Director of Public Prosecutions v Alhaj
[2021] VCC 485
•13 April 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01001
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SILMAN ALHAJ |
---
JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 13 April 2021 |
CASE MAY BE CITED AS: | DPP v Alhaj |
MEDIUM NEUTRAL CITATION: | [2021] VCC 485 |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms V. Mellios | |
For the Accused | Mr D. Cole |
HIS HONOUR:
1Mr Alhaj, I am going to impose a sentence on you a total effective sentence of five years' imprisonment but set a minimum term of two years before eligibility for parole and declare that 404 days. I told you that now so that you do not have to know what your fate is. I would ask you to listen to my reasons for that sentence which will take 15 or 20 minutes.
2Silman Alhaj, you are to be sentenced for one charge of attempted armed robbery, one charge of reckless conduct endangering life and two charges of assault. The respective maximum sentences are 20, 10 and five years' imprisonment. You are also to be sentenced for the summary offence of committing an indictable offence on bail. The maximum sentence is three months' imprisonment.
3You pleaded guilty before me on 1 December 2020. Because of injury suffered by you in the offending, you were not interviewed by police. At committal in
August 2020, no witnesses were called. As I best understand, the single issue raised was whether you voluntarily, recklessly or intentionally discharged the firearm you used in the offending. You entered a plea of guilty after the committal. The matter was first listed for plea hearing at this court in November of 2020.4You receive the benefit of what is conceded to be an early plea of guilty. That plea has facilitated the interests of justice, accepted responsibility and expressed remorse.
5At the ultimate plea hearing, which ran on 1 December 2020 and 30 March 2021, Ms Sargeant for the Crown tendered a written Crown opening, CCTV footage of your offences and the victim impact statement of Dechun Chen.
Mr Dunn QC for you tendered the forensic psychological report of Luke Armstrong, dated 26 November 2020. Both counsel provided written submissions on sentence. Mr Dunn provided a chronology of your life and the proceeding.6On 1 December, I requested reports under s.80 of the Sentencing Act. I have now received a statement of intellectual disability, a disability overview report and justice plan, both dated 4 March, by Disability Justice coordinator Elise Baird.
7The circumstances of offending are set out in the tendered Crown opening which is Exhibit A. My own summary may therefore be shorter. It is also informed by matters put on your behalf, not challenged by the Crown.
8You suffer intellectual disability. There has been a measure of 'general ability index' score at 64. Recent target group assessment, which led to the
28 January 2021 statement of intellectual disability, found mild to moderate range of disability. In my experience, assessment of moderate intellectual disability is not a common circumstance in the criminal courts.9On 1 March 2020, at about 5.40 pm, you and three co-offenders had driven to the IGA grocery store in Hadfield, a north-western suburb of Melbourne. The business was owned and run by the Chen family. They also lived at the rear of it. Present at the premises were Zi Quang Chen, his wife Li Ping Chen and their daughter Xiaojuanh Huan Chen; also, their son Dechun Chen, his wife and two young children.
10It seems decided that you would enter the store, intending to rob there, to be followed in support by two of the others. You carried a loaded Ruger revolver. All three of you wore balaclavas and gloves. You pointed the gun at Zi Quang Chen and threatened him. The Chan family responded in a remarkably courageous way. Zi Chen took up a metal rod. Dechun Chen came to his father's assistance. The other two men left the store. At about this point, you discharged the gun. You were tackled to the ground. You and Dechun Chen struggled there. The gun discharged again. Dechun Chen bit you hard on the lip. His mother was striking you with a broom, his father with a metal rod. You let go of the weapon. During this, your three co-offenders came in and out of the store a number of times. They threw items from the shelves at Dechun Chen and his father. Xi Chen, a grandfather aged 53, confronted them and they fled. He struck you again several times. You had been subdued and were held for the police, bleeding badly from the lip.
11As stated, CCTV footage was tendered and viewed in court. Dechun Chen was cut to his arm which required stitches. This is the assault charge at Charge 4. Charge 3, also assault, is the original pointing of the gun and threat to Zi Chen. That you discharged the gun makes out the reckless conduct charge. You suffered a serious injury to your lip and were taken to the Royal Melbourne Hospital under police guard. You were not interviewed. At the time of offending, you were on bail for unrelated matters. This is the summary offence before me.
12The revolver was taken by police, the hammer found at the scene to be in the cocked position. Later examination revealed that it had been fired twice. Examination of the scene indicated that a bullet had struck at the end of an aisle walkway, about 2.6 metres above the floor, and a second bullet within shelving at the top and near the front counter of the store.
13One of your co-offenders was identified. He is named Taha. He pleaded guilty to attempted armed robbery at the Magistrates' Court and was sentenced to 92 days imprisonment and a community corrections order.
14The victim impact statement of Dechun Chen is, if anything, an understated account of the impacts of your offending upon him and the family. His nervous anxiety affects his performance and engagement with customers at the business. The wearing of masks, because of COVID-19, badly affects him and his family at the store. His sleep is affected. He worries about his home (at which, essentially, you offended against these people) and his family. The store is no longer open late. There have been costly upgrades to security. Attached invoices amount to almost $20,000. Family life, particularly as to his children, is diminished. For example, Dechun Chen states that he does not take them to the park or zoo. They do not attend childcare. He does not walk them to school.
15The brave reaction of this family to your attack upon them should not disguise what must have been a dreadful experience for them. In a way, one can see fear in their frenetic assaults upon you. It is important to recognise that it was also their home, children and grandchildren you were placing in that dreadful danger. I take into account the victim impact you have caused.
16You are a 23 year old man presently awaiting this sentence in remand custody. You were 22 at the time of offending. You were born in Australia, of Lebanese descent. It is a large family of 10 children. You are the second born. At birth you had skull deformity and scarring. As stated, you suffer intellectual disability which has badly affected your upbringing. There was also alcoholism and physical violence within the family. Schooling was not successful. Unsurprisingly, you struggled badly academically and were bullied because of your disability and appearance. You do not read or write.
17You left at year 8 and began to work with your brother as a bricklayer. You were highly dependent on him. This included personal care to get out of bed, arrange meals and to travel to worksites. However, you were hardworking and able at the physical side. Although in many ways functionally dependent on your brother, you coped through the ages 14-18. Your mother was also close and protective of you.
18You declined after beginning to use cannabis at that age of 18. It developed into heavy use. Relationships within your family were damaged. Further, you began to use ice amphetamine, at 19 or 20. You came to use that daily, combined with Xanax to assist withdrawal. You stopped working in a consistent way. Relationships with your family further deteriorated. You developed psychotic symptoms of auditory hallucinations and paranoid thinking.
19Forensic psychologist Luke Armstrong diagnosis drug induced psychosis; but states the possibility of schizophrenia in the future if there is continued drug abuse. Your symptoms have subsided in remand, which has been since arrest in March 2020. Mr Armstrong states mild to moderate intellectual disability and stimulant use disorder, that in early emission, given you do not use in prison. He also describes features of personality disturbance and post-traumatic stress disorder arising out of your childhood trauma and experiences.
20The decline into drug use is reflected in your criminal record; but also other events arising out of your involvement in that milieu. Your criminal history prior to this offending is limited. There is one court appearance in April 2019. You were convicted and fined at the Magistrates' Court for possessing cannabis and driving whilst disqualified. There are other pending charges; that is, for possession of proceeds of crime, of cannabis and of an offensive or prescribed weapon. I am told that they are to be heard on 11 June this year. That was the bail you breached on the summary offence before me. In 2018, in the context of a broken relationship but also drug use, you crashed a motor vehicle at high speed. In 2019, you and another brother, also using drugs, were stabbed during a drug deal. At one time, your family home was the target of a drive-by shooting and petrol bomb. You were using and affected by drugs at the time of offending. You state no clear recollection of it.
21Armed robbery is a serious crime. Your attempt at it features that you not only possessed and presented a loaded gun; but also discharged it (Charge 2 on the presentment). Accordingly, this was serious, dangerous offending. Its victim impact should not be undervalued because of the brave response of the family, of victims. A further adverse feature is that you committed these offences whilst on bail.
22Such circumstances make important sentencing considerations and purposes of moral culpability, deterrence - that is, both general and specific deterrence - condemnation of the offending and proportionate punishment of it. In your case, community protection is important. There must be a sentence of imprisonment of some substantial length.
23However, there are, here, important moderating factors, mainly personal to you, which should go to reduce that length of sentence; that is, compared to what the objective, serious circumstances of offending would otherwise require. I have decided that these moderating factors should particularly affect the minimum term I set. They include the following.
241. Your plea of guilty and cooperation in the proceeding.
252. Your personal history and circumstances of your life. This includes consideration of your disability, the trauma and disadvantage of your upbringing and, to some extent, your other mental health conditions. Your decline into drug use and dependence should be seen in the context of your intellectual impairment.
263. The principles under Verdins and like cases become relevant because of your intellectual disability. The report of Mr Armstrong (as also reflected in the Disability Services overview report of Elise Baird) states impact of it upon reduced social skills and judgment, your self-control and making considered, well-judged choices. You are prone to being easily exploited and led by more sophisticated offenders. As I have stated, mild to moderate impairment is a substantial one.
27That you were drug affected is properly raised on the question of Verdins. However, I see it as unrealistic not to view your substantial disability as playing a role to diminish your judgment and moral culpability. Other aspects of Verdins are relevant. You are a less suitable vehicle for application of general deterrence. Although you appear to be coping positively with remand in custody, I find it very likely that a person with your impairment will find imprisonment more difficult and for example, be vulnerable to exploitation. Further, that impairment should be seen as an important, moderating factor in considering the general personal context for your sentence. The discretion of mercy is legitimately raised.
284. Your relative youth and, related to that, the importance of rehabilitation. Your prospects for that cannot be stated as presently high. However, they should not be discounted. You are still only 23, you have family support and have shown, despite your disadvantages, a capacity to function positively with good support and controls. The report of Disability Justice coordinator Elise Baird and her subsequent advice to me at the 30 March further plea hearing, indicates that Disability Services supports, including possible NDIS assistance, can be made available to you on parole release from prison.
295. The principle of parity was not specifically relied upon before me. The sentence of your co-offender, Taha, is much lesser than yours will be. The differences are, on one level, clearly seen. The discharge of your gun adds very considerable seriousness to your offending. At another level, it is hard to resist the proposition that you were chosen or volunteered to go in in at least the context of your intellectual disadvantage. However, I should avoid that speculation. Taha received, in my view, a very light sentence. The circumstances put to that court are not available to me.
306. It is a relevant but ultimately very minor consideration that you received a significant injury in the offending. It was not put that there were ongoing physical effects.
31The only sensible available sentence is that of a head sentence with minimum term. The shots fired make that clear. However, the moderating factors I have identified should impact considerably on what head and particularly minimum term I set. I find that this is, in a significant way, consistent with the sentencing purpose of community protection. Your intellectual disability will continue and presents an ongoing threat to the community if you return to drug use and its environment. Having heard from Ms Baird on 30 March, my expectation is that, given now eligibility for disability services, you will be given that support, that is, it will be available whilst in prison. Further, the justice plan provided to this court can be available as a support or condition of parole release. Of course, release on parole and conditions of that remain a matter for the Adult Parole Board, not me. However, it appears clear to me that the community interest lies in controlled, supervised and appropriately supported release into the community when that time comes.
32Having considered what I see to be the relevant and competing matters, I sentence you as follows. On Charge 1, attempted armed robbery, you are sentenced to three-and-a-half years' imprisonment; on Charge 2 reckless conduct endangering life, to three years imprisonment; on Charges 3 and 4, assaults, four months imprisonment; on the summary offence, committing an indictable offence on bail, one month imprisonment. I direct that 18 months of the sentence for Charge 2 be served cumulatively on the sentence for Charge 1. That is a total effective sentence of five years imprisonment. I set a minimum term of two years before eligibility for parole. Under s.18 I declare 404 days of presentence detention already served.
33Had you not pleaded guilty, I would have imposed a sentence of seven years with a minimum term of four years imprisonment.
- - -
HIS HONOUR: Other than s.6AAA indication, are there any other matters I need
to - - -
MS MELLIOS: Only the firearm forfeiture order, Your Honour, that's sought by the Crown.
HIS HONOUR: Yes, well, the firearm will be forfeited. I'll sign that when it comes up to me.
MS MELLIOS: Thank you, Your Honour.
HIS HONOUR: All right, now, is that all I need to do?
MS MELLIOS: Yes, Your Honour.
MR COLE: Yes, Your Honour. As Your Honour pleases.
MS MELLIOS: As Your Honour pleases.
HIS HONOUR: All right. If you get parole, my hope is that you return to live with your family. Listen to the people who do care about you and obey all of the rules of parole which will be probably quite long. If you don't obey all the rules of parole, you'll have to go back to prison. Do you understand that?
OFFENDER: Yes.
HIS HONOUR: Yes, all right.
- - -
0
0
0