R v Al Mofathel
[2018] ACTSC 65
•15 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Al Mofathel |
Citation: | [2018] ACTSC 65 |
Hearing Dates: | 27 July 2017, 12 October 2017, 15 February 2018 |
DecisionDate: | 15 February 2018 |
Before: | Murrell CJ |
Decision: | Sentenced to 16 months and 2 weeks’ imprisonment to be served by way of Intensive Correction Order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – going equipped with an offensive weapon – guilty plea – parity in sentencing – substance abuse – strong subjective factors – supportive family environment – no adult criminal history – rehabilitation dominant sentencing purpose – intensive correction order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 11, 77, 78 Criminal Code 2002 (ACT) s 316(1) |
Parties: | The Queen (Crown) Haidar Al Mofathel (Offender) |
Representation: | Counsel Mr M Fernandez (Crown) Mr P Edwards (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Offender) | |
File Numbers: | SCC 239 of 2016 |
MURRELL CJ:
On 13 June 2017, the offender entered a plea of guilty to the offence that on 25 July 2016 he went equipped with an offensive weapon with intent to use it for aggravated burglary contrary to s 316(1) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty is five years’ imprisonment and/or a fine.
The trial was scheduled to commence on 26 June 2017. The Crown case was strong in relation to the offences charged. As the victim was somewhat recalcitrant, the Crown may have had difficulty had it sought to prove more serious charges that may have been contemplated. Despite the strong Crown case, the offender should receive a sentence discount of 15 per cent, primarily because of the utilitarian value of the plea.
From 26 July 2016 to 4 August 2016 and from 8 to 16 August 2016, the offender spent 17 days in custody referrable to the offence.
Facts
The victim, Mr Twigg, was friends with the offender and the co-offender, Mr Ndlovu.
At 10.50 pm on 25 July 2016, the offender and co-offender went to the unit complex where the victim resided. They entered the complex through an unsecured door. They approached the victim’s unit and banged on the door. Mr Ndlovu was carrying a shopping bag containing a modified 12 gauge Boito shotgun.
Mr Ndlovu removed the firearm and brandished it, continuing to bang on the front door of the unit and yell out. The victim contacted the police.
At about 11:05 pm, police arrived. They encountered the offender and co-offender in the stairwell. The offender was wearing dark clothing and a dark coloured beanie. Mr Ndlovu was similarly attired. The police directed them to leave the premises. Mr Ndlovu attempted to abandon the shopping bag. Police looked inside the bag and saw the shotgun.
The police arrested the offender and co-offender. Later, two shotgun rounds were removed from the firearm.
Prior to Mr Ndlovu taking the shotgun from the bag outside the victim’s unit, Mr Al Mofathel did not know that it was in his possession.
10. When the offender was arrested, police located a folding knife about 8 cm in length in his satchel bag. It was because of the possession of the folding knife that the offender was charged with the offence to which he pleaded guilty.
Objective seriousness
11. The gravamen of an offence is that the offensive weapon is carried for the purpose of committing a particular crime or a particular type of crime. The offence is not concerned with the actual commission of (in this case) an aggravated burglary, or an attempt to commit an aggravated burglary, but the purpose for which the weapon is carried.
12. The proposed burglary was aggravated by the feature that the offender was in company with Mr Ndlovu. The purpose of the enterprise was to obtain drugs or money for drugs from the victim.
13. The offender said that he was under the influence of drugs at the time that the offence occurred. That is no excuse for the offence but it puts the offence into context.
14. The offensive weapon that was carried was a relatively small knife. The definition of offensive weapon in the Criminal Code covers a broad range of items, of which a small knife is far from the most serious. Further, the offenders were apprehended as they were leaving the premises, apparently having abandoned the idea of committing a burglary.
15. On the other hand, the offence occurred at night, in residential premises and in the company of a co-offender.
16. For these reasons, I consider that the offence is of moderate seriousness objective seriousness.
Subjective circumstances
17. At the time of the offence, the offender was 22 years old. He is now 24 years old.
18. The offender has had relevant prior dealings with the criminal justice system. However, for some years prior to the offence, he had no contact with the criminal justice system.
19. The offender is one of six children, two of whom are known to ACT Corrective Services. He lives with his father.
20. The offender’s family migrated to Australia from Saudi Arabia when the offender was an infant. He had a supportive and stable upbringing. During his school years, he was suspended on numerous occasions due to problematic behaviour. He left school after completing Year 10.
21. After leaving school, the offender commenced a cabinet making apprenticeship but did not complete it. He wishes to resume and complete the apprenticeship. He has undertaken labouring work and is currently employed in the hospital industry. He has debts of about $10,000.00.
22. The offender has demonstrated some remorse and insight into his offending behaviour. He has been assessed as a medium to low risk of general reoffending, primarily because of the social support that he receives from his family.
23. When this matter first came before the Court, the offender’s self-reported alcohol use was at a risky or hazardous level and required intervention. Of more significance was his abuse of illicit substances. He reported that, as at 27 July 2017, he used cannabis, methylamphetamines and non-prescription benzodiazepines on a daily basis. His substance abuse was substantial and required intervention.
24. In late June 2017, the offender approached Directions ACT and was assessed for admission to the Arcadia House Residential Rehabilitation Program. He was placed on the waiting list for the Program. Directions ACT stated that the offender may require medicated detoxification prior to entering the Arcadia House program.
25. Although the offender’s frequent use of illicit substances militates against a positive rehabilitation outcome, he has made some progress towards addressing the problem. If the offender can commit to intensive rehabilitation in relation to his substance abuse, the prospect of future criminality is low. He is a young man and it is important that he be given that opportunity. Of course, if he fails to make an appropriate commitment, the outcome will be unfortunate from his perspective.
Sentence
27 July 2017
26. Given the moderate objective seriousness of the offence and the offender’s history, the only appropriate sentence is one of imprisonment.
27. I consider that the starting point for the sentence should be 21 months’ imprisonment, from which I would deduct 15 per cent to arrive at a sentence of 18 months’ imprisonment.
28. Because of the offender’s youth and prospects for rehabilitation, I consider that rehabilitation is the dominant sentencing purpose. There are other important sentencing purposes; in particular, general and personal deterrence. However, as rehabilitation is the dominant purpose, consideration should be given to directing that the sentence be served by way of an intensive correction order (ICO).
29. Without necessarily committing to that course, I refer the offender for an ICO assessment.
12 October 2017
30. On 31 August 2017, the offender was admitted to the Arcadia House Transition Program, which is a 12-week program, the first eight weeks of which are residential. On 28 September 2017, the offender self-discharged from the program. The reason given by the offender for leaving the program was "family concerns”. The offender wished to reside with his partner, who is pregnant. Following his self-discharge, the offender continued to maintain in contact with the Arcadia House service.
31. The ICO report which I requested on 27 July 2017 assessed the offender as not suitable for an ICO for four reasons:
(a)unresolved accommodation;
(b)lack of family support;
(c)non-completion of a drug intervention; and
(d)demonstrated poor attitude.
32. In relation to the first two points, arrangements had been made for the offender to reside with his father following his self-discharge from Arcadia House. However, the offender's father withdrew his consent due to concerns about the offender's relationship with his partner and possible drug use, although there was no firm evidence of any such use.
33. More recently, the offender's father has indicated that he would be prepared to have the offender reside with him. I accept that this may be the case. However, it seems that the offender’s father is almost certainly reacting to a concern that his son otherwise faces imprisonment, rather than because he is satisfied that the offender could be appropriately supervised at his residence.
34. The offender has some commitment to rehabilitation, but not to the degree that I had hoped when I adjourned proceedings on 27 July 2017. His lack of firm commitment may be related to his immaturity. His prospects of rehabilitation remain significant but, as the events of the last few months demonstrate, there is also a significant risk that the offender will not rehabilitate.
35. I have indicated that the offence was serious and warrants a sentence of 18 months' imprisonment. Unless a lesser mode of service will address all relevant sentencing principles, that sentence would need to be served by way of full-time imprisonment.
36. Because there remains a good prospect that the offender will, in the near future, be re-admitted to Arcadia House and show a stronger commitment to rehabilitation than he did on the last occasion, I am prepared to leave open the possibility of granting bail to the offender to enable him to attend Arcadia House. I do not consider that it would be reasonable to grant bail in the meanwhile. The offender is clearly facing a significant sentence of full-time imprisonment and, because he may relapse, he poses a risk to the community, although I accept that there is no evidence that there has, at this point, been a relapse.
37. Consequently, I propose to adjourn the proceedings to see whether the offender is re-admitted to Arcadia House. If that occurs, parties have liberty to re-list at short notice. I refuse bail in the meanwhile.
15 February 2018
38. When the offender appeared before me on 12 October 2017, I refused bail. The offender remained in custody until 1 November 2017, when I granted bail on the basis that the offender was to enter the Arcadia House Program. The offender did so. He engaged very well with the Program and on 14 February 2018, he graduated from it. He has developed a proposal in relation to ongoing treatment following his graduation.
39. Today I was provided with two ICO assessment reports updating the offender’s suitability for an ICO. The reports refer to the relationship between the offender and his partner. They indicate that the couple has voluntarily sought placement in the Karralika Family Program. This is a lengthy and fairly intense program. They have been placed on the waiting list. Although, there is no immediate prospect of their acceptance, it is hoped that they will be accepted within the next few months. It is very important that the offender and his partner avail themselves of that opportunity when it is given to them. They are obviously committed to an ongoing relationship which will not flourish unless both can rehabilitate in relation to their drug problems.
40. I also note that the offender continues to be assessed as at a medium risk of reoffending. It is clear that the risk of reoffending is very closely related to whether he is able to rehabilitate from drug addiction.
41. I am informed by counsel for the offender that those administering ICOs are content for offenders to participate in some Karralika programs while remaining under the general supervision of Corrective Services as part of an ICO. Consequently, I propose to impose an ICO.
42. I am satisfied that the offender is eligible for an ICO pursuant to s 77 of the Crimes (Sentencing)Act2005 (ACT) (Sentencing Act). The requirements of s 78 of the Sentencing Act have been met. I accept the recommendations in the recent ICO reports.
In sentencing the offender today, I will take into account the period of three weeks that he spent in custody from 12 October 2017 to 1 November 2017, and the period of approximately eight weeks that he spent in residential rehabilitation at Arcadia House. I will count the time spent in rehabilitation at about 50 per cent of an equivalent period of imprisonment.
44. The offender is therefore sentenced to 16 months and two weeks’ imprisonment. Pursuant to s 11 of the Sentencing Act, I make an ICO which includes the following additional conditions:
(a)That the offender pursue his application for admission to the Karralika Family Program and, when accepted, undertake that program.
(b)The offender is to undertake such other treatment for substance abuse as is directed by ACT Corrective Services.
(c)There is to be a curfew confining the offender to his residence between 8.00 pm and 7.00 am for such period as is determined by the Services.
(d)The offender is not to communicate or associate with the co-offender, Mr Ndlovu.
45. I note for the record that the offender is to appear before the Queanbeyan Local Court on 19 February 2018 in relation to offences that allegedly occurred on 28 February 2017, prior to this matter coming before me for sentencing.
46. Mr Al Mofathel, you are still a young man. When I first met you, I thought that you were quite immature. Through this process you have developed a lot more maturity and insight. I know that it is very difficult to commit to rehabilitation when using drugs is so much "fun". But if you are going to have a good relationship, you and your partner need to take a different course; a much more mature course. You have started down that path. I am very glad to hear that your partner is interested in rehabilitation. I wish both of you very good luck. I know that you are committed and I hope you are able to maintain that focus.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 14 March 2018 |
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