Director of Public Prosecutions v Al Badri
[2016] VCC 228
•4 March 2016
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -15-01811
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALI AL BADRI |
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| JUDGE: | HER HONOUR JUDGE DAVIS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 4 March 2016 |
| CASE MAY BE CITED AS: | DPP v Al Badri |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 228 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentence
Catchwords: Armed robbery – contravention of a community corrections order
Legislation Cited:
Cases Cited:
Sentence:Total effective sentence of four years and six months imprisonment with a non-parole period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Mackaness | |
| For the Accused | Mr P. Guggenheimer |
HER HONOUR:
1Mr Al Badri, you have pleaded guilty to two charges of armed robbery in relation to your conduct on 20 and 22 June 2015. The maximum penalty for armed robbery is 25 years' imprisonment.
2Your offending occurred while you were on a two year Community Corrections Order, that order having been imposed by me on 17 July 2014 in respect of a charge of recklessly cause serious injury, concerning events which occurred on 19 June 2012.
3For the sake of completeness, I note that as at June 2015, you were also subject to a Magistrates' Court Community Corrections Order, which expired on 22 September 2015. You are still to be dealt with for breaches of that order through non-compliance and other summary offending, but that is not a matter for me to be concerned with.
4You have also admitted the contraventions of the Community Corrections Order I imposed on 17 July 2014, due to non-compliance with the terms of that order, as well as the further offending for which I am sentencing you today.
5
According to the Corrections report, dated 27 October 2015, your
non-compliance comprises failure to report, nine occasions; failure to perform community work, seven occasions; as well as failure to undergo treatment and rehabilitation. It appears that you have only completed two hours of the community work I ordered; that you engaged with attendances only a few times before disengaging completely for months at a time. You attended a number of appointments for drug and alcohol treatment and denied engaging in drug use.
6The author of the report concluded that you had failed to take advantage of the opportunity provided by the Community Corrections Order, and that the order be cancelled and you be re-sentenced on the original charges.
7The two incidents of armed robbery are set out in full in the summary of prosecution opening, which was tendered on the plea, and I sentence you on the basis of the facts contained in that document.
8I viewed CCTV footage of each of the armed robberies, which occurred at service stations in Templestowe and Doncaster.
9The first armed robbery occurred at 3.55 am on 20 June 2015 in Templestowe. You gestured at the victim to open the door, and when he did so, you greeted him and asked for a phone to call a taxi. You did not use the phone, but asked whether the store had insurance. You then pulled out a pouch, showed the victim a butcher's knife, and told him to put cash in the bag, specifically $100 and $50 notes. You told him to hurry and threatened him. Once the money was in the bag, you thanked the victim, warned him not to call the police, and ran away. The total amount stolen was $400.
10The second armed robbery occurred at 12.10 am on 22 June 2015 in Doncaster. You approached the victim who was behind the counter, threw a black pouch onto the counter and produced a butcher's style meat cleaver. You told the victim to hurry, banged the cleaver on the counter, waved it around, leaned over the counter, getting louder and more aggressive, threatening to hurt his head. The victim told you there was no more money. You took the bag and threatened to return, and threatened to kill him if he came outside. He opened the door and you walked away, having stolen $185.
11You were identified from the CCTV footage at both locations, arrested and interviewed on 17 July 2015, when you denied being the offender.
12You entered your plea at the first available opportunity on 19 October 2015 at the committal mention hearing.
13You have served 186 days pre-sentence detention, not including today.
14Your counsel outlined your personal circumstances. You are 23 years old. You were born in Basra, Iraq, into a Sunni family and have five siblings. You were educated to Year 11 equivalent. Your father was a truck driver, working in construction at a US army base. After fears that he was going to be targeted by Shiite Militia, your family decided that you should leave and raised money to send you to Indonesia. You arrived alone by boat at Christmas Island in early-2010, when you were 17 years old. You spoke no English. You were released into the community, learned English, had your refugee status confirmed, then obtained a driver's licence and later a security licence. You worked in Brisbane and Sydney and Perth in security.
15In 2012 you moved to Melbourne and started working in security for sports' events. You were living in Reservoir and doing well. Your main contact was with your cousin here, Adel.
16
According to your instructions to your counsel, you had never consumed alcohol or drugs to this point. Unfortunately you obtained a weekend security job at nightclubs and gained access to methylamphetamine or ice, which you started smoking in 2013. You became addicted. You committed driving offences and lost your driver's licence. You committed the offence for which
I originally sentenced you and you lost your security licence. You lost your job, as did your cousin. You were on Centrelink benefits but still using ice. You were living together, but neither of you had jobs, nor money, nor food. You did not meaningfully participate in the Community Corrections Order to which I sentenced you. You committed the armed robberies in the context of your ice addiction and during the period of the Community Corrections Order to which I sentenced you.
17The prosecution submitted that the only appropriate sentence for this offending was one of immediate imprisonment, given the paramountcy in this context of the need for general deterrence, and given your history, for specific deterrence, denunciation and just punishment.
18The offences were committed late at night, against members of the community going about their work duties, alone and vulnerable, and must have been terrifying to them.
19I note that after the plea hearing, the prosecution sent in an undated victim impact statement of the victim of the armed robbery committed at Doncaster for tender, and this was not objected to. The statement makes it clear that the victim found the event frightening, saw doctors about his concerns, and decided to cease working at that site and moved to another branch. The indication affected him in financial and psychological terms.
20It was submitted, given your aggressive tone to the victims, the threats you made and the waving around of the cleaver in the second armed robbery, that the offending is not at the lowest end of the scale, but in the middle of the range.
21In relation to re-sentencing on the original offence of recklessly cause serious injury, although it was conceded that it was a case of excessive self-defence, the prosecution noted that the victim suffered some permanent effects from having part of his ear bitten off.
22It was conceded that you are relatively young however, that your prospects of rehabilitation in the light of your offending, and your lack of compliance with the Community Corrections Order, would have to be regarded as very guarded.
23It was submitted that although the two further offences were committed over a weekend, some cumulation was necessary to reflect the fact of two distinct offences.
24It was conceded that totality was a relevant consideration.
25In relation to the armed robberies, your counsel conceded the seriousness of this kind of offending committed against soft targets, but submitted that it was not the worst example of this kind of offending.
26Your counsel relied on the forensic psychological report of David Ball, dated 11 February 2006, who noted that you told him that in recent years you had gone from abstinence in relation to drugs and alcohol, to using alcohol, cannabis and ice; that you had used all three at the time of the armed robberies and was spending all your money on drugs.
27He concluded that based on your self-report at the time of offending, you would have been diagnosed with severe alcohol, cannabis and stimulant use disorders, and that you explained your offending in this context and in the context of association with negative peers. He noted that you are in early remission, due to being in a controlled environment.
28You have told your counsel that you are grateful to have been in custody, so that you could cease abusing drugs and alcohol; that while there you have reconnected with your religion; expressed remorse for your offending; and expressed an intention to use your time in custody to participate in programs which will assist you in the community once released.
29You have completed a drug and alcohol programs and five sections of an IT course.
30He noted that you are anxious about your future because you have no family here, or I should say, little family here, and may be deported, depending on the length of any custodial sentence imposed.
31It was submitted on your behalf that while you appeared to be a young man on a solid life path, in spite of your difficult childhood and your subsequent isolation in Australia, the stability of your life was shattered when you started taking drugs and alcohol and became addicted to ice. You lost your driver's and security licences, were living on benefits, and spending your money on drugs. Your further offending occurred in this context.
32He acknowledged that your offending is serious and warrants a sentence of immediate imprisonment; that your prospects of rehabilitation are guarded; and that there must be some cumulation in sentences to reflect the two armed robberies.
33
He conceded that the further offending occurred while you were on a Community Corrections Order and that you also breached the order by
non-compliance. Through him you admitted the breach of the Community Corrections Order, as I have noted.
34He submitted that your entire course of conduct in failing to comply with that Community Corrections Order, and in committing further offences, was dictated by the fact of your drug addiction.
35
Given that you are relatively young, have reconnected with your religion, and are not taking drugs anymore, he submitted that the principle of totality was important and that the ultimate sentence should not be crushing, although as
I said, he conceded that the imposition of a further term of imprisonment was appropriate.
36I accept the matters put on your behalf by your counsel. It is very unfortunate that having learned English, obtained your driver's and security licences, and some solid employment opportunities, your downfall was brought about by your introduction to drugs and alcohol and your subsequent addiction to ice.
37I accept that you are remorseful; that whilst in prison you have abstained from drugs and alcohol, and reconnected with your religion, and are intending to undertake programs which will help you upon release.
38
I note that your time in detention thus far has been in lockdown conditions,
22 hours per day, seven days per week, and that you have therefore had difficulty engaging in courses, although you have managed to do some sessions.
39An aggravating feature of your conduct is that committed the armed robberies while on a Community Corrections Order, in respect of a charge of recklessly cause serious injury.
40I also note that the second armed robbery involved more aggression on your part, yelling at the victim, banging the cleaver on the counter, leaning on the counter, waving the cleaver around, and more serious threats to the victim, threatening to hurt his head and later to kill him. That was the case in the first armed robbery.
41I consider that your offending is not at the lowest level of seriousness, but somewhere below mid-range.
42You committed the offences against soft targets, individuals alone in stores late at night, going about their daily business, being confronted by a person wielding a knife and/or a cleaver, who threatens physical harm and makes aggressive demands for money, is a terrifying experience for the victims. And of course you already had committed the offence of recklessly cause serious injury.
43I accept that you pleaded guilty to the two counts of armed robbery at the earliest opportunity; that there is real utility in your plea; that you have spared the State the inconvenience and expense of a trial; and importantly, you have spared the victims of the armed robberies the further trauma of having to come to court and give evidence on your trial. I accept that you have thereby facilitated justice and I have discounted your sentence accordingly. In addition, I accept that your plea indicates genuine remorse.
44The principles of general and specific deterrence, just punishment and denunciation, loom large in this case. Parliament has imposed a maximum sentence of 25 years' imprisonment for the offence of armed robbery. A sentence for armed robbery must be of sufficient measure to adequately deter those within the community who might think of acting as you did.
45Specific deterrence is a very real consideration for you as well, given your prior violent offending. And the protection of the community is also relevant consideration. In addition, you failed to engage almost completely with every condition of the Community Corrections Order I imposed upon you.
46
In re-sentencing you in relation to the offence of recklessly cause serious injury, I note that your plea of guilty was not made at the earliest opportunity, but on the second day of trial, but nonetheless warrants a discount; and
I accept that it was a case of excessive self-defence on your part, although
I note that the victim suffered some permanent effects, as I said, from having part of his ear bitten off.
47I am mindful, however, that as a young man from a disadvantage background in Iraq who arrived here alone as a refugee at the age of 17 with no English and almost no social supports, apart from your cousin, you made a good start here. You learned English, obtained your driver's and security licences, and obtained solid employment in the security industry in a number of States. Sadly you fell into the grips of ice addiction when you worked in nightclub security in Melbourne and this addiction has been your downfall.
48You are still a relatively young man and I consider that provided you abstain from drug and alcohol use, you have reasonable prospects of rehabilitation. Nevertheless, I agree with counsel on both sides that in all the circumstances, taking into account your plea of guilty and the principle of totality, the only appropriate disposition overall is one of a further term of imprisonment.
49I sentence you as follows. Would you please stand.
50
On the first count of armed robbery, to which you have pleaded guilty,
I sentence you to three years' imprisonment.
51
On the second count of armed robbery, to which you have pleaded guilty,
I sentence you to three years' imprisonment.
52One year of the sentence on Count 2 is to be served cumulatively upon the sentence on Count 1.
53In relation to the breach of Community Corrections Order, I find the breach proven, cancel the Community Corrections Order, and make no further order.
54
In re-sentencing you for the offence of recklessly cause serious injury,
I impose a sentence of six months' imprisonment, and I direct that this sentence be served cumulatively upon other sentences imposed today.
55
The total effective sentence is that of four and a half years'. I impose a
non-parole period of three years'.
56I declare that, pursuant to s.6AAA of the Sentencing Act, that but for you plea of guilty to the charges of armed robbery, I would have sentenced you on those charges to a total effective sentence of six years' imprisonment, to serve four years'.
57I make a declaration of pre-sentence detention of 186 days, pursuant to the relevant section of the Sentencing Act, and I declare that this be recorded in the records of the court.
58Are there any other matters?
59COUNSEL: No, Your Honour.
60HER HONOUR: All right.
61COUNSEL: As Your Honour pleases.
62HER HONOUR: Thank you. Perhaps I can - do you want a bit of time?
63MR GUGGENHEIMER: I will go down and see Mr Al Badri in the cells, Your Honour.
64HER HONOUR: All right. All right, so shall we have him - - -
65MR GUGGENHEIMER: Explain everything in detail to him.
66HER HONOUR: I just want him to have the benefit of the interpreter. Perhaps I will just adjourn. We have a jury - - -
67MR GUGGENHEIMER: As I indicated, Your Honour, his English is really quite good.
68HER HONOUR: All right.
69MR GUGGENHEIMER: It is just more difficult to say - sufficient for me to communicate what I need to, Your Honour.
70HER HONOUR: All right. Mr Al Badri, you will be removed now, thank you. Thank you Madam Interpreter. Perhaps you can take his - if it is his relative with you, if that is what he wants.
71MR GUGGENHEIMER: Yes, Your Honour, I will.
72HER HONOUR: All right. Thank you Madam Interpreter.
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