Director of Public Prosecutions v Afran

[2019] VCC 590

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02421
CR-17-02290

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARVEN AFRAN
JIMMY GABRA  

‑‑‑

JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2019
DATE OF SENTENCE:	1 May 2019
CASE MAY BE CITED AS:	DPP v Afran & Anor
MEDIUM NEUTRAL CITATION:	[2019] VCC 590

REASONS FOR SENTENCE
‑‑‑

Subject:  CRIMINAL LAW SENTENCE

Catchwords:  Armed Robbery – Attempted armed robbery – Robbery – Pleas of guilty – Serving other sentences for other sentences – Totality – term of imprisonment – Non-parole period. 

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. McCulloch	Office of Public Prosecutions
For Accused Afran	Mr A. Jackson	Valos Black
For Accused Gabra	Mr S. Cooper	Doogue and George

HIS HONOUR:

1Marven Afran and Jimmy Gabra, on 25 February 2019 you were both arraigned on indictment C1610649.1 and each pleaded guilty to one charge of theft of motor vehicle, one charge of attempted armed robbery, and one charge of robbery.  The maximum penalties for these offences are 10 years’ imprisonment, 20 years' imprisonment and 15 years' imprisonment respectively.   

2The circumstances of your offending are set out in the prosecution opening which was Exhibit A on your pleas.  Exhibit A forms part of the reasons for this sentence.

3In brief, on 18 April 2016 you were both in possession of a stolen Holden Evoke sedan which had been stolen on 16 January 2016 from the driveway of Mr Fazzil Noureddine in Hadfield.  The basis for charge one, theft of motor vehicle, is that you both had assumed rights of ownership over the car and intended to permanently deprive the owner of it.

4Police observed you both in the car at around 6:55 pm after coming out of a kebab shop on Ballarat Road.  At about 10:00 pm, police then observed the stolen Evoke sedan in a vacant block in Sunshine North.  You were both in the car.  Police from the Special Operations Group attempted to arrest you both, but you were able to evade arrest by driving away from the scene.

5Later that evening at about 10:30 pm, you were both in the stolen Evoke.  You, Mr Gabra were driving, you, Mr Afran were in the passenger seat.  You drove towards a car being driven by the victim, Maddison Keogh with the victim, Patrick Tilley in the passenger seat.  You flashed your headlights and activated red and blue flashing lights on the dashboard.

6The victim Keogh pulled over.  You, Mr Afran, got out of the Evoke and approached the driver's side door of the victim's car carrying a firearm.  When the victim, Ms Keogh saw the weapon, she put her car into reverse and accelerated, causing the car to collide with a power pole.

7Ms Keogh then got out of the car and ran to a nearby house.  The victim, Tilley remained in the car and locked the doors.  You, Mr Afran pointed the weapon at Mr Tilley and said, 'I am not going to hurt you', and hit the barrel against the car window.  Mr Tilley then got out of the car and ran.

8Both of you then attempted to steal Ms Keogh's car, but were unable to because she had taken the keys with her.  You returned to the Evoke and drove away.  This is the basis for charge two, attempted armed robbery.

9At about 11.17 pm that evening, you were driving the Evoke sedan in South Yarra.  You pulled up next to a stationary Audi A3.  Leon Anezakis was in the driver’s seat of this car and Ruby Dicker was in the passenger seat.

10Immediately after pulling up, you Mr Afran got out of the Evoke and immediately opened the driver's side door of the Audi.  You said words along the lines of, 'Get the fuck out of the car.  We are taking your car'.  Anezakis refused and attempted to close the door.  You Mr Afran stopped him from doing this and after a struggle, he got out of the vehicle and ran to the nature strip.  During this time, the victim Dicker had already exited the Audi and ran to a nearby house.

11You both then drove away in the stolen Audi.

12On 19 April 2016 at around 9:00 pm, police identified you both in the stolen Audi in Deer Park.  You Mr Gabra were driving.  You stopped the Audi in a vacant block of land and police moved in to effect your arrest.

Victim Impact Statements

13I received victim impact statements from Patrick Tilley and Maddison Keogh and one from Ms Keogh's mother. The impact of your crimes upon your innocent victims is very significant.

14The psychological trauma and the lasting effects of being surprised and threatened with a firearm by violent offenders whilst going about one's lawful activities is well known.

15Maddison Keogh's victim impact statement commences:

'I implore you to ask yourself have you ever been so terrified you were about to be shot dead that you shielded your head by leaning into the foot well of your car and reversed with the accelerator to the floor unable to see where you are going nevertheless caring.  The only thing mattering in that moment being your survival.  I have.  I have also ran up to a stranger's door and begged for my life "You need to let me in there is a man with a gun about to kill me," are words that will never leave me'.

16The impact upon Ms Keogh's life has been severe.  She has developed severe anxiety.  This is not surprising given the terror you both subjected her to.  Her mother's statement expands upon the impact on her daughter.  Mr Tilley's life has also been severely impacted as a result of your crime.  Whilst I did not receive a victim impact statement from the victims of the robbery which forms the basis of charge 3 - no doubt they experienced the same terror as Ms Keogh and Mr Tilley did and the experience you subjected them to has surely left a psychological imprint upon them.

Objective circumstances of offending

17The crime of attempted armed robbery is the most serious offence before me.  This offence might be described as a carjacking with a firearm upon two unsuspecting individuals going about their daily lives.  As I have stated, the fear experienced at the moment you two appear pointing a firearm, is expressed in vivid detail by Ms Keogh.  The effects of such conduct are obvious.  They were obvious to you at the time you committed these crimes.  The very reason for producing a firearm in the circumstances you did, is to create terror in your victims so that they comply with your demands.

18This was a criminal rampage. It is clear from the reasons for sentence provided to me in the matters for which you are undergoing sentence, that your rampage extended beyond the offences before me. Such an episode of violence and lawlessness demands condign punishment.

Personal Circumstances – Jimmy Gabra

19Mr Gabra, you are 28 years old. At the time of the relevant offending you were 25 years old. Your personal circumstances are outlined in depth in the report of Jeffrey Cummins dated 13 March 2019. A detailed summary of your personal circumstances is also set out in the 'Reasons for Sentence' of Judge Punshon dated 12 December 2016 [2016] VCC 1940, as well as in the 'Reasons for Sentence' of Judge Gwynn dated 8 December 2017. I do not propose to replicate your personal circumstances in detail, but simply provide an overview.

20You were born in the Sudan to parents whose heritage was Egyptian and Syrian.  You are the youngest of three children.  Your family came to Australia when you were seven years old in 1997.  Your parents separated in Melbourne in 1998.  Both of your parents have a history of employment.  Neither of them have a history of mental health issues or involvement with the criminal justice system.  You report that you have a close relationship with your siblings.  Again, neither of your siblings have any criminal history. 

21You were educated to Year 10 and at age 16 completed a 12-month panel beating pre-apprenticeship at Sunshine Tech.  You then worked for the next five years with your brother who owned a cleaning business.

22Your employment with your brother ceased when you were 23 years old due to your dependency upon methyl-amphetamine. You also developed a gambling habit at around this age.

23Your criminal history commences with driving related offences and your failure to adhere to the Community Based Orders imposed resulting in appearances between 2011 and 2013.  You have a relevant prior appearance for drug matters, firearms related offences, dishonesty matters and driving offences for which you served a term of imprisonment.  You were sentenced to time served in this Court on 20 January 2016.

24You were remanded on the charges before me on 19 April 2016 and you have been in custody since that time.  You have been serving sentences for other charges and have no available pre-sentence detention in respect of the matters before me.

25On 12 December 2016 you were sentenced, together with Mr Afran and another, to an aggregate term of imprisonment of 28 months with a non-parole period of 16 months for aggravated burglary, committing an offence whilst on bail, theft and unlawful assault.  210 days were declared as pre-sentence detention.  These offences occurred in May 2015.  I was provided with the 'Reasons for Sentence' of Judge Punshon at your plea hearing.

26On 14 December 2016 you were sentenced to 339 days' imprisonment for contravening the CCO imposed in this Court in January 2016.  Pre-sentence detention of 237 days was declared.

27On 22 March 2017 you were sentenced on an appeal to this Court to 7 months imprisonment, 3 months of which was to be served concurrently with your other sentences and 28 days pre-sentence detention was declared.

28On 8 December 2017 you were sentenced by Judge Gwynn to 3 years and 8 months with a new non-parole period of 2 years and 6 months set.  Two years and eight months of the sentence was concurrent with sentences you were then undergoing.  I have been provided with Judge Gwynn's 'Reasons for Sentence'. The offences before Judge Gwynn of aggravated burglary, robbery and prohibited person in possession of a firearm occurred in March 2016.

29The effect of the sentences imposed subsequent to your offending on 18 April 2016 is that the total head sentence you are subject to will expire in January 2020. Your non-parole period has already expired.  As stated above you have no pre-sentence detention available for this matter.  These circumstances present an unusual synthesis of sentencing factors when totality is applied.

30A letter from you was tendered on your behalf at your Plea.  I accept the letter represents some evidence of your insight into the underlying problems which have led to serious offending, also some maturity and some remorse.  I note in previous hearings you have also supplied a similar letter.  I do not doubt that the years you have spent in custody have caused you to reflect and have had a positive effect on your development.

31Letters were also tendered from family members which indicated their ongoing support for you, some positive aspects of your nature, and positive changes you have made to your life.

32You stated to Mr Cummins that you did an intensive drug course at Port Philip Prison that 'really helped me understand more about my past and how I've allowed drugs to wreck my life'.

33The prison terms you have been serving do appear to have had a rehabilitative and positive effect upon you.  Physically you have achieved a much healthier weight than you were previously.  Whilst I must take into account the principle of totality, I am also sentencing you as an individual who has demonstrated a level of insight and rehabilitation whilst serving sentence in the period of delay between the commission of the offences and the present.

34Your counsel placed emphasis on the need to give full consideration to the principal of totality.  He highlighted that you have been sentenced for offending of a similar nature which occurred in the lead up to this offending.

35Totality is clearly a very significant factor in determining the appropriate sentence in your case as well as in Mr Afran's case.

Personal Circumstances – Marven Afran   

36Turning to your personal circumstances, Mr Afran.  You have had a report tendered upon your behalf, the report of Carla Ferrari dated 4 Aril 2019.  This report outlines your personal history in great detail.  I only propose to outline broadly your personal circumstances.  Your personal details are also set out in Judge Punshon's 'Reasons for Sentence' and the 'Reasons for Sentence' of Judge Taft dated 17 May 2018 [2018] VCC at [20]-[32], I have had regard to both of those reasons for sentence.

37You are 28 years old, you were born in in Iraq and are the second oldest of four children.

38You report that your family had a degree of affluence in Iraq, and that you were raised in a supportive environment.  You reported that you were kidnapped and held for ransom in Iraq when you were aged around 9 or 10.  I accept that you were subjected to very significant trauma during this terrifying episode in your life.  Your family immigrated to Australia in 2003 on a humanitarian visa.

39You indicate that you had difficulties fitting in at school and that you struggled on account of language difficulties.  At the age of 17 you established your own cleaning business which was successful for a period.

40You were introduced to drug use around the age of 15 by a partner.  This has subsequently been an ongoing issue for you – you have reported that you have been a consistent user of GHB and methyl-amphetamine for a period of over 10 years.

41The report of Carla Ferrari outlines that you have a significant history of trauma, not just from your childhood in Iraq, but also as a result of being the victim of an armed robbery in 2013 where you were shot in the face.  Ms Ferrari suggests that your drug use stems from attempts at self-managing the symptoms associated with your trauma and I accept this.

42Ms Ferrari opined that you have experienced severe PTSD throughout your life.  It was submitted on the basis of Ms Ferrari's findings that hardship in custody due to PTSD is a relevant sentencing factor and I accept that this is so.

43Ms Ferrari also noted your improved insight into your behaviours during the sentences you have been serving since the commission of the offences before me.  The letters tendered on your behalf, including the letter from you, support this conclusion.

44Your counsel relied upon what I will describe as belated remorse – I accept this to a degree.  He relied upon significant family support, your completion of programs whilst in prison, your PTSD, and your pleas in mitigation of sentence and I accept all of these matters.

45It was raised by your counsel that as a result of your offending, you will likely be deported to Iraq at the conclusion of your term of imprisonment.[1]  I accept this likelihood.  Your expectation of deportation (whilst it falls short of certainty) is a matter which will weigh upon you during your sentence, and I take this into account in mitigation.

[1]A Notice form the Department of Immigration and Border Protection was tendered on the Plea.

46Your counsel also emphasised the importance of the application of the principle of totality.  This principle has great significance in your case and in the case of Mr Gabra.

47Your criminal history is more extensive than Mr Gabra's.  It is set out in Judge Taft's sentence at paragraphs [20]-[32].

48You were charged with the offences of aggravated burglary, assault and theft on 18 July 2015 and were remanded in custody.  Those offences occurred in May 2015.  On 30 September 2015 you were sentenced to 6 months' imprisonment and 117 days PSD was declared for burglary and drug matters.  That sentence expired on 3 December 2015 and you were released from custody, on bail on the aggravated burglary and associated charges that were ultimately dealt with by Judge Punshon.  That bail was revoked when you were remanded on the matters before me in April 2016.

49You have remained in custody since 19 April 2016.

50

Judge Punshon sentenced you on 12 December 2016 to 28 months with a

non-parole period of 16 months and declared 211 days of pre-sentence detention.

51On 10 February 2017 you were sentenced to an aggregate sentence of six months' imprisonment due to contravening a CCO and the sentence was served concurrently.

52On 20 December 2017 you were sentenced to 4 months' imprisonment for burglary to be served concurrently.

53On 16 January 2018 you were sentenced to two months' imprisonment to be served concurrently for driving matters.

54On 17 May 2018 Judge Taft sentenced you for the offences of armed robbery, attempted aggravated burglary, being a prohibited person in possession of a firearm and committing an indictable offence whilst on bail.  He sentenced you to an aggregate term of three years and six months' imprisonment, to be served concurrently with other sentences.  He set a new non-parole period of two years and three months.

55You were sentenced again on 20 June 2018 to four months to be served concurrently for burglary and theft.

56These sentences expire on 21 October 2021.  You are currently eligible to apply for parole on 21 July 2020.  Like Mr Gabra, you have no pre-sentence detention available.

Pleas of Guilty

57

In each of your cases, your pleas to the charges were entered at a late

stage – being the date the trial was due to commence.  However, you have each pleaded guilty to a reduced indictment from that which you faced at trial.  I note that a similar course seems to have unfolded in the matters before Judge Punshon, and in your matter before Judge Gwynn, Mr Gabra.

58As noted during the plea hearing it is regrettable that the matters resolved at a point in time where the opportunity for significant concurrency has evaporated – posing a difficulty in arriving at sentences that reflect the criminality and all of the relevant sentencing factors.  That said, I regard your pleas as having greater value than the late stage of their entry would otherwise indicate.  I have taken your pleas to a negotiated resolution of what was a more serious constellation of charges at trial, as a significant matter in mitigation.

59Your pleas together with the other matters relied upon in support of each of you regarding your insight, family support and some remorse, lead me to a view that you each have prospects of rehabilitation.  I have a guarded view as to those prospects however.  Whilst there is a reasonable prospect of each of you finding purpose and remaining drug free upon release, one could never be confident, given the offending history of each of you, and you in particular, Mr Afran, of successful rehabilitation.  I accept that from your current standpoint, each of you have the best intentions and have expressed remorse and contrition - as stated in each of your letters to the Court - but it is all too little too late in the context of your histories and the unrelenting offending, despite some curial intervention over 2015 and 2016, to provide much confidence in your prospects.

Parity

60There is nothing to distinguish your roles in this offending, save to say that it was you, Mr Afran who brandished the firearm.  This distinction is not significant given you were both acting in concert.  There are relevant differences in your criminal histories, as I have noted.  There is also a difference in the number of unrelated matters for which you have been sentenced which I must consider when applying the parity principle.  You, Mr Afran committed these offences whilst on bail, whilst you Mr Gabra committed these offences whilst you were subject to a CCO.

Totality

61As already stated the principle of totality has clear application in each of your cases.  You have been in custody serving sentence since April 2016.  The offences for which you have been serving sentences are not dissimilar in their nature to those before me and were committed relatively proximate in time to these matters for the most part.  I must consider the sentence that would appropriately reflect your total criminality, if all matters had been dealt with at one time.  For those reasons the head sentence and non-parole periods have been substantially reduced.

62You have each been serving sentences in one form or another since you were remanded on this matter, a period now in excess of three years.  Mr Gabra your head sentence expires in early January next year.  You, Mr Afran have been in custody since July 2015, save for the period 3 December 2015 to 19 April 2016 during which you were on bail.  You are not eligible for parole until July 2020.

63It has not been clear to me, nor does it need to be, why these matters were not able to be resolved earlier, or why the trial date could not have been reached closer to the date of the offending.  I am quite sure that the delay in resolution is not due to any action or inaction on the part of either of your Counsel or current legal representatives, nor on the part of the Prosecution.  Whatever the reason, the fact remains that due to the expiry of a substantial portion of the sentences you are undergoing the application of the totality principle will necessarily result in the imposition of sentences in this matter that are significantly moderated from what they otherwise would be.  The same applies to the new non-parole periods that must be set.

64I have also had regard to the need for general deterrence and community denunciation of your crimes, the protection of the community and your prospects of rehabilitation.

Sentence

65I will impose an aggregate sentence in respect of each of you. I do so because the three charges on the indictment are part of a series of offences of the same or similar character.

66Mr Gabra, in respect of the three charges on the indictment you are sentenced to an aggregate term of 2 years and 6 months' imprisonment concurrent with the sentences you are now undergoing.  I set a non-parole period of 9 months from today's date.

67Pursuant to s.6AAA I declare that but for your pleas I would have sentenced you to be imprisoned for 3 years and 6 months with a non-parole period of 18 months.

68Pursuant to s.89 of the Road Safety Act I direct that your licence be cancelled and you be disqualified from obtaining another for a period of 12 months from today.

69Mr Afran, in respect of the three charges on the indictment you are sentenced to an aggregate term of 34 months, that is 2 years and 10 months to be served concurrently with sentences you are now undergoing.  I set a new non-parole period of 17 months from today's date.

70Pursuant to s.6AAA I declare that but for your pleas I would have sentenced you to be imprisoned for 4 years with a non-parole period of 2 years.

71Pursuant to s.89 of the Road Safety Act I direct that your licence be cancelled and you be disqualified from obtaining another for a period of twelve months from today.

72Are there any other orders I need to make?

73MR McCULLOCH:  No, Your Honour.

74MR JACKSON:  No, Your Honour

75HIS HONOUR:  Thank you.  You can take each of Mr Afran and Mr Gabra away now, please.

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