R v Ahmad Kai Aboucham

[2008] NSWDC 385

CITATION:	R v Ahmad Kai ABOUCHAM [2008] NSWDC 385
JUDGMENT DATE:	29 July 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Non parole period of 3 years. Balance of the term 1 year. Referred to the Drug Court
CATCHWORDS:	CRIMINAL LAW - sentence - break and enter and commit serious indictable offence - plea of guilty - offence committed whilst on parole and on bail for other offences - extensive criminal record - persistant offender in this kind of crime - particular need for personal deterrence - extensive and problematic illicit drug use until recently - significant life management skills deficits - custodial sentence inevitable
LEGISLATION CITED:	Crimes Act 1900 s 112(1) Crimes (Sentencing Procedure) Act 1999 s 21A(2)(d) Drug Court Act 1998 s 6(2), s 18(b)
PARTIES:	Regina Ahmad Kai Aboucham
FILE NUMBER(S):	08/5685
SOLICITORS:	Ms Fitzpatrick for Director of Public Prosecutions Ms Cotton for Mr Aboucham

JUDGMENT

1. I am sentencing Ahmad Aboucham. Mr Aboucham has pleaded guilty to the crime of break and enter and commit serious indictable offence. That is an offence against s 112(1) of the Crimes Act 1900. It carries a maximum of fourteen years imprisonment.

2. The offence occurred on 26 October 2006 but Mr Aboucham was not arrested for the offence until 12 November 2007.

3. When he committed this offence, Mr Aboucham was on parole for another offence of breaking, entering and stealing. In addition, he was on bail for other offences that he had been charged with. Mr Aboucham has been refused bail since his arrest on 12 November 2007, although when he was arrested he was at that time serving a sentence for another offence which is due to expire on 12 September 2008.

4. Briefly, this is what happened in this case. I will just interrupt my remarks, there is no Form 1 here, is there?

COTTON: No, your Honour.

HIS HONOUR: No.

Between about 10 in the morning and 2 in the afternoon of 26 October 2006, Mr Aboucham decided to break into a house in Myall Street, Belmore. He broke into a side gate and broke a window at the back of the house. He injured himself in doing that. The house was unoccupied. From the house Mr Aboucham stole a number of items of property including a Sony play station and games calculator and radio, a mobile phone, a watch and coins as well as a key ring. When the owner of the house returned, he phoned the police. Because the offender had left some blood, that enabled police to perform a DNA test. A DNA test was undertaken in March 2007 which indicated that the blood matched that of Mr Aboucham.

5. Over six months later, police attended Mr Aboucham - who was then serving, as I said, a sentence for another offence - and charged him with this offence.

6. Mr Aboucham has a very bad criminal record for just this kind of offence. He was born on 29 December 1976 and he is now aged thirty-one. Since he turned eighteen in 1994, Mr Aboucham has committed a number of offences of breaking and entering and stealing for which he has received various kinds of sentences from a recognisance through a suspended sentence to gaol terms. Mr Aboucham is a persistent offender so far as this kind of crime is concerned. One of the most significant sentences was imposed by this court on 19 September 2003 when he was sentenced to four years imprisonment with a non-parole period of three years. That non-parole period concluded on 3 January 2006, hence it was only eight months or so later that he was committing this particular offence.

7. It goes without saying that such a criminal record does not assist Mr Aboucham. More significantly than that, it is one that I take into account under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999. The previous convictions are for similar crimes as those which I am sentencing him for and indicate a need for me to give particular emphasis to deterring Mr Aboucham from committing these kinds of offences again.

8. There was tendered by Ms Cotton, who appears for Mr Aboucham, a forensic psychologist’s report prepared by Alex Edgar. It is a recent report dated 7 June 2008. It notes that Mr Aboucham commenced using illegal drugs when he was fourteen years of age. He graduated to heroin, using it intravenously when he became eighteen. He made efforts at abstaining from heroin which were partly successful but ultimately unsuccessful. As Mr Edgar said, it would appear that his illicit drug use has remained extensive and problematic until recently. Past intervention has resulted in limited effect. Mr Edgar expressed the opinion that a more strict and monitored rehabilitation program was needed. He has been engaged on and off in the Methadone Program and has indeed, as indicated by his criminal record, had the benefit of experience in the New South Wales Drug Court.

9. Mr Aboucham lost his father when he, Mr Aboucham, was aged eight years old. Mr Edgar thought that his drug use had affected his mental health functioning with a possible drug related schizophrenia, with associated paranoia. Mr Edgar concluded that Mr Aboucham has an entrenched dependence and significant life management skills deficits. He needs primarily to engage in a rehabilitation program to assist with continued abstinence from drugs. Mr Edgar considered management within the community. He thought that if Mr Aboucham received a custodial sentence, consideration could be given to giving him access to rehabilitation programs. He thought that Compulsory Drug Treatment Correctional Centre at Parklea provided such an intervention.

10. I take Mr Aboucham’s drug addiction into account at this stage not to excuse the offending behaviour but as a factor which indicates a limited degree of planning and the fact that his offending behaviour was obviously driven by that addiction.

11. Ms Cotton realistically acknowledges that a custodial sentence is inevitable. I agree: with Mr Aboucham’s criminal record there is no other choice for me than to send him to gaol. However, Ms Cotton recommended consideration be given to Mr Aboucham’s eligibility for a Drug Court Program.

12. I propose to sentence Mr Aboucham to four years imprisonment with a non-parole period of three years. I am going to backdate that sentence to 12 November 2007 when he was arrested. I am conscious of the fact that that is exactly the same sentence as he received previously. Normally, one would expect the sentence to increase because of the significance of deterring him. However, I take into account the fact that there was a delay between the date of the offence and his arrest, more significantly the delay was between the date of the determination that he was the culprit which occurred in March 2007 and his arrest in November 2007. I take into account that the items stolen were not of very significant value, however aggravating his offending behaviour is the fact that he was on conditional liberty; a court had given him permission to be at large, in fact more than one court.

HIS HONOUR: Now having indicated that, I will just ask you Ms Cotton and Ms Fitzpatrick, do I make findings or recommendations under the Drug Court Act or not? Or is it just something which follows?

COTTON: Your Honour, can make a referral.

HIS HONOUR: Under section--

COTTON: Five.

FITZPATRICK: I’m not sure what the section the referral is under but--

HIS HONOUR: Section 6 is it?

FITZPATRICK: No, I don't think section 6, your Honour.

HIS HONOUR: No, no.

FITZPATRICK: We were looking at section 5A before.

HIS HONOUR: Yes, that’s eligibility. So you’re asking me to, Ms Cotton, in some way connecting with the Drug Court Program but I need to be told how I go about doing that. Is it section 6(2).

COTTON: 18(b) I think your Honour.

HIS HONOUR: Say that again?

COTTON: 18(b), courts to refer eligible convicted offenders to Drug Court.

HIS HONOUR: Yes?

COTTON: And subsection (2) duty of the court to which a section applies--

HIS HONOUR: Sorry, 18?

COTTON: 18(b).

HIS HONOUR: I’ll have a look at the section.

13. In my opinion there are grounds on which the Drug Court might find Mr Aboucham could be an eligible convicted offender. And I refer Mr Aboucham to the Drug Court to determine whether he should be subject of
a compulsory drug treatment order.

HIS HONOUR: Is that - or - any other orders? That’s right, yeah. Any other orders? Now four years, I do not make a parole order, so it is not three years. So I have sentenced him and I have made a referral. Any other things that I need to do? I need to specify the dates of the sentence. All right.

14. Mr Aboucham I am sentencing you to four years imprisonment, to date from 12 November 2007 and to expire on 11 November 2011. I specify a non-parole period of three years to commence on 12 November 2007 and to expire on 11 November 2010. The first date, earliest date, on which it appears to me on information available to me that you are eligible to be considered for release by the Parole Authority will be 11 November 2010.

15. Pursuant to section 18B(2) of the Drug Court Act 1998, I am of the opinion that there are grounds on which the Drug Court might find you to be an eligible convicted offender and I refer you to the Drug Court to determine whether you should be the subject of a compulsory drug treatment order. Any other formalities?

FITZPATRICK: I think that’s it your Honour. Your Honour has convicted the offender?

16. And I convict you of the offence of breaking and entering and committing a serious indictable offence contrary to s 112(1) of the Crimes Act 1900.

FITZPATRICK: It may be my oversight but your Honour took into to account his plea of guilty?

HIS HONOUR: I did, yes.

FITZPATRICK: Thank you, your Honour.

HIS HONOUR: Yes, I must say I did not record it.

17. I should record that I took into account the fact that Mr Aboucham has pleaded guilty to this offence in fixing the sentence that I did. It would have been higher still, had he not pleaded guilty. Mr Aboucham, the sentence that I had in mind, or as appropriate, is probably something like five or six years but because you pleaded guilty in good time and cooperated, I have reduced that to four years. Do you understand that? That is about twenty-five percent of because you have pleaded guilty. Anything else?

FITZPATRICK: No.

18. Mr Aboucham, I have got to explain this to you now. I have given you a four year gaol sentence. It starts when you were charged or arrested on 12 November 07, so your four years expires on 11 November 2011. Do you understand that? You’ve got three years minimum non-parole period. That started on 12 November 2007 and that finishes on 11 November 2010. So on 11 November 2010, you have become eligible to be considered for parole. I do not order your parole, the Parole Authority does that. They look at you and work out whether you are going to get parole or not. The earliest time that they can do that is in November 2010, on the 11th. Do you understand? It seems to me on Ms Cotton’s submissions that you might benefit from the Drug Court, Compulsory Drug Court [as said]. So I have made a referral to the Drug Court to see whether they might fit you in to their compulsory program where you go to Parklea and do good work there. I’ve been out to have a look at it. If you are eligible and if they do take you on, it might be a place which can help you, do you understand? There are other people who are affected by drugs there and they’re all doing their best to rehabilitate themselves. Do you understand? Okay. Is there anything else?

FITZPATRICK: No, your Honour.

HIS HONOUR: Mr Aboucham can be taken down.

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