R v Nchouki

[2022] ACTSC 342

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Nchouki

Citation:

[2022] ACTSC 342

Hearing Date:

2 December 2022

DecisionDate:

7 December 2022

Before:

Mossop J

Decision:

See [45]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – using a carriage service to menace, harass or offend – offender reckless as to whether statements would be brought to attention of police officers subject of the statements – offending in mid‑range of objective seriousness – prospects of rehabilitation are modest or guarded – custodial sentence required – to be released on a recognizance release order after serving three months in custody

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes Act 1914 (Cth), s 19

Criminal Code Act 1995 (Cth), s 474.17(1)

Parties:

The Queen ( Crown)

Mohammed Nchouki ( Offender)

Representation:

Counsel

B Morrisroe ( Crown)

S Whybrow SC ( Offender)

Solicitors

ACT Director of Public Prosecutions ( Crown)

Aulich Criminal Law ( Offender)

File Number:

SCC 108 of 2022

MOSSOP J:

Introduction

1․On 2 September 2022 the offender, Mohammed Nchouki, pleaded guilty to one count of using a carriage service in way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth).

2․The maximum penalty at the time of the offending was three years’ imprisonment.

Facts

3․The facts are agreed and are in summary as follows.

4․The complainant in the matter is a police officer, Officer A. On 13 December 2020 the offender was arrested by Officer A and another police officer, Officer B, in relation to a number of charges. On 14 December 2020 the relevant charge sheets, bail documents and statement of facts were disclosed to the offender’s solicitors. The statement of facts outlined the case against the offender, including the fact that a warrant had been issued allowing police to intercept incoming and outgoing calls and messages from a phone used by the offender.

5․The offender entered pleas of not guilty to those charges. A brief of evidence was disclosed to his solicitors on 10 February 2021. The material disclosed included audio recordings and transcripts of telephone conversations that related to the charges.

6․From prior to November 2020 until May 2021, there was a lawful warrant in force authorising the interception of telecommunications services used by the offender. Authorisation under such a warrant lasts 90 days and in order to continue lawful interception of the offender’s telecommunications, further warrants were sought and issued on 3 February 2021 and 28 April 2021.

7․On 23 May 2021 the offender spoke with Jomal Nchouki, his younger brother, on the telephone. At the time of that conversation, the offender was aware that the police might be intercepting and monitoring his telephone calls.

8․During that conversation the offender made threats of sexual violence directed at the Officer A’s wife, he made slurs about the police officer’s sexuality and sexual behaviour, including accusing him of paedophilia. He accused him of beating his wife. He used sexually explicit language about him in a derogatory way. He recorded a threat of, at least, grievous violence directed towards the officer. While a complete understanding of the language used is necessary to gain a full impression of the violence, menace and hostility displayed by the language, it is not appropriate to set out the actual language used in these reasons as it may give it a prominence that it does not deserve.

9․As of at least the disclosure of the brief of evidence on 10 February 2021 the offender was aware that police had been intercepting his telephone calls and that Officer A and Officer B were involved in that interception.

10․As of May 2021 the offender was aware that members of the Australian Federal Police (AFP) were probably still intercepting and listening to his telephone calls and if this was the case, the contents of such calls would likely be brought to the attention of Officer A.

11․Members of the AFP, pursuant to the interception warrant issued on 28 April 2021, did intercept and did listen to the calls and did bring them to the attention of Officer A, who did listen to them.

12․The comments made in the course of the telephone calls were menacing, harassing and offensive.

13․Both parties approached the operation of s 474.17(1)(b) on the basis that it described a circumstance, and hence, the default fault element was recklessness. In those circumstances, it is not necessary to determine whether recklessness, as to whether the conversation would be heard by Officer A, could alternatively be incorporated into the determination of whether the manner of using the communication was menacing, harassing or offensive.

Objective seriousness

14․The nature of the offending is described above.

15․Making remarks as he did to his brother was not, of itself, an offence because his brother was not offended, menaced or harassed and the threshold in s 474.17(1)(b) was not met. The offensive, menacing or harassing nature of the conduct arose because of the risk known to the offender that the comments would be heard by police.

16․The remarks were directed at a police officer. They were not, however, made directly. They were done with the intention, if it was heard by the police officer, of menacing or offending the officer. While in one sense the status of the intended recipient as a police officer was someone less vulnerable than other members of the community, it was a direct challenge to the lawful authority of the officer to do his job. I would place the offending in the mid-range of objective seriousness for this offence.

Subjective circumstances

17․The offender is currently 42 years old.

18․His subjective circumstances are set out in a pre-sentence report dated 28 November 2022.

19․The offender was born in Germany. He and his family relocated to Australia after fleeing from Lebanon in 1982. The offender had a positive upbringing despite his family’s limited finances and low economic status.

20․The offender has a positive relationship with his parents and five siblings. He and his wife provide financial support for his parents and eldest brother by allowing them to reside in one of their properties, assisting with medical expenses and transporting them between appointments. The offender reported a large family unit where they regularly associate and support each other.

21․The offender has been in a relationship with his wife for approximately 20 years and has been married for 10 years. That relationship is a positive one.

22․The offender and his wife have three children, currently aged eight years, six years and six months old. He reported that he shares close relationships with his children and is actively involved in their lives. 

23․The offender resides in a privately owned property with his wife and children. They have resided at this address for approximately five years. He intends to return there when released from custody.

24․The offender left school in Year 10 to enter the workforce. He had difficulties at school as a result of bullying and was also suspended on multiple occasions for exhibiting generally disruptive behaviours. Following school, he completed a diploma of building, certificate III in carpentry and certificate III in construction. He secured class B and C builder’s licenses and also completed various short-term courses.

25․Since 2007 he has operated his own construction company in the Australian Capital Territory (ACT). At times he has employed up to 50 employees but now has 11. His company has continued operating while he has been incarcerated but it has been difficult. His wife has taken on all responsibility for the company in addition to running their household and caring for their three children.

26․The offender reported to the author of the pre-sentence report spending his leisure time with his children, swimming in their pool and going motorcycle riding. He reported that he is engaged with his son’s extracurricular activities. He reported that he only associates with his family and two prosocial friends he has known since childhood. When in the community he claimed that he does not associate with anyone involved in criminal activity.

27․The author of the pre-sentence report identified that the offender was a former president of a chapter of an ACT outlaw motorcycle gang. He reported that he ceased contact with this club approximately five years ago and is no longer an active member.

28․The offender denied a history of problematic alcohol consumption. However, he had a history of commencing cocaine and amphetamine (speed) use at 22 years old. He was a habitual user of both substances until 2014 when he was prescribed amphetamine‑based medication to manage his attention deficit hyperactivity disorder (ADHD). He claimed to have been abstinent up until more recently although has given inconsistent reports as to whether that was until 2020, 2021 or 2022.

29․The offender claimed that he had used only “a couple points” of speed approximately twice per week. He claimed he used speed to replace dextroamphetamine tablets which he had previously been prescribed.

30․He also reported using cannabis between the ages of 14 and 19. Since his intensive correction order (ICO) commenced in February 2022, the offender admitted to using cannabis on two occasions.

31․Test results for oral fluid drug screens in August and September 2022 were positive for methamphetamine and amphetamine. Test results in September 2022 were also positive for cocaine and MDMA.

32․During the term of his ICO the offender failed to engage in any interventions to address his illicit substance use despite multiple requests from ACT Corrective Services. Although at one point he wished to complete an inpatient program at a private hospital, that is no longer the case. He claimed that he will be able to cease illicit substance use when he has resumed his amphetamine-based medication for ADHD.

33․The offender advised he was formally diagnosed with ADHD at 28 years old. He was also diagnosed with post-traumatic stress disorder (PTSD) approximately 12 months ago. He described his mental health in generally positive terms but noted he felt immense pressure in the community in relation to running his company and financially supporting his family. He also experienced stress due to his wife’s ongoing health issues following the birth of their third child. The offender advised he was prescribed anti‑depressant medication in custody that he intended to continue in the community when released.

34․The pre-sentence report author stated that the offender has multiple protective factors including a supportive family unit, stable accommodation and employment. His risk factors were identified as his lengthy history of illicit substance use, mental health and association with multiple anti-social peers. It is reported that his drug use has contributed to previous offences and has led to the cancellation of his ICO. Given this correlation, it is reported that the offender’s risk of reoffending and the likelihood of him breaching any subsequent ICOs, would be reduced if he engages in sufficient interventions to address his illicit substance use. Given the offender’s recent non‑compliance with his ICO, the report indicates that it is likely he will return to illicit substance use and continue to breach any further ICOs if he does not engage in sufficient interventions to address his primary risk factors when released from custody.

35․The author of the pre-sentence report assessed the offender as suitable for good behaviour order with a medium level of intervention. He was assessed as suitable for a community service work condition. He was also assessed as suitable for an ICO with the certain additional conditions. His lack of compliance with the recent ICO and the reasons for it were noted.

Criminal history

36․The offender has a criminal history in the ACT commencing in 2000. The offending prior to 2017 primarily consists of driving-related offences. From 2017 the offending includes drug trafficking and possession offences, weapons offences, conspiracy to pervert the course of justice and further driving related offences. It was the conspiracy charge which was the subject of a 12‑month ICO which led to his current imprisonment when it was cancelled. That sentence will end on 31 January 2023.

Plea of guilty

37․The offender pleaded guilty in the Supreme Court following criminal case conferencing but prior to the allocation of a trial date. The history of the matter was complicated by a contested committal at which two other charges were dismissed. The utilitarian value of the plea warrants a reduction of approximately 17 percent.

Time in custody

38․The offender has spent 30 days in custody in relation to this offending. This is appropriately accommodated by backdating the sentence that is imposed.

Consideration

39․The predominant sentencing considerations in relation to this offence and this offender are denunciation and general and specific deterrence. The offender is now 42 years old. He is therefore old enough to know better. He has a significant criminal history yet that failed to deter him from the conduct in question. He has demonstrated no remorse or acceptance of the wrongfulness of the conduct. Rather, the plea appears to be a totally pragmatic one, not reflective of remorse, contrition or a desire to change.

40․So far as general deterrence is concerned, it is significant both in relation to menacing, harassing or offensive conduct using telecommunications services generally but also in relation to menacing, harassing and offensive conduct directed to police officers who are lawfully doing their duty.

41․The picture of the offender’s subjective circumstances arising from the evidence in the pre‑sentence report is one of loyalty and diligence in relation to his family, hard work and a degree of success in his business. However, that positive picture is significantly qualified by his criminal history, past significant association with an outlaw motorcycle gang, his history of drug use up until the current time and his capacity to engage in menacing conduct such as is illustrated by the offending in this case. While loyalty to family is, in some circumstances, a virtue, when it is at the price of hostility to lawful authority, then it is a vice.

42․I have treated the statements made about current associates and intentions in relation to drug use made to the author of the pre‑sentence report with considerable caution. In those circumstances, the prospects of rehabilitation must be regarded as modest or guarded having regard to his criminal history, ongoing drug use and attitude to authority. Unfortunately, his commitment to family is, as a result of other aspects of his offending, not indicative of being on track towards lawful conduct.

43․These factors indicate that only a term of imprisonment is appropriate. I do not accept the offender’s submission of the contrary. A sentence of imprisonment will continue to have a significant effect on his family, particularly his wife who has had to bear the burden of consequences of his unlawful conduct. In my view, only a sentence of imprisonment that involves a period of full-time detention will appropriately meet the purposes of sentencing. The submission made on behalf of the offender was that any sentence should be only for the time already served. The submission by the prosecution was that a term of imprisonment was appropriate but that it was a matter for the court as to how it was served. In my view, having regard to the lack of any entitlement to leniency, the lack of remorse and an attitude to authority demonstrated by the offending, a disposition which involved no additional time in custody would inadequately reflect the purposes of sentencing. I do, however, accept the submission that the sentence should be moderated by the fact that the offender did not know that the statements that he made would be brought to the attention of Officer A, but was only reckless as to that fact. Had the statements been made directly or in circumstances where it was known that they would be communicated to Officer A, a significantly greater sentence would be appropriate.

44․The starting point is a sentence of six months imprisonment, reduced to five months on account of the plea of guilty. A recognizance release order with a self-surety of $100 will be made so as to allow his release after a period of three months. He will be required to be of good behaviour for a period of two years. The sentence will be backdated to take into account the period already served attributable to this offence.

Orders

45․The order of the Court is:

1.On the charge of using a carriage service in a way that was menacing, harassing or offensive (CC2021/5913) the offender is convicted and sentenced to 5 months’ imprisonment commencing on 2 January 2023 and ending on 1 June 2023 with a recognizance release order permitting his release after serving three months’ imprisonment with security of $100, without surety, and on the condition that he be of good behaviour for a period of two years from the date of his release.

7 December 2022

46․When I pronounced my orders on 2 December 2022 counsel for the offender sought an opportunity to consider whether the sentence was consistent with s 19 of the Crimes Act 1914 (Cth) given the power to reinstate an ICO under the Crimes (Sentence Administration) Act 2005 (ACT).

47․I vacated the orders that I pronounced in order to allow the parties to investigate the issue. The joint submission of the parties is that the order that I pronounced was, in the offender’s circumstances, consistent with s 19.

48․I therefore now make the order previously pronounced.

I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 21 December 2022