Director of Public Prosecutions v Al-Bab

[2017] VCC 931

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00039

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALI AL-BAB

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 July 2017
CASE MAY BE CITED AS:	DPP v Al-Bab
MEDIUM NEUTRAL CITATION:	[2017] VCC 931

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Sharpley
For the Accused	Mr J Hofman

HIS HONOUR:

1Ali Al-Bab, you are to be sentenced for one charge of armed robbery.  The maximum sentence is 25 years' imprisonment. 

2You pleaded guilty before me on 4 May 2107.  When interviewed by police on
7 October 2016,  you admitted your identity in relevant CCTV footage, but denied the offending.  However, you offered to plead guilty on 28 December and did so at a committal mention hearing soon after.  Committal then went by hand-up brief and the matter was listed for plea hearing in this court.

3You receive the benefit of your plea of guilty and co-operation, both from an early stage.  You plea has facilitated the interests of justice and expresses remorse. 

4At your plea hearing which ran on 4 May and 3 July, Mr Sharpley for the Crown, tendered a written Crown opening and a number of photographs of injury caused to your victim, Rohullah Mohebi.   Mr Lewin, for you, tendered the psychological report of Simon Candlish, dated 30 April 2017, certificates related to rehabilitative and educational programs at Port Phillip Prison where you are placed in the mainstream Salamander Unit and,  on 3 July, a document recording subsequent charges on which you are to be sentenced later this month in the Magistrates' Court. 

5On 4 May, I requested a report under s.32 of the Sentencing Act, as to your suitability for Youth Justice detention.  I have now received the report of Stephen Riordon, a senior court advisor for Youth Justice, dated 29 June 2017.

6The circumstances of your offending are described in the tendered Crown opening, which is Exhibit A.  My own summary may be relatively short.  Your co-offenders are Taha Bahsa, aged 20, and Shania Pearman, aged 17 at time of offending.  You were then aged 19 and recently turned 20 in late-June.  Shania Pearman knew Rohullah Mohebi.  She had some sort of grievance against him and decided to set him up to be robbed, purporting to meet and purchase cannabis from him.  You do not seem to have known Mohebi, although that is not completely clear. 

7On 28 August 2016, Mohebi was waiting for a friend in or near Jolimont Lane in East Melbourne.  Bahsa, pretending to ask for directions, assaulted him, grabbing his head and pulling it down.  He demanded his wallet.  You and Pearman were nearby.  You joined in, armed with what is described as a carving fork.  You threatened to stab Molebi, posturing as if to do so.  You demanded what he had and went through his pockets.  Mohebi was still held by Bahsa.  You stole his mobile phone, wallet and car keys, and then his car.  Bahsa further assaulted him, punching and throwing him to the ground. 

8Mohebi stated to police that he was in fear of his life.  His injuries are stated as follows, at paragraph 10 of the Crown opening:

"At the time of making his statement, 28 August 2016, the victim's neck was still sore.  Both sides of his jaw hurt and he had sustained a cut to his left elbow."

9The Crown opening also seems to state that Mohebi's motor vehicle was located burnt out.  That was confirmed to me today.

10Rohulllah Mohebi has not made a victim impact statement.  I was told, that he was offered the opportunity to do so.

11As stated, you are 20 years of age and presently in custody.  You are of Lebanese background, born in Kuwait, then living in Dubai, before coming to this country with your mother when five.  Your maternal grandparents lived in Melbourne.  You parents had separated.  You are their only child. 

12You returned to the Middle East to live with your father for two periods, it seems prior to and in early teenage.  That did not work out. 

13In Australia your mother had re-partnered and your relationship with your
step-father deteriorated.  You left the home at 16.  There has been a time with your grandparents,  in supported accommodation, but also periods of homelessness since.  You have been in custody for much of the time after being charged with these matters.  Your family does not know of your situation.

14Schooling was not successful, affected by a change in school in mid-teenage and subsequent behavioural problems.  You managed to complete Year 11. 

15Since, you have worked at Kentucky Fried Chicken, a fruit and vegetable shop, pizza restaurant and clothing factory.  You were not employed leading to time of this offending.

16You began using cannabis at 14 and then cocaine at 16.  I was told that you have not used methylamphetamine.  Drug use seems to have become a part of your unstable and purposeless life; but it is not put, as I understand it, as
a dominant or singularly damaging factor. 

17The report of psychologist, Simon Candlish, states no serious or entrenched mental health condition.  He states that you do not present with traits associated with anti-social personality disorder. 

18Your criminal record indicates, essentially, three prior court appearances, dating from June 2014, when you were yet but about to turn 17.  That first appearance included for the offence of armed robbery, a similarly styled form to what is before me.  From that time there was contact with and support of Youth Justice within the Department of Health and Human Services.  This included supported accommodation and at one time in mid-2015  support to re-join your family.  You appeared, at times, to respond well;  but ultimately failed to take advantage of this assistance. 

19Mr Lewin advised me of subsequent or pending matters.  I see a disturbing escalation in your offending.   The chronology since arrest and charge for the matter before me, is as follows.  You were remanded from 7 October to 28 November 2016, when you were granted bail.  On 16 January 2017, you were committed to this court.  On 30 January, you were remanded on a large number of other charges, some prior to and some subsequent to this offending.  On 4 May, the original plea hearing before me, I revoked your bail on this matter.  That was on your application.

20The pending charges are listed for sentence on 27 July at the Magistrates' Court.  They include offences of theft, burglary, robbery and serious driving offences.  The sentencing magistrate has also requested a report as to suitability for Youth Justice detention.  There is reference to this in Mr Riordan's report to me. 

21I have reflected on the need to reflect totality or to apply the principle of totality to my sentence;  but ultimately  I see that as a matter that should be addressed by the magistrate on 27 July.  It may be that your legal advisors will raise my comments in that regard.

22I have found Mr Riordan's report helpful.  It is both realistic and insightful. 
I should quote at some length from its latter part.

"I have reservations about Ali's prospects for rehabilitation.  He continues to engage in criminal behaviour and has done so over the past six years, despite the efforts of Youth Justice and associated agencies.  I hold little store in Ali changing his ways, especially if he does not have the appropriate resources and services in place when he's released.  He currently has no parental support and will require intensive support and supervision when released and on parole.  In the last interview with the writer, Ali appeared to be honest and contrite about his offending behaviour and how it occurred.  His offending behaviour will need to be addressed therapeutically to assist him in his overall rehabilitation.

"The remaining criteria applies to Ali in the respect that he can at times present as being somewhat immature and impressionable and other times, he is a capable and resilient young man.  In my opinion, if he is left in the adult prison system, he will continue to adapt to his environment     and may have to adopt some undesirable behaviours, in order to assimilate with the culture.  Clearly this has the potential to significantly impede the rehabilitation process.  The writer has read all the material supplied by the court and has      consulted with the relevant authorities and the Youth Justice system in regard to Mr Al-Bab's suitability for a Youth Justice Centre order.  It is the view of the Department of Justice and regulation, Youth Justice, that Ali Al-Bab meets some of the criteria stipulated in the Act and is therefore     considered to be a suitable candidate for a Youth Justice Centre order."

23Accordingly, the report finds suitability, but does not exude optimism. 

24The offence of armed robbery attracts a maximum sentence of 25 years, measuring the seriousness of it.  This was a frightening and cowardly attack upon your victim.  You have prior offending, some particularly relevant.  Your offending is escalating.  Such circumstances make relevant sentencing considerations of deterrence, your moral culpability, the need to express condemnation of what you did and to punish proportionately.  A custodial sentence is necessary.

25Moderating factors include the following.   (1) Your plea of guilty and
co-operation.   (2) Your youth, which makes rehabilitation important.  (3) Your personal history and circumstances.  Your  upbringing was unstable and I have little doubt that you have felt isolation and rejection.

26Reservation about your present prospects for rehabilitation are properly expressed;  however, I have come to the view that a Youth Justice sentence, with the expectation then of supported and closely monitored parole is the appropriate sentence.  Further, it is that which gives the best chance of your rehabilitation.  I find that this, given your age and situation, is in the best interests of the community and its protection.

27Having considered and weighed what I see to be the relevant matters,
I sentence you as follows.  Stand up please. 

28For one charge of armed robbery, you are sentenced to two and a half years of Youth Justice detention. 

29I declare under s.35 of the Sentencing Act, 117 days of pre-sentence detention related to this sentence.

30Had you not pleaded guilty, I would have sentenced you to adult prison for

31a period of three years, with a minimum term of 18 months.  However, such release on parole would not have been certain. 

32Are there other matters that I need to address?

33MR SHARPLEY:  No, Your Honour.

34MR HOFMAN:  No.

35HIS HONOUR:  All right.  Now, it is not Mr Lewin, is it, I am sorry, it's Mr Hofman. 

36MR HOFMAN:  Yes, Your Honour.

37HIS HONOUR:  His placement, as I understand it, will be to return to the adult setting until 27 July, that's right, I think, isn't it, because he's on adult remand?

38MR HOFMAN:  Your Honour, there's a matter listed today in the Magistrates' Court ‑ ‑ ‑

39HIS HONOUR:  You are going to ask for him to start his sentence, are you?

40MR HOFMAN:  That is correct, Your Honour.  Directly after here, it will be across the road. 

41HIS HONOUR:  All right, well yes, well you've obviously got things in hand.  All right, it looks like you will be taken probably to Malmsbury and they'll work out whether or not you are suitable to be placed in the open site setting.  That will not happen for some time, at least until the other matters are over and you are sentenced.  Your future depends on you.  You might not think much of what people have been trying to do for you, but I can assure you, unless you start complying with it, you will end up with a very long sentence in adult prison and you will come out and you will have nowhere to go.  All right, if that is all  
I need to do.

42MR SHARPLEY:  Yes.  As Your Honour pleases.

43HIS HONOUR:  Good.  Thank you.

44MR HOFMAN:  As Your Honour pleases.

45HIS HONOUR:  Take Mr Al-Bab into custody.  Thank you.  Thank you,
Mr Riordan. 

46MR RIORDAN:  Thank you, Your Honour. 

47HIS HONOUR:  All right.  That is that matter. 

48MR HOFMAN:  If I could please be excused, Your Honour?

49HIS HONOUR:  Yes, thank you, Mr Hofman.    

50MR SHARPLEY:  Can I also be excused, Your Honour?            

51HIS HONOUR:  Yes, Mr Sharpley, I'm sorry, yes. 

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