R v George Jouni

[2006] NSWDC 153

CITATION:	R v George JOUNI [2006] NSWDC 153
HEARING DATE(S):	14/12/2006
JUDGMENT DATE:	14 December 2006
EX TEMPORE JUDGMENT DATE:	12/14/2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraphs [32] [33] [34] [35] [36]
CATCHWORDS:	Criminal Law - Sentence - Form 1 - s166 - Larceny - Take and drive conveyance - Drive While licence suspended
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Henry (1999) 46 NSWLR 346
PARTIES:	The Crown George Jouni
FILE NUMBER(S):	06/11/0834
SOLICITORS:	NSW DPP Paul K Bell and Co

SENTENCE

1 HIS HONOUR: George Jouni appears for sentence today on a number of offences. The first is an offence of larceny. When sentencing him for that offence he asks that I take into account two other offences, one of common assault, and one of possessing implements of housebreaking.

2 The second offence is one of take and drive conveyance. The third offence is assault occasioning actual bodily harm, and there are two related matters of driving whilst suspended and negligent driving.

3 All of these offences arose out of the events of 21 April 2006. On that day the offender was in the Grove Hotel at 236 Kingsgrove Road, Kingsgrove. Whether deliberately or accidentally, he found himself in an office area behind the bar. There was a sum of money there, in fact a significant sum of money, $27,430.

4 He put that in his backpack and was walking back into the public area when he came across two employees of the hotel. He told them that he was looking for the toilet, so one of the employees directed him in that direction. But instead of going that way, the offender headed out the door.

5 One of the employees, this was a Mr Shepherd, pursued him. As he did so, the offender said, “Do you want me to pop you?” This is the common assault on the form 1. Mr Shepherd paused and considered his position, but decided to continue pursuing the offender.

6 At about this time a Mr Gregory Passos was driving past. He was the person who became the victim of the offence of assault occasioning actual bodily harm, and the taking of his car was the subject of the offence of taking and driving a conveyance.

7 Mr Passos saw that Mr Shepherd, whom he recognised, was chasing the offender, so he stopped his car ahead of them. The offender ran to the passenger side of Mr Passos’s car and tried to get in. It was locked, so he went around to the other side, the driver’s side and brushed past Mr Passos who had already got out of the car. Mr Passos tried to stop the offender, but was unsuccessful. The offender succeeded in getting into the car and driving away.

8 Mr Passos, in order to prevent his car being stolen, naturally and justifiably, although riskily, dived through the open driver’s window and grabbed the offender’s head. The offender told him to let go and said that he would give him thousands of dollars if he let him go. Mr Passos demanded that the offender stop the vehicle. Mr Jouni, the offender, did not do so. Instead he drove in a manner which significantly risked Mr Passos’s safety. He swerved across the road in an attempt to loosen Mr Passos’s hold of him. Mr Passos’s legs were hanging outside the car.

9 Quite justifiably, in order to prevent himself being injured by the offender’s dangerous conduct, he struck the offender with his elbow in an attempt to get him to stop the car. He managed to turn the ignition off and the vehicle slowed down. The offender kicked out at him to get out of his hold, but Mr Passos managed to open the driver’s door of the car with his left hand, and dragged the offender from the vehicle. He was then restrained until police arrived.

10 Mr Passos in his statement that was tendered before me said that he believed that the car driven by the offender was travelling at about eighty kilometres an hour. That may be a slight exaggeration, but it certainly would have felt like that to Mr Passos, hanging as he was onto the offender whilst he was partially in and partially out of the car.

11 During the struggle the offender apparently bit Mr Passos, because Mr Passos suffered two bite marks to his right elbow. Or, it may be, that they occurred when Mr Passos was attempting to dissuade the offender from continuing to drive whilst he was partially in and partially out of the car.

12 Police eventually arrived and discovered the stolen money in the backpack. It was thus recovered. They also found items that the offender admitted today were housebreaking implements. That is the second of the offences on the form 1.

13 The offender’s licence was suspended for fine default at the time he drove Mr Passos’s vehicle, and so his driving whilst suspended, and in the manner he did, form the basis of the related matters for which he is also to be sentenced today.

14 The offender has been in custody since he was arrested on the day of the offence.

15 The offender has, or had, a significant problem with drugs and gambling. He says that that is what motivated him to commit these offences. He stole the money because he needed money for drugs and gambling. And he committed all the other offences in an attempt to avoid being caught.

16 It is noteworthy that these offences were all committed whilst the offender was on two forms of conditional liberty. He was on a section 9 bond, and on bail for a number of offences at the time that he committed these offences.

17 It is instructive to look at the offender’s criminal history. As Mr Roth accurately points out this is not a case where the offender has a lengthy and regular criminal history. If I ignore the driving matters for the moment, what appears is that the offender committed offences in the late 90s, but then there was nothing until 2005. The explanation for the offender commencing to commit these offences in 2005 seems to be related to his growing problems with drugs.

18 The offender apparently has used drugs for a number of years, but it was not until he commenced a relationship with a heavy drug user, and suffered an assault in which his jaw was broken, that the offender’s drug use escalated to the extent that it became a significant problem for him.

19 In the past the offender has been a productive member of society. He is a panel beater, and has successfully conducted a panel beating business in the past. All of that ended, of course, when the offender began taking drugs.

20 It has to be said that the offender’s traffic history is something which no-one would envy. The offender explains that to various people as saying that he needed to transport cars as part of his panel beating business and could not afford trade plates. I find that an explanation which is most unconvincing, given the type and nature of the offender’s traffic history. Certainly some of them appear to be related to his work as a panel beater, such as driving an uninsured motor vehicle, or driving with number plates calculated to deceive, but many of the others are simply the offender failing to recognise that he needs to comply with the obligations of a road user.

21 The offender was born in Australia to parents of Lebanese origin. He has the support of his family, despite his present predicament. They will welcome him back into the family home on one condition, and that is the quite understandable condition that the offender will relinquish his relationship with the previous partner, the woman whom I mentioned had a significant drug problem.

22 These were all serious offences. The offender was prepared to profit through his illegal conduct to a significant extent, preferring to steal rather than to either obtain money in a lawful way, or perhaps more obviously, to do something about his addictions to both drugs and gambling.

23 Both the crown and Mr Roth have referred me to parts of the decision in R v Henry (1999) 46 NSWLR 346. One thing that Henry speaks about is the importance of personal choice. For that reason Wood CJ at CL talks about the situation where a person’s addiction to drugs does not come about of their own choosing. This is not, however, such a case.

24 True it is that the offender was in a relationship with a woman who used drugs, and suffered from an assault upon him. But his decision to commence using various types of drugs, and to then escalate the level of use, was always the offender’s. It may be that the offender was in fact under the influence of drugs at the time he committed these offences, but given his motivation, it is unlikely that the offender would have acted in any different way had he not recently used drugs.

25 The offender recognised his guilt from an early opportunity and pleaded guilty. I will discount the sentence I would otherwise have imposed therefore by twenty-five per cent to reflect the utilitarian value of the plea.

26 The offender has expressed remorse to a number of people, although, it has to be noted, he did not give evidence to that effect in court today. Nevertheless, the crown did not object to material being put before me by way of affidavit. This is a most unusual way of putting material before a judge. The offender was not cross-examined about any aspect of the material put forward by way of mitigation in the affidavit. But it could not be said that that information carries the same impact as if the offender had himself entered the witness box and used his own words to describe how he felt about these matters.

27 It is clear that the material in the affidavit was prepared by a lawyer. Although the offender signed the affidavit. I am reading lawyer’s words rather than what the offender would have said if he was in the witness box himself. Despite those matters, I will accept that the offender is remorseful for what he has done.

28 He is particularly concerned about the impact of his wrongdoing on his family, and perhaps to a lesser extent concerned with the fact that he risked the life of Mr Passos, the man whose car he was in the process of stealing.

29 I am unable to determine whether this was an offence which was planned or not. I am not satisfied that it is an aggravating feature that the offence was planned, but nor am I satisfied that it is a mitigating feature that it was not. If the offender did find himself away from the public areas of the pub he was remarkably lucky in that he managed to chance upon an office area with a large sum of money in it.

30 I am unable to find that the offender has good prospects of rehabilitation. The crown referred me to material in the Pre-Sentence Report which indicated that the offender has thus far, whilst in the community, done little to address his drug addiction. In circumstances such as these where the offender’s wrongdoing is closely related to his addiction to drugs, much will depend on his attitude once he is released from custody. As matters presently stand I cannot say that he has good prospects of rehabilitation and is unlikely to re-offend.

31 I have found special circumstances. The offender has learning difficulties, a low IQ, and this will be his first time in custody, but the effective non-parole period I will shortly announce is, I consider, the lowest which properly reflects the objective gravity of the offender’s conduct. I will impose individual sentences for the various offences, and it will be made clear that I have allowed some level of accumulation and some level of concurrence in order, as a matter of totality to, reflect the overall appropriate sentence in view of the objective and subjective circumstances.

32 For the offence of larceny, taking into account the matters on the form 1, the offender is sentenced to imprisonment. I set a non-parole period of one year to commence on 21 April 2006, and a head sentence of two years.

33 For the offender of taking and driving a conveyance, the offender is sentenced to imprisonment. I set a non-parole period of one year to commence on 21 October 2006 and to expire on 20 October 2007. I set a head sentence of two years for that offence as well.

34 For the offence of assault occasioning actual bodily harm the offender is sentenced to imprisonment. I set a non-parole period of one year to commence on 21 April 2007. The non-parole period will expire on 20 April 2008 on which day the offender is to be released to parole. I set a head sentence for that matter of three years.

35 For the offence of driving whilst suspended, I set a fixed term of imprisonment of six months to date from 21 April 2006, and he is disqualified from driving for twelve months from 21 April 2006.

36 For the offence of negligent driving, he is disqualified from driving for two years from 21 April 2007.

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