R v Habkouk and Clemas
[2013] VCC 1256
•12 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00989
CR-13-01214
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GUY HABKOUK DARRYN CLEMAS |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 September 2013 | |
DATE OF SENTENCE: | 12 September 2013 | |
CASE MAY BE CITED AS: | R v Habkouk and Clemas | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1256 | |
REASONS FOR SENTENCE
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Subject: Sentencing – Conspiracy to Defraud
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr. Pickering | OPP |
| For the Accused Habkouk For the Accused Clemas | Mr Farrington Ms Lamovie |
HIS HONOUR:
1 Guy Habkouk and Darryn James Clemas you have both pleaded guilty to a charge of conspiracy to defraud between 28 July 2012 and 16 October 2012.
2 The prosecutor, Mr Pickering, opened the circumstances of the offending by reading from a written ‘Summary of Prosecution Opening’ which was tendered.
3 In short the conspiracy involved you stealing mail from victims letter boxes or from mailrooms of victim’s residences, using the mail to obtain personal details of the victims to facilitate online credit applications as well as stealing new or replacement credit cards which you then used fraudulently.
4 The summary detailed fraud concerning 12 victims. The total sum of money actually obtained was just over $78,000. Attempts were made to obtain an additional total sum of just under $5,700. Concerning one victim, the sum of $130,000 was moved between the victim’s home loan account and credit card account. Of course the extent of the conspiracy cannot be captured by reference to monetary sums alone. You were arrested in a motel room occupied by both of you. It had been set up as an office with computers and other electronic equipment. The room contained a large quantity of unopened mail to be used in furtherance of the conspiracy. Equipment to facilitate the mail thefts was also located. Subsequent investigations revealed CCTV footage of your activities removing mail from 3 residential blocks in La Trobe street, Melbourne providing source material for future potential victims.
5 Accordingly, in pursuit of the conspiracy you engaged in a relatively sophisticated scheme over about 2 ½ months involving many transactions netting a relatively substantial total sum. The particular victims seem to have been randomly and opportunistically selected.
6 Each of you declined to answer questions when interviewed.
7 You both have prior criminal histories.
8 Mr Habkouk, you were sentenced at the Melbourne Magistrates Court to 3 months imprisonment on 17 July 2012 for, what I was told was, similar dishonesty offending. You had been in pre-sentence detention for 117 days and so the sentence was reckoned as served. In addition you were released on a Community Corrections Order, which you have now breached. You have additional prior matters for dishonesty in 2012 and 2009.
9 Mr Clemas, on 17 August 2012, during the currency of the conspiracy, you were fined and placed on a probation bond in a New South Wales local court for what I was told was similar offending but only reaching the preparatory stage. Accordingly, the current offending would be in breach of your probation bond. You were also placed on a probation bond in New South Wales in June 2012 and convicted and fined for other dishonesty offending in 2011. You have outstanding matters in New South Wales and your counsel said that the current offending occurred whilst on bail.
10 Mr Farrnington appeared for you, Mr Habkouk. He provided a written document headed ‘Outline of Submissions on Behalf of Guy Habkouk’. I will attach this to Exhibit 1 on your plea which consisted of a table and attached materials.
11 It was common ground that I should sentence you on the basis that you pleaded guilty at the first reasonable opportunity. You originally faced in excess of 100 charges. Time was required to agree upon the factual basis and relevant charge on which you were to be sentenced. You must benefit from your plea. It saves time, expense and the need for witnesses to give evidence. It is an acceptance of responsibility for your offending. I also accept that it reflects remorse.
12 Mr Farrington outlined some of your personal background. You are 25 years old and were raised and educated in NSW. Your mother died when you were 18 and you were then looked after by your father and his mother. You are a licensed carpenter and have essentially worked as a subcontractor for an uncle before coming to Victoria at the beginning of 2012. You have a 4 year old child who lives with your father. Your former partner, from whom you were separated but nevertheless remained close, died from breast cancer last December.
13 I was told that the motivation for the offending was to feed a gambling habit and perhaps more significantly a drug habit. Your counsel said you began smoking marijuana aged 16 and began smoking ice aged 18. I was told that about a week after your release from prison on 17 July 2012 your grandmother died. You went to New South Wales and then returned to Victoria as required being subject to the CCO previously mentioned. It was in this setting that you began using "vast quantities of ice’". You claimed that the offending period is a blur. As I followed, you were in a hopeless spiral and have little recollection of your offending.
14 Mr Pickering was critical of this chronology. He focused on the unlikelihood of you returning from your grandmother’s funeral and so soon engaging in the conduct which is the subject of the conspiracy, to feed your rapidly developing drug addiction: in short, release on 17 July, your grandmother’s death and funeral within a week and then the beginning of the offending within about 4 days due to a drug addiction. Mr Pickering was also critical of the absence of any explanation of how it was that you and Mr Clemas became engaged together in the conspiracy.
15 It is not easy for me to identify the precise course of events relating to your release from prison, your grandmother’s death and funeral and your increased drug use leading to the conspiracy.
16 Indeed concerning both of you, Mr Pickering’s criticisms of the lack of detail concerning the chronology of events surrounding the making of the agreement, the circumstances in which it came about and the absence of detailed evidence concerning the extent of your drug addictions at the time were well made, as I see it.
17 I am prepared to accept however, that the primary motivation for each of you offending was drug-related.
18 Mr Habkouk, Mr Pickering was also critical of the extent of remorse you claim. He focused on the contents of a letter you wrote to the court expressing remorse.
19 As I see it, the most important consideration is the extent to which remorse facilitates your rehabilitation prospects.
20 I accept that you are currently well motivated to rehabilitate. I accept that life at the MRC was difficult for you and that since being transferred to Port Phillip Prison you have made very considerable and highly commendable efforts to take advantage of rehabilitative courses and that you are well motivated to continue to seek support and help. The circumstances of your transfer were not the subject of evidence. This was a deliberate forensic decision. Drug testing has been negative. In short, as I see it, if you can remain drug free then your rehabilitative prospects will be greatly improved. However, experience suggests this will not be easy. A determination to take responsibility for your son, with the assistance of your family, will help you. You are fortunate to have family support. The letter from your aunt was impressive. You have the capacity to obtain good employment. The deaths of three people close to you since you turned 18 cannot have been easy. Your experiences in prison are likely to strongly deter you from conduct that would put you at risk of prison once released.
21 Ms Lamovie appeared for you, Mr Clemas. She provided a written ‘Outline of Submissions on Plea’ which I marked as an exhibit.
22 Contained within this document are background and biographical details which I will not repeat save to note that you are 48 years old, were born in New Zealand and came from a supportive family. Your father died 3 months ago whilst you were in custody. You gave evidence before me to provide evidence of remorse. I can understand the particular grief associated with losing a parent whilst in custody and the difficulty of explaining to your family that you were unable to attend the funeral because you were in prison.
23 Despite a limited education you have trained as a chef and have had good employment in this occupation. You have been a keen sportsman and have done volunteer athletics coaching. You were married and separated in about 2000 when your son was aged 5. You moved to Australia but returned to NZ to look after your son in 2005 when your wife was not coping. You returned to Australia in about 2008. You worked in the food industry and as a security guard but it seems began using drugs, namely ice or amphetamines, at about this time.
24 You told your counsel that your drug use increased at a time when you became depressed about not having the contact with your son that you wished to have. You told your counsel you had a breakdown or crisis and were homeless.
25 A letter from ‘We help Ourselves’, which was tendered, noted your admission into a residential drug program in New South Wales in August 2008. You remained as a resident for about a month and received support on discharge. You were thought to have "derived enormous benefit" from the program however it seems that you returned to drug use and that this was the motivation for the current offending.
26 As I noted just before beginning these sentencing remarks, the chronology contained in your counsel’s written submissions does not correspond with the drug rehabilitation letter. The best that I can make of the material and submissions is that you relapsed into drug use some time after completing the ‘We Help Ourselves’ program, it seems in the setting of your inability to obtain sufficient access to your son.
27 You are currently at the MRC. You seem to be drug free and are engaged in work and have undertaken courses to assist with your rehabilitation.
28 Like Mr Habkouk you must benefit from your plea of guilty. I accept the submission that I should treat your plea as made at the earliest opportunity, given the concession that you were entitled to and needed proper legal advice before you could be expected to plead. Of course, this plea saves time, expense and the need for witnesses to give evidence. It acknowledges responsibility for your offending. In addition you gave evidence which I accept as reflective of remorse and I accept that this was a component of your plea. In giving evidence you exposed yourself to cross-examination and challenge although as it turned out no questions were asked of you by the prosecutor.
29 Your twin brother attended court to support you. A former employer wrote a letter commending you, stating that he thought you worthy of a "second chance" and pledging his support when you are released.
30 It was common ground that, despite some differences between each of you, I would be entitled to sentence you both to the same term. Indeed, this seems to be the most appropriate course.
31 The prosecution submitted that you should each be sentenced to between 4 and 5 years imprisonment with a non-parole period of between 3 and 4 years.
32 Reading these figures respectively, a differential of between 20 and 25 percent between the sentence and non-parole period would result. Such a differential would require explanation. It might reflect your prior histories, although I need to remember that your dishonesty prior history, Mr Habkouk, is confined to 2012 with the earlier matter in 2009. That matter in 2009 seems to have been imposed just after your 21st birthday. Mr Clemas, your dishonesty prior history, is confined to 2011 and 2012. The limited differential may also reflect the fact that the current offending occurred in breach of supervisory orders. However, Mr Habkouk, you are still relatively young and have only been sentenced to immediate prison once previously and that was for 3 months when you had been on remand for 117 days. Mr Clemas, you have never previously been imprisoned.
33 Although in each of your cases I need to be cautious about your rehabilitative prospects, particularly given that I accept the drug motivation behind your offending, in each of your cases if you can avoid drugs your prospects should be good. You both have support available on release. You both are drug free and well-engaged with prison support. You are both well motivated to avoid drugs and offending. On any view, you have been in prison for a substantial period and each of your counsel concede more time in prison must be served. Time spent in prison seems to be having a deterrent effect and has directed each of you towards rehabilitative pursuits. This is not uncommon for drug users experiencing their first or first lengthy period in custody. In my view, you should benefit for this and be encouraged to focus on rehabilitation. This serves both your and the community’s interests. I think a greater differential between the sentence and non-parole period than suggested by the prosecution in both your cases is appropriate. Both your counsel argued that a greater than usual differential between the sentence and non-parole period should be imposed in each case.
34 The first step, however, is to fix the appropriate sentence which must reflect all the factors positive and negative as part of an intuitive synthesis. Both your counsel submitted that the prosecution range was too high.
35 There is little guidance to be derived from sentencing statistics or comparative cases.
36 General deterrence is very important. Specific deterrence remains highly relevant as do the other sentencing considerations identified in the Sentencing Act. I need to keep in mind the fact of multiple victims, the course of conduct and how it ceased and the impact on commercial confidence.
37 In my judgement, the upper end of the prosecution range is excessive.
38 Each of you will be convicted and sentenced to 3 years and 6 months imprisonment on the charge of conspiracy.
39 I fix 2 years as the period each of you must serve before being eligible for release on parole.
40 Each of you has spent 331 days in pre-sentence detention. This is to be reckoned as time already served on the sentence I have imposed.
41 Had you not pleaded guilty I expect I would have sentenced each of you to about 5 years imprisonment with a non-parole period of at about 3 ½ years.
42 I have signed the Disposal and Forfeiture Orders.
43 Is there anything that needs correcting that counsel can identify?
44 COUNSEL: No, Your Honour.
45 HIS HONOUR: Very well, thanks very much.
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