Director of Public Prosecutions v Ahmad
[2014] VCC 895
•4 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR -13-01017
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALI AHMAD |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 and 26 May 2014 |
| DATE OF SENTENCE: | 4 June 2014 |
| CASE MAY BE CITED AS: | DPP v Ahmad |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 895 |
REASONS FOR SENTENCE
---Subject: Criminal law – plea – sentence
Catchwords: Affray – trafficking – cause injury – possession – robbery – counterfeit currency – priors of significance – drug user – threat – youthful offender – serious offences
Legislation Cited: Sentencing Act 1991 - Drugs, Poisons and Controlled Substances Act 1981 - Crimes Act 1958 - Crimes (Currency) Act 1981 - Criminal Procedure Act 2009 - Firearms Act 1996 - Control of Weapons Act 2000 - Criminal Code Act 1995
Cases Cited: Ibbs [1987] 163 CLR 447, 452
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Paul Stefanovic | Mr G Taberner |
| For the Accused | Barnaby Johnston | Mr N Marcevski |
HIS HONOUR:
1Ali Ahmad, you pleaded guilty to the crimes in two indictments on 9 May of this year. The first of those indictments was a one charge indictment, No.C1208541.3, which was a charge of affray, an offence pursuant to common law, for which a penalty is proscribed by the Sentencing Act 1991 of five years gaol and/or 600 penalty points or units. At that time you were aged 21 and the crime occurred in South Morang on 21 April 2012.
2The second indictment is more serious, in the sense of it contains more serious and more numerous offences. It was a six charge indictment no. C12955862.1. By this time you were aged 21. The first charge was committed on 4 October 2012. This came about as a result of subsequent circumstances, which will be detailed herein, but on that particular day, you had trafficked $100 worth of methylamphetamine and subsequently you were found with trafficking accoutrements at your home, when your home was searched pursuant to warrant.
3This offence is very serious and an offence against s.71(AC) of the Drugs, Poisons and Controlled Substances Act 1981, for which the maximum penalty proscribed is 15 years.
4Emanating out of that sale, Mr Papasavas questioned the composition drug. He questioned whether it was in fact sugar and not methylamphetamine, and indeed subsequently threw it away, because that is what he thought it was. He then refused to pay you, as he could not pay you on that particular day. There were further conversations as a result. You met up with him and three others at a premises in Lalor, the purchaser's friend was with him, Mr Falzon. He gave you some money. You told Mr Papasavas that you in fact required him to pay interest.
5Though he initially did not want you to pay it, he said he would. You were at this time accompanied by three other unknown persons. You directed Falzon to drive with a friend and you drove Papasavas, in his car, to an outlying housing estate in Thomastown. What could have evolved in those circumstances is anyone's guess, but fortunately it did not develop any worse than the current charges. Yourself and one other, once you got to Thomastown, subsequently came to assault Mr Papasavas and you were - and have pleaded guilty to intentionally causing injury to him, which is an offence against s.18 of the Crimes Act 1958, the maximum penalty proscribed is ten years.
6The assault itself was not dramatic, in the terms that we often see here. That is, you punched him to the face, somewhere between five and ten times. There is no victim impact statement filed by the victim. I have seen the photographs, which were tendered, and clearly the injuries inflicted on him were not serious.
7Thereafter, under threat of him being required to pay, not only the interest, but for the costs of the three unknown persons who had accompanied you, you decamped with his car, that being a charge of robbery, committed on the same day. Robbery of, not only the car, but to the items in the car, such as his wallet, phone, et cetera. You, on parting, said to him, he owed you now about $1,000 for the cost of the attendance of the “unknowns”.
8The seriousness of the offence of robbery, which is a breach against s.75(a)(1) of the Crimes Act, is evidenced by the fact that the Parliament has proscribed as the maximum penalty for this offence, one of 15 years.
9Given the circumstances, Mr Papasavas and his friend went straight to the police. As a result thereof, you were identified. Your property was searched on 19 October, pursuant to warrant. A small amount of methylamphetamine was found, which makes up the circumstances of Charge 4, an offence under s.73 of the Drugs, Poisons and Controlled Substances Act, for which the maximum penalty proscribed is five years. Also found at your premises were three counterfeit notes, one $100 bill and two $50 bills, which are offences against s.59(1)(e) of the Crimes (Currency) Act 1981, which is a commonwealth provision, for which the maximum penalty proscribed is ten years.
10Perhaps the most concerning offence occurred thereafter. That is after you were, or your place had been searched, you placed a notice on Facebook, a more public notice one could not think of. You, in that notice, issue a threat to inflict injury upon Mr Papasavas, because you believed he had "ratted on you", so to speak. The threat was serious, widespread and of concern. Such threat involved you totally, as you expressed, understanding that this was a deliberate threat by you, irrespective of what may happen to you for same. The penalty proscribed for such threat is five years or 600 penalty units.
11There are associated summary matters to which you pleaded guilty, pursuant to s.145 of the Criminal Procedure Act 2009. These items which were found at your premises and ultimately on you, were firstly at your premises, a bullet, which is an offence against the Firearms Act 1996, an imitation sawn-off shotgun, an offence against the Control of Weapons Act 2000, and finally when you were apprehended on 22 October, you were in possession of a controlled weapon, being a knife, without a licence. Those offences carry respectively penalties of four years and/or 240 penalty units, two years and 240 penalty years, and the last item, summary Charge 13, a penalty of one year.
12As a result of the plea and the matters put by your counsel, Mr Johnston, I sought a report, pursuant to the provisions of the Sentencing Act 1991, from the Community Corrections bodies, as to whether a Community Corrections Order would be appropriate in your case.
13It is a positive report, albeit there is a comment about the reservations held by the writer, because two previous involvements with the Community Corrections bodies, in 2010 and 2011 have apparently been breached. I make the point that although I cannot disregard that, they are obviously not prior matters, but they are the reasons why there is some concern, however ultimately, there has been an acceptance and a determination that you would be appropriate for such and order and there has been a consent to the making of such order.
14I will give counsel an opportunity to have a look if they want to.
15As I say, those matters, if you ultimately did breach them, are not priors that I take into account in this matter, but the priors that you have, albeit as a young man, are still concerning. As I understand it you turn 23 tomorrow, don't you?
OFFENDER: Yes, Your Honour.
16HIS HONOUR: Well, these offences occurred, as I have said, when you were 20 and 21, and prior to that time, you have priors of significance. As an adult, your offences are not dramatically bad. You had one of burglary in July 2010 and one of theft in September 2011, indeed you have never been sentenced to gaol before, but for both of which you received a Community Corrections Order, and I take it that they are the orders that were apparently breached and for which you subsequently got a suspended sentence, as I understand it.
17Concerningly, albeit that one is aware that these were Children's Court offences, you did in December 2008 have an affray offence and an assault with a weapon. And in September 2008, you had a robbery, affray, and a recklessly causing injury to a person. For each of those offences you received Youth Supervision Orders and apparently served those out.
18One of the most important things that I saw in the report, Exhibit E, from the Community Corrections authorities, is that they noted that at the time of the commission of these crimes, in particular the matters involving Papasavas, you were consuming somewhere in the region of a gram of ice per day.
19The Crown sought a Forensic Sample Order, which I understand that I have signed, a Forfeiture Order and Disposal Order, and I think I have signed all of those, haven't I?
MR TABERNER: No, we haven't got the Forensic Sample Order back yet.
HIS HONOUR: Oh no, sorry. I will sign that one. But the Forfeiture Order and Disposal, I think I have signed.
MR TABERNER: Yes, Your Honour.
20HIS HONOUR: Yes. And I was advised that, as at the last hearing, you had served some 581 days on remand. And Mr Prosecutor, as best our additions are, we make it 590 days as of today.
MR TABERNER: Yes.
HIS HONOUR: Is that correct?
MR TABERNER: Yes, Your Honour.
HIS HONOUR: Do you agree with that?
MR MARCHEVSKI: That is correct. Yes, Your Honour, yes.
21HIS HONOUR: So as of today, on remand awaiting sentence for these matters, you have in fact served one year, seven months and 12 days.
22Section 16(3)(c) of the Sentencing Act 1991 applies in regard to Charge 6 on the second indictment. And that provides that, if you commit an offence to which you pleaded guilty to here, while on bail, then unless directed by the Court, that particular sentence must be served cumulatively with any sentence imposed in regard to your other offences.
23
The learned prosecutor, in analysing the seriousness of these crimes, that is Mr Stefanovic, and having heard the plea by Mr Johnston, maintained the view of the Crown, that despite all of these crimes, these were crimes requiring an immediate period of imprisonment. Mr Johnston did not resile from that, given the seriousness of the crimes, but essentially what
Mr Johnston was saying to the Court, that it should, given your young age and despite the seriousness of these matters, take into account the lengthy period that you have been in gaol and make a determination which would, in effect, mean that you could enter into a Community Corrections Order and not have to serve any more actual gaol time.
24Mr Johnston, in support provided the Court with a written submission, which I have identified for the purposes of the plea as Exhibit 1. That submission also provided a very handy chronology, insofar as your life's concerned, which I found of assistance.
25Insofar as the Papasavas crimes, Mr Johnston concedes in his submission and before me, their seriousness. As I remarked, when you took Mr Papasavas out of the car at this deserted building site, one can only imagine, even though he has not put in a victim impact statement, what he was thinking. It would be true to say that he would be very concerned as to what was about to happen to him. Fortunately for you, what happened to him, apart from his own fears, was not too dramatic. However such behaviour, such an interference with a person's rights and the commission of such offences, such as a robbery, and the circumstances, are of concern.
26It is clear that you were, at the time, acting in a very immature manner. Whether you were mixing in the wrong circles or they are the circles with which you mix, I do not know, however as I mentioned, the fact that you were consuming ice had, according to your counsel, very much to do with the quite abrupt and ruthless threat that you issued, after these crimes were reported.
27Mr Johnston pointed out that the trafficking count, albeit serious, involved only one transaction and one gram, and I accept that.
28Your crimes may well be situational, given the circumstances that I subsequently heard about your background. They may well, and probably certainly are, because of the manner in which you were mixing in a drug culture at the time and the drug milieu, however what is of concern is the manner in which they express your attitude to the law at that time. They are clearly circumstances which grossly confront the law. And they are matters which lead to the Court to having some reservations, as have been expressed in the Community Corrections report, as to whether you are an appropriate person to take a chance on, for the purposes of your own rehabilitation. And that has been a matter that has been something that I have been struggling with.
29Insofar as the affray, I accept that your role was essentially limited. It involved you dealing with your friend's girlfriend, while he assaulted the other person.
30Mr Johnston stressed your background and the particular difficult circumstances that your mother has endured. The circumstances that you observed during your young childhood, as you were being brought up. The problems that you had, insofar as your step-father and indeed, as have been detailed to me, with your step-father's brother. Unfortunately that background led to you having particular difficulties at school, and unfortunately, you left school at a very early age.
31Despite your obvious immaturity and the circumstances which led you to be involved in the abuse of drugs, you appear, certainly before you became prone to substances, prepared to work hard and have worked hard in various occupations, and there are testimonials to that regard tendered.
32You have, prior to this occasion, never been to gaol. And you have stated, and your counsel submitted that you have certainly, over the period in gaol, grown up. A pretty tough place to grow up in. Your counsel submitted to the Court that having had that experience in gaol, you have determined that you do not want to go back, or stay, in this instance.
33Mr Johnston submitted on your behalf that your plea was lodged as early as possible, that the remorse that you have expressed to the Court was genuine, and in that regard, he referred to the references tendered to the court, as set out in Exhibit 3, and in particular, to your own letter. I have re-read that letter and insofar as your future activity is concerned, that letter will stay on the file and I hope I never have to remind you again of that letter, because what you have expressed in that letter, is an intent to change the lifestyle that you live today, albeit as a young person, to resume living with your mother, to take up employment with your uncle, Mr Hafez Mohamed, who has tendered a letter on your behalf and offered that employment. You state that you intend to act as a mature human being should in our community, and assist your mother in looking after your two brothers, who unfortunately are afflicted.
34In support of the plea, tendered to me were a series of testimonials as to the number of courses you have completed while you have been in gaol, and most importantly, five random positive urine tests undertaken in gaol of you, indicating that the comments that you have made about being off drugs for such a long period, have some authenticity to them. I say that because, unfortunately as this Court observes often, it is not all that difficult, apparently, to get drugs if you want to, in gaol, as crazy as that statement sounds.
35Mr Johnston said though these offences on their face are all serious offences, when one looks at the offending, they are of a relatively low order. And I accept that submission, but for the threat. In assessing the culpability in each of the crimes to which you have pleaded guilty, based upon the relativity of the matters that come before this Court, and assessing such culpability as required by the High Court in Ibbs [1987] 163 CLR 447, 452, I do put them at relatively low on the scale of heinousness, based on the actual circumstances.
36Mr Johnston also stressed, despite the seriousness of these crimes, that I have before me, a person who is still very young. As I say, you turn 23 tomorrow. A person who should be looking ahead to improving himself and becoming a valued member of the community.
37After long and concerned consideration, I have seen the strength in Mr Johnston's submission. Clearly Mr Ahmad, as you know, you are at the crossroads. If you finish your time in gaol and you go back on drugs again, then you can be assured, the next sentence you get in front of me, will not be light.
38I have decided, because of your age and the matters put to me, and the particular circumstances that I have detailed, that it is appropriate, despite the seriousness of these crimes, to give you an opportunity. What I intend to do, and in so doing, I have in particular, and I thank the prosecution for this, taken into account the series of cases tendered to me, as to sentences relevant to charges of robbery and affray, which are set out at Exhibit C. It is, of course, necessary to look at each of those sentences on the basis that they inform the Court, which then has to look at the particular circumstances of each case, insofar as its determination.
39What I intend to do is this, Mr Ahmad, if you consent, to the period that you have served already, which will be deemed service of this sentence, I intend to sentence you to an additional three months in gaol and to then impose a Community Corrections Order thereafter, for a period of three years. But this should be seen as an easy task, because for the period of three years, you are obliged not to commit an offence, punishable by imprisonment. That is why I said to you, if you should come back having committed further crimes, I will have your letter on file and you will have had this warning from me, there will be no second chance. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: Mr Marchevski, your client has in fact indicated in his signed document with the authorities, that he is prepared to enter in a Community Corrections Order.
MR MARCHEVSKI: Yes, Your Honour.
HIS HONOUR: Do you need to talk to him about that and what is involved, before I go ahead?
MR MARCHEVSKI: Your Honour, I would like the opportunity to just discuss that with him, Your Honour, just to reinforce - - -
HIS HONOUR: All right, well let me just tell you what I intend to do.
MR MARCHEVSKI: Yes, Your Honour.
HIS HONOUR: And then we will see if I have done it correctly. This is not that easy, considering that we have got a commonwealth charge.
MR MARCHEVSKI: Yes, Your Honour.
HIS HONOUR: And the fact that he has served a considerable period in jail. So essentially what I am doing, is accepting Mr Johnston's submission, but
Mr Johnston submitted that he had had enough time in gaol, I'm giving him another three months.
MR MARCHEVSKI: Yes, Your Honour.
HIS HONOUR: Once he gets out of gaol in three months, he will then have a Community Corrections Order to serve for three years. Most important of that will be that he does not commit another offence, but during that period, he will also be undergoing treatment and intensive treatment for the first 18 months for drugs and for offending behaviour.
MR MARCHEVSKI: Yes, Your Honour.
HIS HONOUR: He will also be subject to supervision and of course to any directions that the authorities give to him.
MR MARCHEVSKI: Yes, Your Honour.
HIS HONOUR: But the most important thing is the three years he has to understand not to commit an offence, punishable by imprisonment, because that will bring him back before me.
MR MARCHEVSKI: Yes, Your Honour. I will explain that to him.
HIS HONOUR: Essentially what I intend to do with all the other matters is make them concurrent, so that they make up the 590 days that have been served today. And then I will impose a three months gaol sentence, as part of a Community Corrections Order.
MR MARCHEVSKI: Yes.
HIS HONOUR: Plus the three years Community Corrections Order.
MR MARCHEVSKI: As Your Honour pleases.
HIS HONOUR: All right, do you want to have a chat to him?
MR MARCHEVSKI: Thank you, Your Honour. Thank you, Your Honour, for that opportunity. He is prepared to consent to the order.
40HIS HONOUR: Right, well I had to struggle a bit with this, but this is the way I intend to do it. If we take the second indictment first, on the charge of trafficking, Charge 1, you will be sentenced to a period of imprisonment of 590 days.
Charge 2, robbery, 590 days.
Charge 3, intentionally cause injury, 300 days.
Charge 4, the possession of drugs, 20 days.
Charge 5, the - no, Charge 5, for the moment I will not pronounce a sentence.
Charge 6, 400 days. In the circumstances of this case, I do not intend to make Charge 6 cumulative in any way, despite what is set out in s.16(3)(6), and the reason for that will become obvious, it just is not possible in the manner in which I have got to sentence for such intent of Parliament to be carried out in this instance.
Insofar as the summary offences, Charge 8, 180 days.
Charge 9, 250 days.
Charge 13, 180 days.
I order that all of those sentences are to be served concurrently, making a total aggregate sentence for Charges 1, 2, 3, 4, 6 on the indictment, and the three summary offences, 590 days.
Insofar as Charge 5 is concerned, that is the Commonwealth charge, I sentence you to a period of imprisonment of two months, and order that that period, as I am required to do under the Criminal Code Act 1995, commence today.
Then coming to the first indictment, the charge of affray, what I intend to do, pursuant to s.44 of the Sentencing Act 1991, Mr Ahmad, is sentence you to a period of imprisonment of three months, which will start today. That three months is to be cumulative upon the aggregate sentence of 590 days, pronounced in regard to the first indictment, of which I have sentenced you on.
That three months is to be served concurrently with the sentence imposed in regard to the Commonwealth matter, Charge 5.
41I declare that the 590 days that you have served is to be deemed as service of the aggregate penalty imposed on the second indictment, being 590 days. And that, as I have intended to do, leaves you to serve two sentences, on in regard to Charge 5 of the indictment of two months, on the Commonwealth matter, which is being served concurrently with a sentence of three months on the affray matter.
42You will then, after three months from today, be released and will then enter into a Community Corrections Order, which will apply from three months from today, for a period of three years. The intensive correction period, which I propose is a period of 18 months, and that is specifically to relate to the conditions of 48(d)(1) and (3), which is the drug assistance and the assistance in counselling in regard to offending.
43I will impose a supervision provision. I stress the obligation under s.45 for the next three years, or three years and three months, that you not commit an offence punishable by imprisonment.
44The period of hours to be served by way of community hours and service in the community is one of 250 hours.
45Doing as best as I can to comply with the requirements of Parliament, I should indicate that, had you not pleaded guilty, the period in addition to the time that you have served that I would have imposed, would have been a period of nine months. That is on top of what you have served now, but having pleaded guilty, you are getting a period of three months, plus a Community Corrections Order.
46Now, Mr Taberner, do I need to go over anything with you, in regard to those matters?
47MR TABERNER: No, Your Honour.
48HIS HONOUR: You will see that, in effect, by doing the first one 590, declaring the 590 days, that sees that out. And s.44 of the Sentencing Act, which I should have here. Yes, I think it is 44(4), isn't it?
49MR TABERNER: Yes, 44, Your Honour.
50HIS HONOUR: 44?
51MR TABERNER: Yes.
52HIS HONOUR: Declares that, "When sentencing an offender in respect of one or more offences, the court may make a Community Corrections Order in addition to opposing a sentence of imprisonment", and then (b) "The sum of all the terms of imprisonment be served after deduction of any period of custody under s.18, is three months or less."
53So that as I have tried to do it, he gets full credit, obviously, for his period. He has served that. He has got to serve three months plus a CCO for three years. And the two months imposed in regard to the Commonwealth offence will be served concurrently with that three months, and so that will see itself out during that period as well. Happy with all that?
54MR TABERNER: Yes, Your Honour.
55HIS HONOUR: Right. Mr Ahmad, I am sorry for the technicality of that, but you are smart enough to understand what that means. In addition to the period of 590 days you have done now, you have got to do another three months, and then three years, which is really a Community Corrections Order, putting a bit back in the community by way of work, but most importantly, getting assistance to make sure you do not get back on drugs. And let's hope that you can change your lifestyle, because you now are old enough. You cannot look back and say, "What happened to me when I was a young bloke?" You have got to make something of your life. And look after your mother.
56Yes, anything else, gentlemen?
57COUNSEL: No, Your Honour.
58HIS HONOUR: Oh yes, we have got to do the order. And I will sign the - well the Forensic Order will be (indistinct).
59In regard to this Forensic Order, you will be asked to make a forensic sample by mouth. They can bring you back here if you refuse to do it, so can I ask you to do it?
60OFFENDER: Yes, Your Honour.
61HIS HONOUR: Can I thank counsel for their assistance in what was not such an easy plea. If you can thank Mr Johnston for me - - -
62MR MARCHEVSKI: I will, Your Honour.
63HIS HONOUR: - - - Mr Marchevski. It was of assistance, the matters put.
64MR MARCHEVSKI: Yes, Your Honour.
65HIS HONOUR: Yes. Yes, well good luck, Mr Ahmad, all right? I do not want to see you again.
66OFFENDER: Thank you, Your Honour.
67HIS HONOUR: Not in here anyway.
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