Director of Public Prosecutions v Al Hasnawi
[2021] VCC 1689
•27 October 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00789
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EHSAN AL HASNAWI |
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JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 July 2021, 22 July 2021, 12 October 2021 | |
DATE OF SENTENCE: | 27 October 2021 | |
CASE MAY BE CITED AS: | DPP v Al Hasnawi | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1689 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Robbery
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen [2013] HCA 37; Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342
Sentence: 12-month community corrections order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Kiapekos | Office of Public Prosecutions |
| For the Accused | Mr D. McGlone | Mr D. McGlone Adrian Paull Criminal Lawyers |
HIS HONOUR:
1Ehsan Al Hasnawi, you pleaded guilty to two charges of robbery and two summary offences relating to breaches of bail. It is important to state in this case that you are to be sentenced for the crime of robbery, not some other more serious crime. The Director of Public Prosecutions has indicted you on the charges of robbery and accepts that you committed those offences, notwithstanding the pleas of guilty have been accepted from four other young co-accused for two offences of armed robbery.
2The crimes occurred in the early hours of 1 and 6 March 2020. On these occasions, four young co-accused from different numbers robbed the same service station at Bannockburn. On the first occasion, one co-accused was armed with a knife. On the second occasion, two accused were armed with knives. It is alleged and you accept that you are guilty of the two charges of robbery, on the basis of complicity, as that is expressed in s 323 of the Crimes Act 1958 (Vic).
3That section of the Crimes Act 1958 (Vic) establishes that an accused such as you is guilty of an offence by assisting, encouraging, or directing the commission of the offences. As the detailed facts relied on by the prosecution makes it clear, your role mainly encompassed encouraging.
4The facts were set out in a summary of evidence tendered on the plea. In brief terms, on 1 March 2020 you were with four younger men in Bannockburn, a small town outside Geelong. Around 3 am, you and another co-accused went to the service station to scope the scene for the purposes of the robbery. You returned to the group. At 4 am, three masked offenders forced the door of the service station, two went to the counter while the third remained at the door as the lookout. One of the young men was armed with a knife. He demanded money, ultimately getting cash, cigarettes, and lighters.
5
After two minutes or so committing the armed robbery, the group left and as arranged, met up with you and another co-accused. You received one cigarette from all that was stolen. What is accepted is you were not aware that the
co-accused had the knife that was used.
6Five days later on 6 March 2020, you were with three of the co-accused who at 1 am again forced entry into the same service station. On this occasion, two of the co-accused were armed and brandished the knives in the robbery of the service station attendant, again taking cash and cigarettes. Efforts were made on this occasion to open a safe but that failed. You had driven the co-accused to the area of the service station on this occasion, encouraged them to commit that robbery just as they had done on 1 March 2020. After the robbery, you met up with them and divided the proceeds of the robbery. Again, it is not alleged that you were aware of the weapons.
7Robberies late at night upon soft targets such as service stations with just one attendant committed by masked men in company are serious and frightening crimes. It can be assumed that the ordeal affected the victims. Ordinarily, the need for deterrence and denunciation would see the offenders at risk of imprisonment. I do not overlook the gravity of these crimes, however, there are a significant number of factors that mean that, in imposing punishment, I must consider a sentence other than one of imprisonment.
8I will outline those factors which arise from aspects of your offending and penalties imposed on the co-accused, and a number of factors that arise from your personal circumstances.
9To elaborate on aspects of your offending, first it was, as I have emphasised, encouraging the robbery not armed robbery. The production of frightening weapons seriously elevates the co-accused's crimes from yours. Second, the level of your culpability as encouraging and assisting is not said to be as a central organiser. What you did facilitated your crimes but as is shown from what you got from the robberies, one cigarette from the first robbery and some of the proceeds from the second, this is indicative of your lower level in the group's offending.
10I say this well mindful that you were older than the co-accused, three of whom were children dealt with in the Children's Court and the fourth was just old enough to be dealt with by the County Court. I will say more of the penalties imposed on the co-accused later.
11
I need to turn to some of your personal circumstances to further understand or explain why you were involved in these crimes at all. You were at the time
23 years old. There is a psychological report prepared by Ms Cidoni tendered on your plea, together with submissions made by your counsel. It is clear that you are an immature now 24-year-old with a low intellect bordering on an intellectual disability.
12You were, in March of 2020, separated from your close family who resided in Darwin where you had lived since migrating from Iraq at the age of 11. As to your life in Iraq, I will refer to this in dealing with your mental health, especially your level of anxiety in due course. However, when you and your family arrived as refugees in Darwin, the family settled and prospered. You struggled at school due to your intellect and your lack of English language skills. From school, you moved on to unskilled work.
13The most important event in your post-school life was at the age of 18 or thereabouts, meeting and forming a long-term relationship with a young woman who was originally from Victoria. You were, as I note, still a teenager at the time. You followed her back to Melbourne after seven or so months together in Darwin. You and she had a child. The relationship faltered and you returned to your family in Darwin. You remained supportive of her and your child. So much so that when her chronic illness, bone disease got to the point of her being hospitalised, you came back to Victoria to help care for the child.
14You lived with your ex-partner's mother in Bannockburn, and that explains why you were in the town at the time of these crimes. You have no other connections there in Bannockburn, or indeed, in Victoria. You were at the time quite alone and isolated. You started to drink and use cannabis, and wander around the town late at night. That is how you met the co-accused who were younger locals. You were in a sense seeking some company and thus hung around with them at the football ground and other areas. In this context, the idea was hatched by the group of robbing the local service station.
15Your isolation, immaturity and low intellect explains why you got involved. You had to that point, not been in any trouble or any trouble of any seriousness. That is an important factor tending towards giving you chance to reform; that is, to return to your previous lawful ways.
16
Another factor that must be considered are the penalties imposed on the
co-accused for the more serious crimes of armed robbery. As noted, three were dealt with in the Children's Court and thus, comparisons or parities, parity by and large falls away. It is of importance that the co-accused made statements to the police implicating you as assisting, and thus assisted the prosecution to some extent. That is a mitigatory factor in their favour.
17That said, it is of note that of those in the Children's Court, two are punished by being placed on good behaviour bonds, and another went by way of a diversion. The adult co-accused is more relevant. He was dealt with by a very experienced County Court judge, who placed him on a Community Corrections order for two armed robberies. The question of parity cannot be overlooked with respect to that co-accused. While he was younger and had made a statement, he did face armed robbery and was directly involved in the armed robbery. By contrast, you face only two robberies as I have said. This issue of the adult co-accused being placed on a Community Corrections order was said by the prosecution, as well as your counsel, to be a matter of importance in fixing your sentence.
18Another factor personal to you is the extremely difficult childhood you spent in war-torn Iraq. You were the witness to violence, cruelty, and death. Your family circumstances involved struggles to survive. In very recent days, the Court of Appeal has again reiterated the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 regarding deprivation in an accused's upbringing are enduring and must be considered and given mitigatory effect. That is the case here, as your experience has left a mark in the form of a severe anxiety disorder. This combined with your borderline intellect adds mitigatory weight in the sentencing synthesis.
19I have mentioned your lack of prior criminal history which, in the circumstances of your relatively young age, means I should give emphasis to your rehabilitation. Other sentencing purposes such as denunciation and deterrence remain important but establishing conditions to facilitate your reform ought to be prominent. If you are reformed, the community is the better for it.
20While awaiting resolution of this case, you remained isolated from your family. You do want to relocate to Darwin. These proceedings have prevented that, together with the circumstances of the pandemic. You now live in suburban Melbourne without work. Things are likely to be much more stable and positive if you are back with your family in Darwin.
21You have pleaded guilty in circumstances where jury trials are suspended, and the criminal justice system is in crisis, with long backlogs. The Court of Appeal in the case of Worboyes v The Queen [2021] VSCA 169 made clear that more substantial benefits for pleas of guilty in these times are warranted, and ought be calculated so that it is palpable to an accused that a plea has or will result in a significantly lower sentence than would have been the case prior to the pandemic. I must also acknowledge that the punishment of last resort, that is gaol, is much more onerous now in the pandemic circumstances than in the past.
22Your plea of guilty came quickly after the prosecution case became one of robbery and not armed robbery and thus it is an early plea, in itself an important mitigatory factor. The earlier important Court of Appeal decision of Boulton v The Queen [2014] VSCA 342 (‘Boulton’) establishes that the current community corrections order options changed the sentencing landscape. This is of great importance in pandemic times because of the more onerous conditions of prison. In Boulton, the Court of Appeal made it clear that Community Corrections orders were appropriate for serious crimes, indeed, crimes more serious than robbery. Community corrections orders are not soft options and involve both punishment and messages of deterrence, both generally and specifically. Your counsel urged that I impose a community corrections order, though such an order would delay your reunion with your family.
23
Importantly, the prosecution submitted that, in all the circumstances, a community corrections order was within range. I had you assessed as I am required to by the Sentencing Act 1991 (Vic). The assessor ultimately found that you were not suitable, though the basis for this so far as I could discern seemed to be limited to what the assessor considered was your reluctance to discuss the crimes.
I have carefully considered the assessment together with the assessment of the mental health practitioner who provided a helpful report as to your mental health.
24
In my opinion, it is important that you engage in structured programs and do unpaid work as part of a process of simultaneous punishment and rehabilitation.
I consider that a single community corrections order is the just and appropriate sentence. I have come to this view because all sentencing purposes can be met by a community corrections order. Thus, by operation of the Sentencing Act 1991 (Vic) I cannot move to impose imprisonment and no one argues that I should.
25Mr Al Hasnawi, for committing the two charges of robbery, I impose a 12-month community corrections order with conviction. There will be a number of standard conditions, there are a number of program conditions that apply to you.
26Importantly, you have to do 100 hours of unpaid work to be performed in the first six months. You are to be assessed and treated for mental health problems. All the hours that you attend for mental health treatment and assessment can be counted as part of the unpaid work. Further, you must be under supervision. That supervision may continue if you get that unpaid work done in the first six months and are able to return to Darwin. The supervision may be transferred, as with mental health condition to the equivalent Office of Corrections in the Northern Territory. That is a matter that you need to raise with the office, with the Community Corrections staff.
27For the two bail offences I have considered those. They are proven but I impose no further order.
28Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed 11 months' imprisonment, together with a two-year Community Corrections order. Are there any other orders to be made?
29MS KIAPEKOS: There was just a forfeiture order, Your Honour.
30HIS HONOUR: Yes, certainly. I make that order. There was no pre-sentence detention to be declared, was there?
31MS KIAPEKOS: There was just one day.
32
HIS HONOUR: Yes, I am not proposing any form of imprisonment in counting a day. That is just a day. Is there anything else that is required before I speak to
Mr Al Hasnawi about consenting to this?
33MS KIAPEKOS: No, Your Honour.
34HIS HONOUR: No. Mr Al Hasnawi, can you listen in carefully?
35OFFENDER: Yes.
36HIS HONOUR: You will need to respond. Now, normally if you were in court, I would go over all the conditions of the Community Corrections order, and your lawyer would have a document and discuss that with the lawyer briefly. If you consented to doing the Community Corrections order, you would sign the document. That cannot happen, but I can take your oral consent, you telling me of your consent as an equivalent. So, I just need to run through what is required.
37You will be placed on a Community Corrections order. Conditions that apply to every Community Corrections order, and they certainly apply to you, firstly are that you must not commit another offence for which you could be imprisoned in the period of the Community Corrections order. That is 12 months. So, simply put, do not commit any offence. If you do, you breach the order and you come back before me, and I will not have the same merciful approach to you, if you breach the order by committing other offences.
38Then there are a number of further conditions that are really about cooperating. You have to tell the Office of Corrections if you change your address, where you are living. You have to tell the Office of Corrections of any employment, or if you change your employment. You have to report to the Office of Corrections and that could be done by telephone, as I understand it at the moment, within two working days of today. The Office of Corrections that you have to deal with, I think is at Coolaroo. In any event, we will get that clarified. But you need to be in touch with them to start the order.
39They may need to engage in-person, that is, you turn up because they need to know who you are, there might be photographs or something like that. Just cooperate with all that. They may have other lawful directions that they give to you, and you have got to comply and follow those directions. All right, so they are the conditions that apply to everyone.
40
The other conditions of this order that apply just to you, is that you have to do 100 hours of unpaid community work and do that within the first six months. As I understand it, you cannot transfer this unpaid work component to the Northern Territory. You have to do that here, and so you should as punishment. You do each and every hour, you turn up when you are required to turn up. Stay for the complete period of time, do every hour. If you breach this order by not doing every hour, again, that will be viewed by me as very serious. So, do the
100 hours in the first six months.
41You also have to engage with your general practitioner in mental health assessments, to get help for your anxiety condition. So, that is necessary, that you work with the Office of Corrections to get a mental health plan. If you go for treatment for your mental health problems, that will be counted as hours and subtracted from the 100 hours of unpaid work.
42You must be under supervision as well. Telephone calls have to be made, or appointments. You have to turn up, they have got to monitor how you are going. All right.
43Now, do you understand all that, Mr AL Hasnawi?
44OFFENDER: Yes, Your Honour.
45HIS HONOUR: Do you consent to doing the community corrections order?
46OFFENDER: Yes.
47HIS HONOUR: Thank you. All right, well a document will be noted in that form, I will sign it, and it will be forwarded to the Office of Corrections, and to your lawyers, and the Office of Public Prosecutions. I cannot make it any clearer, do the order and as soon as you are able to, with arrangements with the Office of Corrections, get back to your family in the Northern Territory and stay out of trouble. Anything further?
48MS KIAPEKOS: No, Your Honour.
49MR McGLONE: No, Your Honour.
50HIS HONOUR: Thank you. I have got to remain on the link with my staff to do what has to be done after this, so you head away.
51MR McGLONE: Thank you, Your Honour.
52HIS HONOUR: Thank you for you and Mr Nibbs’ considerable assistance in resolving this matter and bringing forward the plea. Thank you.
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