R v Elakkoumi
[2017] VCC 198
•3 March 2017
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-15-00083
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAHAMMED ELAKKOUMI |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2017 | |
DATE OF SENTENCE: | 3 March 2017 | |
CASE MAY BE CITED AS: | R v Elakkoumi | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 198 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Hamill | Office of Public Prosecutions Victoria |
| For the Accused | Mr R. Backwell | Theo Magazis & Associates |
HIS HONOUR:
1 Mahammed Elakkoumi, you have pleaded guilty to eight charges of burglary and six charges of theft.
2 The prosecutor opened the circumstances of your offending by reading from a written Prosecution Summary, which was tendered.
3 In early February 2014 police undertook an investigation into commercial burglaries of Optus stores inside shopping centres in the Melbourne metropolitan area. Between 20 January 2014 and 3 February 2014, seven burglaries were committed on Optus stores with stock totalling $322,164 being stolen. Between 4 and 9 February a further four burglaries on Optus, Telstra and JB Hi-Fi stores were committed with a total of $25,272 worth of stock being stolen. 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.
4 You were involved in five burglaries of stores that resulted in items being stolen. In two further burglaries, in which you were involved, no items were stolen. You also burgled the home of an associate to whom the group was selling stolen phones whilst he was being distracted by a co-offender of yours. Money ($49,000) and four iPhones were stolen in this burglary.
5 Three co-offenders have already been sentenced.
6 Judge Grant sentenced Zack Amouche on 1 April 2015. He was released on a community correction order (CCO) for two years and ordered to perform 300 hours of unpaid community work.
7 On 30 June 2016 I sentenced Ibrahim Allouche and Aboud Allouch.
8 Ibrahim Allouche was sentenced to 170 days imprisonment with a two year CCO, including 300 hours unpaid community work.
9 Aboud Allouch was sentenced to 15 days imprisonment with a two year CCO, including 150 hours of unpaid community work as well as complying with the conditions of a Justice Plan.
10 The total value of items stolen by Ibrahim Allouche was $161,241.
11 The total value of items stolen by Aboud Allouch was $202,561.
12 The total value of items stolen in store burglaries by you was $222,111. When the $49,000 stolen from the associate is added this makes the value of property stolen by you total $271,111 plus four iPhones.
13 You have a criminal record. Relevantly, you were sentenced in the Broadmeadows Magistrates' Court on 13 February 2014 to a wholly suspended sentence of 3 months' imprisonment for a series of dishonesty offences including two burglaries.
14 You were on bail from 8 January 2014 until sentenced on 13 February 2014 and accordingly were on bail at the time of the commission of most of the current offending (Charges 1 to 12) and were subject to the suspended sentence just referred to at the time of the burglary and theft at your associates home (Charges 13 and 14).
15 You have now spent 467 days in pre-sentence detention.
16 You have also spent a further 39 days in pre-sentence detention on remand for a pending trial due to begin on 4 September this year. Although I would ordinarily pay regard to this period in fixing your sentence for the current offending you instructed your counsel to urge me to disregard this period of remand so that it will remain available to you as pre-sentence detention should you be found guilty of the pending matter. I accept this and will not take this period of remand into account. Of course I draw no inference adverse to you because of the pending matters concerning which I have been told you intend to plead not guilty.
17 Because of the pending matter the reality is that you are unlikely to be in a position to comply with the conditions of a community corrections order (CCO). Your counsel submitted that I should therefore impose a sentence of imprisonment but need to be vigilant to ensure that you are sentenced to a term that is not disparate, in all the circumstances, to the sentences imposed on your co-offenders, two of whom received imprisonment combined with a CCO and one of whom was simply sentenced to a CCO.
18 Unfortunately, there has been a substantial delay in your case coming to trial.
19 You were arrested in March 2014. The committal was heard in January 2015. Zack Amouche pleaded guilty in March 2015. The trial of you and your remaining two co-offenders was listed in January 2016 at which time your remaining co-offenders pleaded guilty. After lengthy plea submissions in April, May and June, as noted previously, your remaining co-offenders were sentenced on 30 June 2016. A final directions hearing for your trial was listed on 23 August. This final directions hearing was adjourned to allow plea negotiations and was relisted on 13 September, 26 September and 7 October when the trial date of 24 October was confirmed. Plea negotiations continued during this period and the matter was finally resolved on 25 October 2016. The plea hearing has been adjourned twice due to the unavailability of the prosecutor and then me.
20 I accept your counsel’s submission that you have had the stress of pending proceedings over a lengthy period. Additionally, the plea resolution was partly resolved in your favour without all charges proceeding. So your resistance to pleading guilty has in part been vindicated.
21 Although it cannot be claimed that you pleaded guilty as early as any of your co-offenders your pleas nevertheless facilitate the course of justice, saving time and expense and the need for witnesses to give evidence. I accept that your pleas were accompanied by remorse as expressed to the psychologist, Mr Ian H. Mackinnon, who assessed you for these proceedings.
22 Disposal and forfeiture orders were sought and consented to by you.
23 You were still young at the time of the offending and now are only aged 23. I accept that your rehabilitation remains an important factor.
24 Your counsel sketched your background. You were born in Australia and are of Lebanese origin. Your parents separated when you were young. You have three sisters. You have a limited work history. You began using methamphetamine and cannabis in your late teens. On release from prison you can return to live with your parents. Your mother is unwell and you were her carer at the time you were imprisoned.
25
A psychological report from Ian H. Mackinnon was tendered. It contains details of your history. Mr Mackinnon thought your functional intelligence fell at the low end of normal. Your drug use is in remission due to imprisonment.
Mr Mackinnon thought you had been long plagued with symptoms of a psychotic disorder in partial remission. This condition combined with your drug use seems to be the primary explanation for your offending.
26 You need support to avoid relapsing into drug use as well as to manage your mental state issues. You have gravitated to disaffected people. Mr Mackinnon thought you would benefit from a community treatment order of at least 2 years duration. I think it is highly likely that you would benefit from counselling support to develop your social functioning.
27 It is noted in discussion, a central factor if not the crucial factor in determining your rehabilitative potential is your capacity to remain drug free.
28 There are some features of your situation that distinguish you from your co-accused. Two tables of comparison between you and your co-offenders were tendered by the prosecution. All four of you were youthful offenders and, as noted, you are still only 23.
29 Ibrahim Allouche is the co-offender whose circumstances your circumstances are most closely aligned, although I consider, and I think this was conceded, your circumstances require greater punishment.
30 You have pleaded guilty to two more burglaries than Ibrahim Allouche and Aboud Allouch and three more than Zack Amouche. The amount stolen by you is about $70,000 greater than the amounts concerning by Zack Amouche and Aboud Allouch - I am just not sure that I've got that right. Let me just check that. Yes, I have got that. I thought the figure for Zack Amouche was much less than I had noted there. It is, is it not? It is about - it is substantially less, was it not?
31 MS HAMILL: It is Your Honour, because the Zack Amouche figure, $144,000 worth of it is handle as opposed to theft.
32 HIS HONOUR: That was the reason.
33 MS HAMILL: That's evident from the other table.
34 HIS HONOUR: Yes, that is what I have overlooked. That is right, so, the total amount was still approximately $70,000 less than the total amount involved concerning Mr Elakkoumi.
35 MS HAMILL: Yes, Your Honour.
36 HIS HONOUR: Yes, that is what I had in mind then, I think.
37 MS HAMILL: Most of Mr Amouche's amount referable to handling.
38 HIS HONOUR: That is what I must have been thinking of and I drafted this. The - the actual amount of the burglaries in Zack Amouche's case was only about $70,000; wasn't it?
39 MS HAMILL: Yes.
40 HIS HONOUR: Right. I will start that paragraph again. You have pleaded guilty to two more burglaries than Ibrahim Allouche and Aboud Allouch and three more than Zach Amouche. The amount stolen by you is about $70,000 greater than the amounts concerning Zach Amouche and Aboud Allouch and $95,000 greater than Ibrahim Allouche.
41 Your pleas of guilty came later than your co-offenders. There was very strong evidence of rehabilitative progress and potential in the cases of your co-offenders. The imposition of imprisonment beyond time served would have meant returning to prison, the young offenders I sentenced. You are drug free but your rehabilitative progress and potential are uncertain You have been undertaking rehabilitative courses in custody, although your rehabilitative opportunities are necessarily limited by your imprisonment.
42 Zack Amouche had no prior criminal history however Aboud Allouch and Ibrahim Allouche both had criminal records. Aboud Allouch is intellectually disabled and the CCO on which he was released had a condition requiring compliance with a Justice Plan.
43 Ibrahim Allouche offended whilst subject to supervision including a suspended sentence and had a significant criminal history. He also had a pending driving matter and failed to appear on bail. You offended whilst on bail and whilst on a suspended sentence. You have a prior history for dishonesty including two burglaries as well as subsequent dishonesty offending.
44 Although the period of imprisonment imposed on Ibrahim Allouche was modest, the CCO was for two years and he was required to perform 300 hours of unpaid community work.
45 Your counsel submitted that a sentence of less than 12 months should be imposed. If that submission was rejected he submitted that I should impose a sentence and fix a non-parole period.
46 The prosecution declined to respond directly to your counsel’s submission but did note that the sentence imposed on Ibrahim Allouche operated for a period of 30 months. At the time of imposing this sentence on Ibrahim Allouche I stated that I regarded the sentence as an opportunity for him to prove the 170 days he had spent in custody had been an effective deterrent and rehabilitative impetus. I also stated that if the CCO was breached additional gaol was almost inevitable.
47 I further stated that the penalty I imposed on Ibrahim Allouche was particularly merciful. As noted in discussion during your plea parity considerations were important for the cases heard by me of your co-offenders as well as remaining important in your case. That is the principal reason why I intend to impose a sentence on you that I consider modest in all the circumstances for the offending you committed. However, a sentence of less than 12 months, as argued for by your counsel, would in my view be manifestly inadequate and out of kilter with the sentences passed on your co-offenders and Ibrahim Allouche in particular.
48
You will be convicted of all charges and sentenced to an aggregate term of
20 months' imprisonment. I fix 12 months as the period you must serve before being eligible for release on parole.
49 You have served 467 days in pre-sentence detention. That period is to be reckoned as time already served on the sentence I have imposed. Accordingly, you have already served the non-parole period I have fixed.
50 The s.6AAA indication for Aboud Allouch and Ibrahim Allouche allowed for a likely discount of just under and just over six months for the pleas of guilty respectively.
51 Those s.6AAA statements were qualified by the terms, "likely" and "at least". Courts tend to identify s.6AAA discounts relative to the length of the sentence imposed; the greater the sentence the greater the discount. The exercise is often noted to be artificial. Doing the best I can, although your pleas came later than your co-offenders, had you not pleaded guilty expect I would have imposed a sentence of about 26 months imprisonment and fixed a non-parole period of about 18 months' imprisonment.
52 Is there anything I have overlooked that counsel want to point out to me? I haven't signed those orders yet?
53 MS HAMILL: Yes, if I could hand up copies from - - -
54 HIS HONOUR: All right. Well, I have signed those. I think I will leave the Bench and I will come back to view the appeals in five minutes or so.
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