Director of Public Prosecutions v Ahwan
[2016] VCC 51
•16 March 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01821
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL AHWAN (also known as Daniel Trevor Nam) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 2016 | |
DATE OF SENTENCE: | 16 March 2016 | |
CASE MAY BE CITED AS: | DPP v Ahwan | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 51 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – burglary and theft, attempted armed robbery – prohibited person possess an imitation firearm – summary charges – deal with property suspected of being proceeds of crime and unlawful assault – significant past history of depravation – long criminal history.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Malobabic | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms J Kennedy | Leanne Warren & Associates |
HER HONOUR:
1 Daniel Ahwan, you have pleaded guilty before me to one charge of burglary, one charge of theft, one charge of attempted armed robbery and one charge of being a prohibited person in possession of an imitation firearm. You have also pleaded guilty to summary charges that were transferred, namely, deal with property suspected of being the proceeds of crime (Charge 9), and unlawful assault of Tam Luong (Charge 11).
2 The offending is serious and that is reflected in the maximum penalty that is prescribed by law. The penalties are as follows.
Burglary – Level 5 imprisonment – 10 years maximum;
Theft – Level 5 imprisonment – 10 years maximum;
Attempted armed robbery – Level 3 imprisonment – 20 years maximum;
Prohibited person possessing an imitation firearm – 1,200 penalty units or 10 years’ imprisonment;
Unlawful assault – three months’ imprisonment or 15 penalty units; and
Deal with property suspected of being proceeds of crime – Level 7 imprisonment – two years maximum.
3 In addition, you have admitted your criminal record. The record is an extensive one, set out in 18 pages in the Victorian Police Criminal History Report that was tendered at the plea hearing. In the past there have been 26 court hearings in Victoria. You have a wide range of convictions for offending and in the past you have served multiple terms of imprisonment.
4 I shall proceed to sentence you on the basis of the Crown opening that was read at the plea hearing and that is marked as an exhibit. I have also viewed the CCTV footage that shows the circumstances of the attempted armed robbery the subject of Charge 3, which also shows the unlawful assault which is Summary Charge 11.
5 You are currently 42, your date of birth is 2 August 1973. You are the eldest of three boys.
6 You were charged on 28 May 2015, bail was refused and you were remanded in custody. The matter was listed for a committal case conference on 19 August 2015 and resolved at committal on 20 October 2015. There were no witnesses called at the hearing.
7 Briefly, the offending the subject of Charges 1 and 2 (burglary and theft) occurred on Saturday, 9 May 2015 at about 9.00 am. You were with your brother Benjamin Jensen and you attended Michael Eastick & Associates' business premises in Forest Hill. You gained entry after your brother kicked open the door and you stole $400 cash from the register. That offending was captured on CCTV footage. There were no staff present at the time.
8 Charge 3 (attempted armed robbery) and Summary Charge 11 (unlawful assault), relate to an occasion on Wednesday, 13 May 2015. At about 12.15 pm on that day, in company with your brother Benjamin Jensen, you entered Bottlemart at Middleborough Road, Box Hill South. Neither of you were disguised. Mr Tam Luong, the victim, was working alone. He is the owner of the store.
9 Your brother distracted him by making some enquiries about wine. You went behind the service counter whilst he was doing that and attempted to open the first drawer. You believed that there was heroin being sold from the store and you were looking in the drawer for those drugs. When Mr Luong confronted you, you punched him in the face and then he walked backwards. You followed him and stood over him in an aggressive manner. You then produced a pocket knife and threatened him with that knife, pointing the knife towards him. Your brother then fled the store. The victim then picked up a small fold-up table to defend himself, and a physical confrontation then ensued. You continued to hold the knife in your hand and you were pointing it towards the victim. He became scared and jumped over the counter screaming for help. You are then seen opening the first drawer behind the service counter, briefly looking inside, and then you fled the store without taking anything. The whole episode was captured on CCTV footage.
10 Mr Luong suffered bruising, swelling and soreness around his left eye which lasted a few days. He had some treatment at the scene by ambulance officers but did not require any further medical treatment.
11 He was asked to but declined to make a Victim Impact Statement. Notwithstanding that he did not make such a statement, I am satisfied, having viewed the CCTV footage, that the circumstances of the offending would have been most frightening.
12 I now turn to the summary charges, Charge 4 (prohibited person possessing an imitation firearm) and Charge 9 (deal with property suspected being proceeds of crime). The circumstances of those offences are that on 28 May 2015 police executed a search warrant at premises where you were living. You were located hiding under a bed and arrested. Following a search of the premises, police located one imitation handgun in a JB Hi-Fi bag. The bag was placed in the left hand front pocket of a jacket on the floor. You are deemed to be a prohibited person pursuant to s.3 of the Firearms Act 1996 as you have been sentenced to two terms of imprisonment for indictable offences, namely theft in 2013. So that is the facts of Charge 4, prohibited person possessing an imitation firearm.
13 Police also located a large number of items suspected to be the proceeds of crime as detailed in the particulars of Charge 9 (summary charge). In relation to those items, it included various store gift cards, camcorders, mobile phones, shoulder bags, ornamental objects, jewellery, an iPod, phone chargers and sunglasses.
14 Following your arrest, you were interviewed. You were cooperative with the police and made some formal admissions. You admitted being present at the Bottlemart store and you also admitted the burglary and theft at Michael Eastick & Associates and you identified yourself from the CCTV footage.
15 I note the co-offender Benjamin Jensen is your younger brother, he is about 30. He has been charged with burglary and theft relating to the Eastick matter and the matter is proceeding in the summary stream. He is currently in custody and has a significant criminal record.
16 At the time of the offending, you were homeless and living on the streets. You had not been taking your prescribed medications. You were not under the influence of drugs or alcohol and you committed the offending in order to locate drugs which you were intending to on-sell to finance a wedding. Your relationship with your then-girlfriend has now broken down and you have lost contact with her. You are uncertain of that relationship currently. Whilst providing a context to this offending, it in no way excuses your behaviour.
17 In sentencing you, I am required to have regard to the circumstances and also your background and history. I am satisfied that the offending was not particularly sophisticated, it was opportunistic and I note that there were no attempts made to disguise yourself on either occasion.
18 In sentencing you, there is a need to emphasise both general and specific deterrence and the court must impose just punishment.
19 Ms Kennedy on your behalf relied on the report of Dr Leon Turnbull, consultant psychiatrist. His report dated 30 December 2015 was prepared following his assessment of you on 22 December 2015.
20 The report details your difficult history of childhood deprivation where you suffered both sexual and physical abuse. You were a ward of the State till age 16. You only had intermittent contact with your mother and minimal involvement with your father whom you last saw when you were 12. You were schooled until age 12 and you have had little by way of sustained employment in the past. You have a history of multiple incarcerations. You have remained in the community only for relatively limited periods of time in your adult years.
21 You have not been married but have a son (age 13) from a prior relationship. That son is in the care of the Department of Health and Human Services due to concerns about his mother. You have some limited involvement with him however the DHHS keep you informed as to his progress.
22 In the past there was a history of drug abuse commencing in your teenage years. You started with marijuana and then graduated to heroin but it is said that you have not used heroin for the past three years. You have used Ice and Speed but you did not report quantity or frequency to Dr Turnbull.
23 You have a history of contact with mental health services since your teens. You have a good long-term therapeutic relationship with your general practitioner, Dr Phillips.
24 Dr Turnbull noted you use antipsychotic medication but he could not find much to indicate you suffer from a chronic psychotic disorder such as schizophrenia. He postulated it may be that you have suffered a drug induced psychosis in the past and he recommends your diagnosis be clarified. It is not suggested that there is any link between any mental condition and this offending.
25 Dr Turnbull postulates around the time of the offending you had ceased medications for some weeks and without appropriate support. That may have resulted in you becoming emotionally unstable and, as a consequence, your judgement was less than optimal. Without knowing the proper psychiatric diagnosis, I am not satisfied that your judgement was impaired to the extent that you did not know what you were doing was wrong. I consider that you do know that these acts were wrong and therefore I consider your moral culpability to be high.
26 Ms Kennedy confirmed that she did not seek to rely on Verdins principles insofar as the offending was concerned. She stated that there has not been any definite diagnosis of schizophrenia notwithstanding that you regularly take antipsychotic medication. She confirmed that you are currently prescribed Seroquel.
27 Since your remand you have been held in custody and subject to restrictions put in place following the July 2015 riots, with the majority of time spent in 23 out of 24 hour lockdown. You have also been in protective custody because of mental health concerns.
28 Ms Kennedy did however rely on an aspect of the Verdins principles and submitted that your experience of imprisonment is more burdensome by reason of your mental health condition and that will be ongoing, and I accept that.
29 In terms of the future, it is proposed that upon your eventual release you will go and live with your younger brother Matthew who is aged 21. He lives in Boronia. He does not have a criminal history and is self-employed as an industrial cleaner. There is a prospect that he will be able to accommodate you with work in his cleaning business. Your mother recently suffered an aneurysm and is now living with your younger brother. You have had some contact ongoing with both your mother and brother, and it has been confirmed formally that you will be able to live with them upon your eventual release.
30 Ms Kennedy submitted in all the circumstances, a term of imprisonment followed by a Community Correction Order was an appropriate disposition. She submitted that such an order could satisfy the need to emphasise punishment and also address protective concerns.
31 Ms Malobabic, on behalf of the Crown, submitted that a term of imprisonment to be followed by a Community Correction Order could be considered by the court but noted that your prospects for rehabilitation are guarded.
32 I adjourned the hearing of this matter to enable a pre-sentence report to be obtained to assess your suitability to undergo such an order. The report that I have received, authored by Christopher Grow dated 9 March 2016 does state with hesitation that you are assessed as being suitable for the imposition of a Community Correction Order on special conditions which I have already outlined to you and which you have acknowledged to me that you understand. You have also acknowledged to me that you are prepared to consent to such an order being made with such conditions.
33 I have had regard to the following features in mitigation. I have had regard to the procedural history and note that you have been on remand in difficult circumstances since 28 May 2015. Your matter did resolve at the committal hearing without witnesses being called and a plea of guilty was entered with respect to the charges. It is accepted the plea of guilty was at the earliest stage, therefore there is real utility in your plea. You have saved the state the expense and inconvenience of a trial. I am satisfied it shows a degree of remorse. I am satisfied further facilitates justice and therefore a sentencing discount applies. You also acknowledge that what you did was wrong.
34 Further I have had regard to your difficult family history and background. I have had regard to the progress that you have made since you have been in gaol on this occasion. You have completed an industrial cleaning course and you are working as a unit billet and that is a good recognition of your behaviour whilst in prison.
35 You have been assessed as suitable for a CCO notwithstanding that formally, you have been assessed as a high risk of general reoffending by the assessing officer, Mr Grow. It has been confirmed that your mother Jane Daniels and brother Matthew Daniels are prepared for you to live with them at 1046 Mountain Highway, Boronia upon your eventual release. Currently you are drug free and compliant with your medications. You take 600 milligrams of Seroquel daily and 60 milligrams of Avanza daily.
36 Overall I accept that there is reason for guarded optimism for your rehabilitation prospects, but it will be entirely dependent on you complying with the CCO. You have expressed a willingness to me to undertake the requirements of the CCO as I have outlined which requires treatment and rehabilitation for drugs, mental health and offender behaviour programs. There will further be supervision.
37 Overall, given the prospect of a stable living environment with both your mother and brother, together with your current stable mental health and your commitment to change, I consider that it is in your interest to transition you back into the community with appropriate supports, and the CCO that has been crafted in the manner in which it has can provide this for you. This is so notwithstanding your past history of breach of court orders including wholly suspended sentences and also four breaches of parole. You will be able to re-establish your relationship with Dr Phillips who has been treating you over decades upon your release and you have a very good therapeutic relationship with him.
38 I am mindful of what was said by the Court of Appeal in the guideline sentencing judgment of Boulton v The Queen[1] where it is accepted that a CCO is intrinsically punitive and capable of deterring others and providing for specific deterrence. The court at paragraph [131] confirmed that a Community Corrections Order may be suitable even in cases of relatively serious offences which might previously have attracted immediate term of imprisonment, and it is my view this is such a case.
[1] [2014] VSCA 342.
39 Mr Ahwan, I am satisfied in all the circumstances that the order I am proposing is capable of satisfying all the sentencing principles whilst offering you the best prospects for your future rehabilitation. This is so notwithstanding your long criminal history and your experiences of court orders and parole in the past. I am satisfied that you are well-placed currently with the support of your brother Matthew and your mother to establish yourself back into the community. Otherwise if you fail, you face the very real prospect of returning to gaol and at age 42 becoming institutionalised.
40 As was said in another case of The Queen v Tiburcy[2], a sentencing court must look to the future as well to the past, there is a real benefit to the community at large as well to individuals themselves and their immediate families if future criminal activity can be avoided. Your ultimate rehabilitation provides for the best protection for the community in the future and also works towards reducing the likelihood of reoffending.
[2] [2006] VSCA 244.
41 Mr Ahwan, I propose to impose an aggregate sentence of imprisonment to follow a CCO to reflect that this was a series of related offending. I ask that you please stand.
42 In respect of each of the charges both on the indictment and the summary charges, you are convicted and I impose an aggregate sentence of 12 months to follow a CCO of three years on the terms that I have already articulated is the sentence.
43 I make the following declaration pursuant to s.6AAA of the Sentencing Act 1991. But for your plea of guilty I would have imposed a term of imprisonment of five years to serve three years.
44 I make the following declaration of pre-sentence detention, I declare that you have served 203 days of the sentence imposed this day and direct that that be entered into the records of the court.
45 I make the disposal order sought in respect of the imitation firearm.
46 I make the forfeiture order sought in respect of the items the subject of Summary Charge 9.
47 I make the compensation order for $400 in favour of Michael Eastick & Associates.
48 I think that covers everything?
49 MS MALOBABIC: Your Honour, the forensic sample order.
50 HER HONOUR: Hasn't that ever been done in the past?
51 MS KENNEDY: He already had one.
52 OFFENDER: They've already - they've already done it.
53 MS KENNEDY: Yes, yes.
54 HER HONOUR: In those circumstances, I don't consider one is necessary. I'm sure somebody who's been in the system this length of time would be on the database.
55 Is the order prepared? Have you got it? Yes.
56 All right, so I have signed that, Mr Ahwan, and I will get you to go through it with your counsel and sign that for me, and then we will organise for copies.
57 (Community Correction Order signed and acknowledged.)
58 You can take a seat, Mr Ahwan, I am just signing some more orders, the ones that I announced at the end.
59 There we are, all right, so those orders are signed so you're free to take Mr Ahwan now. Thank you.
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