes. Albeit, as he submitted, it was persistent, it seemed, to say the least, to be apparently fairly bumbling. He referred to his client as never having offended before or since. As to what the issues of concern between his client and proposed victim, I do not know whether anyone is quite sure, but I am certainly not.
73 The 71 days by way of pre-sentence detention were hard for Mr Farah having never been in gaol before. He has agreed to an intervention order. Mr Farah accepts the effects of his criminality upon the victim, and it was accepted by Mr Dann that there was nothing exaggerated about that victim's statement.
74 As Mr Dann said, the matter was resolved at the earliest of times. He relied upon his client pleading guilty for its utilitarian benefit as an indication of remorse. Mr Farah has accepted his responsibilities and as he said, consented to the intervention order. He has a previous good character and is a hardworking member of the community with no priors.
75 Tendered as Exhibit F2 were medical reports in regard to his wife. I will not identify the three of them, but they indicate that she was in considerable difficulty while Mr Farah was in gaol, brought about, no doubt, by the difficulties of running the business, looking after the children and having her husband in gaol. I take those matters into account.
76 Mr Dann referred to the relatively low maximum in this matter, to his client's lack of priors, to his good character and asked for this Court to give Mr Farah an opportunity, given that it is the first offence by a person now aged 36. While accepting that the seriousness of such crime indicated the need for gaol, Mr Dann submitted that the Court should find the 71 days served to date sufficient, and that the relevant sentencing purposes would be effected by passing a combined period of imprisonment and a CCO, the period of imprisonment being limited to 71 days. In pursuance of that submission I ordered a Community Correction report which has been tendered today, and was positive.
77 In submission from Mr Cookson today, insofar as that submission was concerned, as to Mr Farah there was no objection to the proposal that a combination sentence by way of imprisonment and a CCO be imposed. However, it was submitted by Mr Cookson that a period of 71 days, given the seriousness of this criminality, was not appropriate. I accept that proposition.
78 I do accept Mr Dann's proposition as to the applicability of a s.41 order, however, I do not consider the period of gaol served of 71 days to be sufficient in the circumstances.
79 If you could stand up, Mr Farah, please.
80 You will be sentenced to a period of nine months gaol and upon release you will be placed on a three year community correction order. I order that the conditions be that you be subject to supervision, and be subject to counselling as to offending behaviour and anger management.
81 Pursuant to s.18 I declare that the 71 days that you have served be deemed as pre-sentence detention. I make it clear, because of the provisions of s.41, you have already served 71 days of this nine month sentence.
82 As to how to conform with the requirements of Parliament as to s.6AAA in this matter, given the multiplicity of factors, all I can say is that had you not pleaded guilty, I can tell you, you certainly would not have got a combined sentence.
83 Mr Dann, first thing is, you had better ask your client is he is accepting of that. I cannot grant a CCO unless he accepts it.
84 MR DANN: Yes, Your Honour. Yes, he consents to that, Your Honour.
85 HIS HONOUR: Yes. Mr Dann, we will need him to sign that document. Mr Prosecutor, do you confirm that $10,000 deposit?
86 MR COOKSON: We're looking into it - - -
87 MR DANN: I don't believe there was any – it didn't descend into that level of detail, I think.
88 HIS HONOUR: Did it not? I thought we had a – all right. I apologise. I thought I had - - -
89 MR COOKSON: I've got it as contained in item 64 of Exhibit 5 and CSNs 8760, 8759 and 8756 and we're trying to drill down to see if there's - - -
90 HIS HONOUR: Well there was a deposit paid. I thought the figure put was 10 but I might be wrong.
91 MR COOKSON: The summary alleges discussions on 11 and 12 May and footnotes go into where they are. So we're looking at the direct references at the moment.
92 HIS HONOUR: All right.
93 MR COOKSON: No answer as yet. In terms of PSD 348 days is agreed regarding our other matter if that's of assistance.
94 HIS HONOUR: Three forty eight?
95 MR COOKSON: Three four eight.
96 HIS HONOUR: All right. Well while we just check that matter then are you going to check that now?
97 MR COOKSON: Yes, Your Honour.
98 HIS HONOUR: Mr Farah, you can sit down and I will finally explain to you, in due course, once I have checked this figure. Actually it is important insofar as understanding Mr Al Janabe's. Wait until I just check my own notes. Mr Dann, you did not think there was a figure?
99 MR DANN: No.
100 HIS HONOUR: Mr Dann, did you say that you did not think there was a figure put?
101 MR DANN: That's right.
102 HIS HONOUR: All right. Well I will accept that for the moment.
103 MR DANN: Well it's not in the openings.
104 HIS HONOUR: No. Right.
105 MR DANN: I don't believe.
106 HIS HONOUR: I think I just said the deposit was paid and accepted. I was going to put in Mr Al Janabe's remarks in regard to this matter the figure of $10,000. I will simply say that it was paid.
107 MR DANN: Well I don't believe the opening refers to a figure.
108 HIS HONOUR: No, no, that is what I am saying. I am not going to put a figure.
109 MR DANN: Yes.
110 MR COOKSON: It's probably safest in the circumstances, Your Honour, not to put a figure. I'm seeing some comments one way or the other but if we can't be certain, we can't be certain.
111 HIS HONOUR: Right, thank you. So that community correction order has been signed?
112 MR COOKSON: Yes, Your Honour.
113 HIS HONOUR: I am sorry, Mr Farah. It is very important for you when you do get out to make sure you comply with those conditions. I know the Community Correction order is for a relatively lengthy period, but clearly before this aberration in your life you have never had any problems, so I am sure that you will go back to a blame free life, all right? The other matter is because of the seriousness of your crime I signed a forensic order, in the sense of having to provide a sample of your DNA. It is necessary for to provide that when you are in prison because otherwise people can come back here and get an order, all right? If you just take a seat for the moment. Well there is probably no reason – any reason why I should keep Mr Farah?
114 MR DANN: No, Your Honour.
115 HIS HONOUR: No. Mr Farah can – so Mr Farah, just so that you understand. The period that I have given you is nine months, less the 71 days that you have served and then a three year community correction order with conditions. All right.
116 OFFENDER: Yes.
117 HIS HONOUR: Yes, Mr Farah can go down.
118 MR DANN: May I be excused at this point, Your Honour?
119 HIS HONOUR: Yes certainly, Mr Dann. Coming then back to Mr Al Janabe. There are, of course, Mr Al Janabe, substantial differences between you and Mr Farah. As to the conspiracy Mr Farah was the organiser, you were to carry out the assault and according to your own words tried on numerous occasions to put yourself in a position to do so but apparently were not successful. You also hired accomplices.
120 As I have already remarked in Mr Farah's sentence, it was the intent of both of you, to injure the proposed victim. You proposed to do this and were paid money to do so. Again as I remarked, you did this while on bail, and you did this in circumstances where you had previously been sentenced and given opportunities. Again, such is remarkable to me.
121 You have relevant priors going back to 1999, where you have priors for assault with a weapon and recklessly cause injury. In addition to that, you have the subsequent matters where you are found with a loaded pistol.
122 Unfortunately in the sentencing remarks of Judge Barnett his hopes for you as to rehabilitation have not proved successful. I do not hold great hopes for your rehabilitation unfortunately.
123 However, again in this case because of your undertaking made today you are entitled to an appropriate discount because of such undertaking and your cooperation and the difficulties that that cooperation presents to you when serving your sentence.
124 In the circumstances, doing as best I can to balance the differences between both of you in regard to your criminal history, if you could stand please, for this offence I sentence you to a period of imprisonment of 12 months.
125 I declare that had you not pleaded guilty in this matter the period, as best as I can say, under s.6AAA that I would have sentenced you to is a period of 16 months, although as I say, complying with that requirement of Parliament in the totality of the circumstances that relate to you is very difficult.
126 The provisions therefore of s.16(3C) of the Sentencing Act are relevant. That is the intent of Parliament that if you are convicted of another offence committed while on bail then that sentence should be served cumulatively upon any other sentence imposed on you. I see no reason why that should not operate in this case.
127 In regard to your total effective sentence imposed in indictment No.J11918865 of ten years and ten months, I order that the sentence that I have just imposed on you of 12 months be served cumulatively, that is the sentence imposed in indictment No.C1811971. Therefore the combined aggregate sentence for both your indictments imposed on you this day is a period of 11 years and 10 months.
128 I then come to the question of the minimum period that you must serve before you can be eligible for parole. The provisions of s.5B(4)(b) now apply, as you now are subject to the standard sentencing provisions. However, clearly because of the discount that you have been provided in both indictments, because of your undertaking and assistance to justice, such mandated period by way of non-parole period is not appropriate, nor would it be just in my view.
129 The period I therefore impose that you must serve before being eligible for parole in regard to the totality of the sentences imposed on you, being 11 years and 10 months, is eight years.
130 I declare that the 348 days that you have served to date be deemed as service of that sentence and a record of such declaration be entered into the Court record. I have signed the disposal order in regard to the phones in this matter.
HIS HONOUR: Mr Prosecutor, is there anything that I've missed?
MR COOKSON: Not by my reading, Your Honour.
HIS HONOUR: All right. Ms Garde-Wilson?
MS GARDE-WILSON: No, Your Honour.
HIS HONOUR: Yes, Mr Al Janabe. I hope my prognostications in regard to you are wrong, but at any rate time will tell. Thank you. Mr Al Janabe can be taken down. Yes, I thank counsel for their assistance. I'll get off the Bench.
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