R v Allouche and Allouch
[2016] VCC 914
•30 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-15-00085 & CR-15-00084
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
IBRAHIM ALLOUCHE
and
ABOUD ALLOUCH
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April 2016, 2 May 2016 and 28 June 2016 | |
DATE OF SENTENCE: | 30 June 2016 | |
CASE MAY BE CITED AS: | R v Allouche and Allouch | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 914 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Kapataniak | OPP Victoria |
| For the Accused Allouche For the Accused Allouch | Mr J. Lavery Mr R. Edney | Pica Criminal Lawyers Emma Turnbull Lawyers |
HIS HONOUR:
1 Ibrahim Allouche, you have pleaded guilty to six charges of burglary, four charges of theft, and one charge of handling stolen number plates.
2 Aboud Allouch, you have pleaded guilty to six charges of burglary and five charges of theft.
3 The prosecutor, Ms Kapitaniak, comprehensively opened the circumstances of the offending, which occurred between 23 January 2014 and 9 February 2014 in your case Ibrahim Allouche, and 25 January 2014 and 9 February, in your case Aboud Allouch.
4 In early February, police undertook an investigation into commercial burglaries of Optus stores inside shopping centres in the Melbourne metropolitan area. Both of you were involved in some of these burglaries. A common modus operandi was used. A group of three to five offenders wearing balaclavas and gloves and dressed similarly would use a rock or a boulder to smash a shop window, press the emergency button, enter the premises and steal property, principally mobile phones, which were carried away in a sleeping bag.
5 Items valued at a total of $161,241 were stolen in the burglaries committed by you, Ibrahim Allouche.
6 Items valued at a total of $201,561 were stolen in burglaries committed by you, Aboud Allouch.
7 Four burglaries were committed by you jointly.
8 One other co-offender, Zack Amouche, was sentenced by Judge Grant on 1 April 2015. He was released on a community corrections order for two years and ordered to perform 300 hours of unpaid community work. Unfortunately, Judge Grant was not available to hear your pleas.
9 An alleged fourth co-offender, Mohammed Elakkoumi, has his charges listed for trial in October 2016.
10 Disposal orders have been sought and I will make them.
11 You were both arrested on 13 March 2014.
12 Ibrahim Allouche, you spent 170 days in pre-sentence detention.
13 Aboud Allouch, you spent 15 days in pre-sentence detention.
14 Your charges were listed for trial on 27 January this year. The matters were resolved whilst the trials were waiting in the reserve list. Mr Elakkoumi’s trial was not settled and as noted was adjourned.
15 Both your pleas came late, but both of your counsel submitted that they should nevertheless carry considerable weight. The need for a trial in each of your cases has been avoided. You have both accepted responsibility for your offending. The matters were complex and you were entitled to legal advice before reaching a resolution. In any event, the prosecution does not resist the argument that your pleas carry considerable weight. They have utilitarian benefits for the administration of justice and the prosecution accepts that your pleas, in both of your cases, reflect remorse.
16 Ibrahim Allouche, Mr Lavery appeared for you. An "Outline of submissions on plea" was tendered. Mr Lavery summarised your background and personal circumstances by noting that you come from a family of 12. You completed Year 12 in 2010, working during your secondary education. You began a TAFE course in real estate after leaving school but did not complete this because you thought your criminal record would disqualify you from working as an agent. You worked as a bricklayer in 2012, but were unable to continue in this job when you lost your car. You then worked as a carpenter in 2013, but were off work for two months when you were hospitalised after suffering a head injury from being struck with a baseball bat. You “became involved in using ‘ice’ during that time”.
17 Three character references were tendered.
18 One was from your girlfriend of the previous two years, Sandi Ishow. She is now your ex-girlfriend, but was your current girlfriend when the reference was tendered. She said when she and you first met, you were “out of control and often made impulsive and generally stupid decisions”. Your relationship with her was often shaky because of your drug use. By way of contrast, when you were released from prison, she noticed a “dramatic change”. You had a new outlook on life and wanted to positively contribute to society. You returned to work, accompanied your partner doing charity work associated with her nursing career. Your relationship blossomed. She said you have matured and softened into a “respectable, compassionate gentleman”.
19
This reference was dated 19 April 2016. At the time it was tendered, on
27 April, your girlfriend was present in court. She was not asked to give evidence. Plea submissions were adjourned that day to be briefly resumed on 2 May, and then further adjourned on 28 June 2016, to enable reports concerning Aboud Allouch to be obtained. On 16 June, my Associate received an email from Ms Ishow. She said she wanted to contact me. My associate contacted the prosecution instructor and informed him of the email. The prosecution instructor received a similar email. During discussion between my associate and the prosecution instructor, my associate was told that your girlfriend referred to a "risk to her safety".
20 As a result of all this, I had concerns about the status of your girlfriend’s testimonial and the extent to which its contents remained accurate. The relevance of the email to the character reference from your ex-girlfriend was not initially appreciated by the prosecutor and much time was spent before the issues concerning the email could be discussed. In the end, I was informed that there was no suggestion that the testimonial was the product of pressure and that it represented the truth at the time it was written. In the interim, it seems you and your girlfriend have fallen out because of an allegation of infidelity on your part. I was therefore asked by both parties to treat the contents of the letter as accurate, with the qualification that the relationship now seems to have ended.
21 Another reference was from your sister. You have been living with her since mid-November 2014. She also spoke of your change in behaviour and attitude. She noted your remorse, your commitment to work and family, and your desire to progress your life.
22 The third reference was from your employer. He met you in early February 2015. He was cautious about taking you on because of your criminal record and although he was not impressed with you at first because you lacked discipline, after speaking to you about your attitude and the opportunity he had given you, he says you changed dramatically. He considers you have potential and with a “little bit of discipline and guidance”, he thought you would continue on a promising path. He spoke of your remorse and he said he will support you whatever the outcome of the proceedings.
23 As noted earlier, your ex-girlfriend was present in court when her letter was tendered. So was your sister when her letter was tendered. Your employer could not attend because of his wife’s illness. Beyond the qualification concerning the ending of your relationship with your girlfriend, the prosecution did not challenge any of this material.
24 You have a serious criminal history. The prosecution focussed on this as a significant distinguishing factor between your circumstances and those of Aboud Allouch, who has a criminal history, but more modest than yours, and Zack Amouche, who has no criminal history.
25 No party suggested that the overall criminality of you two and Mr Amouche, was significantly different.
26 Ibrahim Allouche, you are less than two months older than you, Aboud Allouch, and both of you are about a year older than Zack Amouche. You two were 20 at the time of the offending and Zack Amouche was 19. You have both recently turned 23. It is accepted by the prosecution that you are both youthful offenders and that the considerations pertinent to youthful offenders are applicable. Of course, I also need to keep your criminal histories in mind, especially yours, Ibrahim Allouche.
27 Ibrahim Allouche, you have Children’s Court appearances in 2011 and 2012, however you were not convicted but were released on adjourned good behaviour bonds. Importantly, you were sentenced to six months' imprisonment, albeit wholly suspended, in 2012 for intentionally causing injury and affray. You were fined for theft and criminal damage in 2012, placed on a CCO for making a threat to kill, harassing a witness, and hindering police in 2013, and once again sentenced to six months' imprisonment, albeit wholly suspended, for affray and intentionally causing injury in 2013.
28 That means that the current offending was committed when you were subject to a CCO and on two suspended sentences. Of course the fact that you so offended whilst subject to these orders, is important.
29 Furthermore, you will face breach proceedings and you will be required to serve these suspended terms of imprisonment, unless able to show it would be unjust to do so, in view of exceptional circumstances which have arisen since the order suspending the sentence was made. If imposed, these restored sentences will have to be served immediately they are imposed, and cumulative on any other term of imprisonment previously imposed, unless the court otherwise orders. Accordingly, you are at grave risk of imprisonment for a term of up to 12 months, which may have to be served in addition to any term I impose.
30 It seems you also have at least one pending matter for driving whilst suspended and perhaps failing to appear on bail.
31 Ibrahim Allouche, as noted earlier, the prosecution submitted that the principal distinction between you and Zack Amouche is your criminal history. Although conceding the relevance of your youth, your pleas of guilty, your rehabilitative progress, which the prosecutor described as “telling”, s.5(4C) of the Sentencing Act, which was specifically drawn to my attention by the prosecutor and which requires me to consider whether the purposes of the sentence can be met by a community corrections order and parity considerations, it was submitted by the prosecutor that given your prior criminal record, including the fact that the your offending breaches previous orders, the nature of the offending, including the value of the items stolen and the need for general deterrence, an immediate term of imprisonment was warranted.
32 I tentatively agreed with this submission, but posed the question whether such a term of imprisonment must exceed the time spent in pre-sentence detention if coupled with a lengthy CCO, remembering that if it did, that would require your return to prison, disrupting your commendable rehabilitative progress.
33 I also asked, even if ordinarily a longer term of imprisonment was required, to what extent am I constrained by the sentence imposed by Judge Grant on Zack Amouche?
34 After submissions were concluded on 27 April, the proceedings were adjourned for mention on 2 May. In the interim, I had an email sent to the parties that specifically raised the question of the extent to which your prior criminal history and that of Aboud Allouch is relevant in giving weight to specific deterrence and associated matters such as the risk of re-offending, prospects for rehabilitation and the likelihood of compliance with court orders in circumstances where no submission was made by the prosecution concerning the need for specific deterrence, at least at that stage, and the unchallenged evidence of reformation and rehabilitation that was relied upon in both your cases. I referred the parties to the Sentencing Manual at paragraphs 10.3.7.1, 10.3.7.2 and 10.3.10 and the cases of Bala [2010] VSCA 78, paragraphs 15 and 16, and De Angelis [2012] VSCA 279 at paragraphs 17 and 18.
35
At the mention on 2 May, it was agreed that written submissions would be provided. I subsequently received those submissions. Those from
Ms Kapataniak were dated 9 May 2016, and those from Mr Lavery were received on 16 May 2016.
36 Before turning to the content of the submissions, I note that I had you, Ibrahim Allouche, assessed to determine your suitability for release on a CCO, coupled with a period of imprisonment. You were assessed as being at medium risk of offending and suitable for release on a CCO. The recommended conditions were: unpaid community work; drug treatment and rehabilitation; programs to reduce re-offending; and supervision.
37 Mr Edney appeared for you, Aboud Allouch. While conceding that the offending was commercial, he distinguished the entry into the premises from home burglaries. He noted the relatively short period of the offending.
38 Your involvement seems to have been driven by your need for and use of drugs and your connection with the social milieu of drug users. You were using cocaine.
39 A psychological report from Dr Aaron Cunningham, dated 19 April 2016, was tendered. I accept its contents. The report summarised your background. You, together with three brothers and one sister, were raised by your mother, who left your father when you were 14 because your father was violent, gambled and abused drugs. You left home at 18.
40 You and your wife have been together for a year. You married in June 2015. You had a child in late-March this year. I might not be completely accurate about the time they have been together. It may be longer than that. I should not have spoken in that way. I might not be completely accurate about the time that you and your wife have actually been together, if you married in June 2015. Counsel, do you know how long it is?
41 MR BRENNAH: I don't - I can get his instructions briefly.
42 HIS HONOUR: Just check for me.
43 MR BRENNAH: Your Honour, I'm instructed that they were married on June 12 2015, but got together on 4 April 2015.
44 HIS HONOUR: Yes, well that is brought it in the timeframe I think I had in mind. Very well, thank you.
45 So let me just repeat. You married in 2015 and had a child in late-March this year. You live together in a rented unit. The child has given you a sense of meaning and purpose.
46 You had a limited education, being placed in a class for "slower kids". You were also placed in a special school and have received the Disability Support Pension. There was initially a dispute about whether you were intellectually disabled and I had my associate check with the Department of Human Services and I was informed that you have been registered with Disability Services as intellectually disabled.
47 You have a poor work record, but regret this and have expressed a desire to apply yourself to work.
48 Mr Cunningham thought you met the diagnostic criteria for post-traumatic stress disorder, PTSD, due to exposure to distressing violence when you were growing up. He said you had feelings of worthlessness and thoughts of death. You presented as irritable, angry, reckless, self-destructive, hypervigilant, with sleep disturbance and difficulty concentrating. He assessed your full scale IQ as 66, within a range of 63 to 71. Overall thinking and reasoning skills were in the extremely low range. He thought you would benefit from Disability Services assessment to determine your eligibility for case management. He considered your intellectual deficits were such that you would be susceptible to peer influence and less able to consider the long-term consequences of your actions. He considered that this impairment contributed to your decision to use drugs and commit the offending behaviour.
49
Mr Cunningham noted that your since your release from prison, you have been stable and successfully completed the CISP program. A CISP progress report was tendered. You have remained drug-free, ceased your negative peer association, and are committed to supporting your partner and child.
Mr Cunningham thought, because of your PTSD, prison would weigh more heavily on you, if the condition was untreated and may increase if you are exposed to more trauma. Mr Cunningham thought you would be susceptible to negative influences in prison. If appropriately supported in the community, the risk of re-offending would reduce and positively predict rehabilitation.
50 You have recently obtained employment with a roofing firm. A letter from your employer was very supportive. Your employer offered to continue to support you, noting that you are keen to learn, especially now you are a father.
51 As noted earlier, you have a criminal history. You have Children’s Court appearances in 2011 and 2012 for dishonesty and driving matters. The dishonesty matters include aggravated burglary, burglary and theft, but you were not convicted and were placed on a good behaviour bond.
52 In early-2013 you appeared twice in the Melbourne Magistrates Court. On the first occasion you were convicted of affray, intentionally causing injury and failing to answer bail. You were fined and placed on an adjourned bond, with condition you continue to receive psychological counselling. Ibrahim Allouche was a co-offender concerning this matter and as noted, he received six months' imprisonment, wholly suspended. This involved an attack on a victim who was later harassed by you and Ibrahim Allouche, albeit on separate occasions.
53 As noted earlier, Ibrahim Allouche who was also charged with threatening to kill and hindering police at the time of his harassment, was placed on a CCO, as were you, for the offence of your harassment and resisting police, which constitutes your second appearance at the Melbourne Magistrates Court in 2013. This order was almost, but not completed, when you committed the current offending. The current offending therefore breaches this order.
54
Letters from the Moonee Ponds Medical Clinic were tendered. One dated
2 December 2015 notes your depressive disorder and anxiety. Your doctor said you have spent considerable time reflecting on your errors and are profoundly remorseful. He stated that you have been under considerable stress. On a personal level, he thought you were reformed, exhibiting a genuine willingness to start afresh. The second letter, dated 26 April 2016, describes your child’s birth, your wife’s father’s cancer diagnosis, and your wife’s absence of support aside from you. Once again the doctor describes you as a “reformed father and doting husband”, profoundly committed to your family, in full-time work and becoming “a valuable member of society”.
55 Finally, a letter from Leila Alloush, (no relative) was tendered. She is from the Victorian Arabic Social Services and knows you because you have utilised counselling and support services through this organisation. She says you have made significant changes in your life since being charged with the current matters: marriage, birth of a child, employment, drug abstinence, and remaining crime-free. She says you are truly remorseful for the offending. Continued support is available and she expresses confidence in your reformed character.
56 Your counsel conceded that offending such as yours would normally attract imprisonment, but submitted that I should release you on a lengthy CCO. The principal matters he relied upon were: your intellectual disability, your PTSD, the delay and rehabilitative progress, your youth, your commitment to family, the salutary impact of imprisonment, albeit for only 15 days, and the need to encourage your commendable rehabilitative efforts.
57 The prosecution initially submitted that a term of imprisonment was appropriate, but added that if your intellectual disability was established, then sentencing submissions might change to include release on a CCO with a justice plan.
58 I had you assessed to determine your suitability for release on a justice plan, pursuant to release on a CCO. This was the primary reason why the pleas in this matter had to be adjourned for a lengthy period.
59 In additional written submissions, Mr Edney misapprehended a submission made by the prosecution concerning your detention in a youth justice centre, which, as he noted, was never an option. In these submissions, which I will mark as Exhibit 9, he reiterated his submissions concerning the significance of your intellectual disability, your PTSD and the engagement of the Verdins principles, with particular reference to Muldrock v The Queen [2011] HCA 39 and Tran [2012] VSCA 110.
60 I have now received a statement of intellectual disability, issued in accordance with the Disability Act 2014, a client overview report and a justice plan. These documents will be exhibited and will be marked Exhibit 10. I have also received a community corrections order assessment outcome report.
61 The overview report provides a helpful summary of your level of disability, your developmental history, your contact with Disability Services and your current circumstances. The justice plan makes recommendations concerning your mental health, case management and drug and alcohol counselling.
62 This report and plan was provided to Corrections to assist in determining your suitability for release on a CCO.
63 The assessment was favourable.
64 In light of this material, the prosecution conceded that it was open to me to release you on a CCO, with attached justice plan, in combination with
a sentence of imprisonment to coincide with the time you have already served in prison. That is what I will do and I will follow the recommendations contained in the assessment.
65 You will be convicted on each charge. You will be sentenced to an aggregate term of 15 days' imprisonment, in combination with release on a CCO for a period of two years.
66 You have already served 15 days in pre-sentence detention and I declare that this period is to be reckoned as time already served under the sentence I have imposed. This means you have served the imprisonment component of the order.
67 In addition, you will be released on a CCO for two years. You are to perform 150 hours of unpaid community work [48C]. You are to undergo assessment and treatment (including testing) for drug abuse or dependency [48D(3)(a)]. You are to undergo treatment and rehabilitation for programs to reduce your offending behaviour [48D(3)(f)]. You are to be under supervision [48E]. You are to participate in the services specified in the justice plan [s.80].
68 You can sit down.
69 The written submissions from Ms Kapitaniak, dated 9 May 2016, referred to earlier, address the issue of parity, specifically in relation you, Ibrahim Allouche. I will mark those submissions as Exhibit C. A table was attached to the submissions, which was intended to provide a summary of the relevant differences concerning you and your two co-offenders.
70 In short, it was submitted that the weight to be given to your criminal history must be great, given that you committed the current offending whilst subject to two suspended sentences and a CCO. Rehabilitation therefore must be tempered with the need to deter you and ensure just punishment. Sentencing instructions confirmed that pre-sentence detention was insufficient. Additionally, although it was conceded that your prospects of rehabilitation seemed positive, it was submitted, I should nevertheless be guarded about this.
71 It was submitted that although the evidence called on your behalf from your girlfriend, sister and employer, indicated a stable and positive situation at home and work. Specific deterrence remained a “significant matter in this case”.
72 Some reliance was placed on the difference in your age and Zack Amouche’s age, both at the time of offending (20 and 19 respectively) and at the time of sentencing (23 and 20 respectively). Mr Amouche had no prior criminal history. It was noted that Mr Amouche made significant admissions and pleaded guilty immediately post-committal, rather than pre-trial as you did.
73 Finally, the fact that you were subject to two suspended sentences and a CCO was heavily relied upon by the prosecution to distinguish you from Zack Amouche. You had the benefit of support and supervision from Corrections, as well as knowing that a breach of the supervisory orders would be regarded seriously, yet you offended by committing six distinct burglaries. Accordingly, Ms Kapitaniak argued your rehabilitative prospects should be seen as "guarded" and both specific and general deterrence assume greater significance that they might otherwise.
74 In the end, the prosecution submitted that there were real and substantial differences between you and Zack Amouche that justifies disparity.
75 I was referred to Lowe v R [1984] 154 CLR 606, and in particular, the dilemma faced by judges when sentencing if a co-offender has been given an inadequate sentence. It was submitted that to follow the earlier inadequate sentence would be to compound the error of the earlier sentence.
76 I accept that I should not impose a sentence on you that I consider outside the permissible range in the interests of parity. However, in order to avoid an unjustifiable disparity between offenders, it is permissible for a sentencing judge to impose a sentence that “might otherwise be regarded as at the bottom of the range, but not to the point where the offender’s sentence is wholly inappropriate or outside the range”. Taleb [2014] VSCA 96.
77 In written submissions, which I will mark Exhibit 11, your counsel argued that the distinction and the timing of your pleas and Zack Amouche’s pleas, should be seen in the setting of the need to analyse the complexity of evidentiary issues in the proposed trial. In any event, it was argued your pleas still have high utilitarian value and were accompanied by remorse.
78 Your age at the date of offending is the critical time, it was submitted, and the difference with Zack Amouche is minimal. Your youth, despite your criminal history, remains important it was argued, particularly in a case such as yours where you have not been previously sentenced to immediate imprisonment. Your counsel noted that it is not as if it was being argued that imprisonment should not be imposed, the issue concerns the length of any such term that is necessary. It also needs to be kept in mind that any sentence beyond 170 days will see you return to prison in the face of unchallenged and undisputed evidence of rehabilitative progress over the last 20 months or so. It was submitted that you have demonstrated a significant degree of rehabilitation, despite the charges of driving whilst suspended and failing to answer bail, in respect of the same matter.
79 Next, it was argued that there was little to distinguish the offending. Indeed it might be argued that “Amouche has more serious matters".
80 As I see it, the principles relating to parity were not really in dispute. It is their application that is the problem. It is clear, in my view, that you should be subject to harsher punishment than your co-offenders. Your counsel never suggested otherwise. Your criminal history and the orders you were on at the time of your offending compel this conclusion. The question is, how much greater must the punishment be and in particular, how much greater should your punishment be than that of Zack Amouche? Am I absolutely required to impose a sentence of imprisonment that will return you to prison and if so, for how long? I need to keep in mind that you have already spent considerably longer in prison that your co-offenders, Mr Amouche, not having been imprisoned. Aboud Allouch, having been in prison for 15 days, you, on the other hand, have spent just short of six months in prison.
81 Assessing your rehabilitative potential is not easy. On the one hand, your prior history suggests a high risk of offending. On the other, the evidence of your rehabilitative progress and changed character since experiencing prison and being released, is very encouraging.
82 The language used by your ex-girlfriend is strong. This was part of the reason why I could not understand the prosecutor’s initial failure to appreciate the potential significance of the email sent by her. However, I have now been informed that the concerns she raised have been investigated by police and she has been spoken to by a senior officer and maintains her account of the “dramatic” changes you have made since being imprisoned. Accordingly, it seems to me that, if anything, I can have more confidence in her testimonial, given that it is maintained even after she is hostile to you for other reasons.
83 It may well be that you will be required to return to prison as a result of having your suspended sentences restored. In those circumstances, the undesirability of returning you to prison and disrupting your rehabilitative progress, would not carry the same weight.
84 However, I need to sentence you on the basis that you are currently in the community and not prejudge what the outcome of the breach proceedings will be. Even so, if you are required to serve time in prison for the breaches or any other matter, the desirability of continuing to foster your rehabilitation will remain relevant, and even if I was certain that you would be imprisoned for 12 months or so for the pending matters, the very fact of that sentence might justify limiting my sentence to lessen the risk of prison contamination and disrupt your rehabilitation to the minimum permissible.
85 Although a sentence of 170 days' imprisonment, in combination with a CCO seems very modest for offending such as yours, it is in my view, a justifiable, if particularly merciful outcome. That is what I intend to do. However, you should understand the opportunity you are being given and should you breach the CCO by re-offending or by failure to comply with conditions, you will in all likelihood, be returned to prison.
86 Indeed, you should regard the sentence I will impose, not as a final order, but an opportunity for you to prove that the 170 days spent in custody has been an effective deterrent and rehabilitative impetus. If you comply with the conditions of the CCO, take advantage of it and remain crime-free, then you will have demonstrated that the 170 days' imprisonment was sufficient prison penalty. Both you and the community will be the beneficiaries. The interests of general and specific deterrence will arguable have been met.
87 If you do not do so, then additional gaol will be almost inevitable. In that sense, the sentence is being held in suspension. If you are returned to prison, particularly for any lengthy period, this is likely to have very serious consequences for your future, so the stakes are high and you need to apply yourself.
88 You will be convicted on all charges and sentenced to an aggregate sentence of 170 days' imprisonment, in combination with a CCO.
89 You have already served 170 days in pre-sentence detention and this period is to be reckoned as time already served under the sentence I have imposed. That means you have served the imprisonment component of your sentence.
90 The CCO will be for two years. You will be required to perform 300 hours of unpaid community work [48C]. You are to undergo assessment and treatment (including testing) for drug abuse or dependency [48D(3)(a)]. You are to undergo treatment and rehabilitation for programs to reduce your offending behaviour [48D(3)(f)]. You are to be under supervision [48E].
91 Mr Lavery, the hours of unpaid community work are extensive.
92 MR LAVERY: Yes, Your Honour.
93 HIS HONOUR: Three hundred hours. I am well aware of the fact that from time to time, circumstances change and - particularly because of working commitments and other matters which are conducive to someone's rehabilitation, it sometimes becomes very hard to perform those hours. You client should be reminded that if he gets himself into that situation, an application for a variation can always be made.
94 MR LAVERY: Yes, Your Honour.
95 HIS HONOUR: But my current thinking is that 300 hours is the appropriate period.
96 The only matter left remaining that I wanted to raise with counsel, concerns whether I am required to make a s.6AAA declaration.
97 MS KAPITANIAK: No, Your Honour, not with the - if there's no immediate - actually, no, you probably are actually, there are - with an immediate term of imprisonment, with the - yes, combination, probably for both, you would be.
98 HIS HONOUR: Well - - -
99 MS KAPITANIAK: Yes.
100 HIS HONOUR: It depends under what division the order is made. I guess a term of imprisonment must be made under the - let me just check the provision. Section 6AAA says that I am required to make the declaration if I am making an order under Division II of Part III of the Sentencing Act. That is the - I guess that is the Division under which the sentence of imprisonment is imposed, even though the combination order is made under a different Division. It just seems to me to be so highly artificial to be - to require judges to make a s.6AAA declaration in cases of - combination orders, gaol and CCOs.
101 MS KAPITANIAK: You are not the only one that's said that, Your Honour.
102 HIS HONOUR: Is that right?
103 MS KAPITANIAK: Yes.
104 HIS HONOUR: I mean I suppose I can either just ignore it or do the best I can.
105 MS KAPITANIAK: Yes.
106 HIS HONOUR: I mean, I think all other things being equal, I would be prepared to say that, in the case of Aboud Allouch, if he had not pleaded guilty, then had I sentenced him to a combined sentence of imprisonment and CCO, it is likely that the period would have been at least six months. In the case of Ibrahim Allouche, had he not pleaded guilty and had I sentenced him to a term of imprisonment, in combination with the CCO, it is likely that the period would have been at least 12 months.
107 MS KAPITANIAK: As the court pleases.
108 HIS HONOUR: It should be completely obvious to both accused though that they have benefited from pleading guilty.
109 MS KAPITANIAK: Absolutely. Your Honour has already made the disposal orders. You said that at the beginning.
110 HIS HONOUR: Done that.
111 MS KAPITANIAK: Yes.
112 HIS HONOUR: I have signed that.
113 MS KAPITANIAK: Yes, thank you.
114 HIS HONOUR: Anything else that counsel need to raise?
115 COUNSEL: No, Your Honour.
116 HIS HONOUR: I will leave the Bench and my associate will prepare the orders. He will provide them to counsel and would counsel assist by checking them to make sure they are in accordance with the verbal orders I have made.
117 (Short adjournment.)
118 HIS HONOUR: All right, well thank you for checking those documents.
I understand that they are in order.
119 MR LAVERY: Yes, Your Honour.
120 HIS HONOUR: So we will have Mr Allouche and Mr Allouch sign them. Would counsel assist with signing of the documents please.
121 MR LAVERY: Yes, if I can be excused, Your Honour.
122 HIS HONOUR: You can both come out of the dock, actually, to do that. So
I am happy for you to come and sit behind your counsel. You can do it at the Bar table.
123 You both need to report within 48 hours, but my recommendation is to report as soon as possible. I think there has actually been a time made for Mr Aboud Allouch yesterday.
124 OFFENDER ALLOUCH: Yeah.
125 HIS HONOUR: All right. So, best to get that done ASAP.
126 MR LAVERY: Yes, Your Honour.
127 MR BRENNAH: Yes, Your Honour.
128 HIS HONOUR: All right. Thank you very much.
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