Director of Public Prosecutions v Ali

[2019] VCC 1503

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01202

DIRECTOR OF PUBLIC PROSECUTIONS

v

KHALID ALI

---

JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2019
DATE OF SENTENCE:	16 September 2019
CASE MAY BE CITED AS:	DPP v Ali
MEDIUM NEUTRAL CITATION:	[2019] VCC 1503

REASONS FOR SENTENCE

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Bhai	OPP
For the Accused	Ms C. Blakeney	Greg Thomas Barristers and Solicitors

HER HONOUR:

1Khalid Ali, you have pleaded guilty to one charge of armed robbery.  The maximum penalty for that offence is 25 years' imprisonment.  You have further consented to the uplifting of a summary charge, being Charge 2, resisting an emergency worker on duty.  The maximum penalty for that offence is six months' imprisonment.

2The facts which found your offending are set out in the prosecution opening dated 5 August 2019.  At about 9.30 pm on Monday, 18 March 2019 the victim got off a train at Albion railway station and began walking home.  You were at that time sitting in a park with another man.  As the victim approached the park he heard a male voice shouting but kept walking, trying to ignore it.

3You walked across the road and approached the victim.  You said, 'We're good, we're good.  We are brothers'.  The victim was by this stage in fear and walked in the opposite direction.  You approached him from behind and placed your arm over his shoulder.  The victim did not say anything but noted that he could smell alcohol on your breath.  You said to the victim, 'You can go this way'.

4The victim knelt down and tied his shoelace and you kept your arm upon him.   He then stood up, turned around and commenced trying to walk to his home.  You grabbed the back of the victim's neck and pressed a sharp object against the side of his neck.  You then demanded money, saying, 'Give me your money'.  The victim, in fear, took his wallet from his pocket and opened it, showing you that there was no money.  You snatched the wallet.  The victim began walking quickly towards his home.  After he had taken about ten steps you shouted, 'Brother, brother, are you Muslim?'  The victim told you he was.  You asked him to swear that that was the case and said that you did not want to rob a Muslim.  You told him that you were upset because of the New Zealand incident.

5You then walked towards the victim and asked him his name.  He replied and you said, 'We'll see with your credit card'.  You opened his wallet and took out his debit card and you accused him of lying.  He told you to check his student identification and driver licence.  You then, for no discernible reason, held a knife towards the victim.  He was standing about a metre away and you were pointing it at his chest. 

6The victim ran to his house and called the police.  He provided a description of you. 

7You returned to the park where you had been with the other man.  Amongst other things, you said to that man, 'Wallet, wallet.  I have his wallet.  I got his wallet.  We are good'.

8The police arrived, observing you and noting you matched the description they had been given.  Police noted that you were unsteady on your feet and appeared to be intoxicated.  You were verbally aggressive to police, saying, 'What are you doing here?'.  You were informed that they were the police, at which time you were searched and the victim's wallet was located.  On the ground, about 1 or 2 metres from where you were initially seen, a ‘CAT’ branded open flick knife was found by the police. 

9You were arrested and cautioned.  You refused to give the police your name, replying, 'So my name is police.  That's all I'm giving you.  Fuck you'.  You were then asked to put your hands behind your back so you could be handcuffed.  You refused and again swore at the police.  You were placed on the ground and you were lashing out with your arms until some assistance was obtained from another officer.  It is this conduct, in its totality, which founds the summary charge of resisting an emergency worker on duty.

10You were conveyed to the Sunshine Police Station and at about 2 am, after four hours in the cells, you were deemed fit for interview.  You exercised your rights. 

11Any offence of this nature is serious.  It would have been terrifying for the victim knowing that you were intoxicated and armed.  The victim was vulnerable and properly described as a soft target, being alone on a street at night without ready access to assistance.  We all have a right to live and work in our community without being subjected to this kind of violence.  The message must be clear and consistent that condign punishment will result in appropriate circumstances, weighed, of course, with other relevant sentencing factors.  Whilst I accept that there was no long term planning as regards to this offending, the fact is you were armed.  You engaged in gratuitous threatening violence even after you had the victim's wallet.

12I received a victim impact statement dated 1 July 2019.  The victim says that this offending has changed his life.  He has been suffering from flashbacks and felt unable to continue with his education, which will result in him needing to both re-enrol and seek an extension on his visa.  He says, 'This incident has ruined me and my dreams of a good career in Australia'.

13You have one prior conviction on 22 June 2017 at the Melbourne Magistrates' Court.  You were convicted of two charges of possessing heroin, one charge of possessing cannabis, two charges of possessing a drug of dependence (not named), one charge of dealing with the proceeds of crime, one charge of committing an indictable offence on bail, one charge of retention of stolen goods, one charge of attempted robbery, one charge of attempted theft of a motor vehicle, one charge of failing to answer bail, and one charge of possession of prohibited weapon without approval.

14On all these charges you were placed on a Community Corrections order for
12 months with both work and treatment conditions.  You have breach proceedings outstanding in relation to that order.  You breached the conditions and committed a further, albeit fairly minor offence, of handling stolen alcohol, which I note occurred some 11 months into the order.  This breach, I have been informed, is listed at the Melbourne Magistrates' Court on 23 October of this year.

15You are now aged 21, having been born on 1 March 1998.  You were 21 at the date of this offending.  You were born in Carlton when your mother was aged 18 and initially resided with her and your younger sister.  You have had little to any contact with your father throughout your life. 

16Your young life was difficult.  Your mother often left you with others, including your grandmother and did not return for several days.  There was significant uncertainty.  In the end this led to DHHS intervention.

17When you were seven your mother repartnered and this resulted in DHHS seeking and gaining a permanent care order, placing you with your grandmother with whom you resided for some ten years until 2017, at which time she returned to Africa.  The period you resided with your grandmother was largely stable except for a short period when you resided with your aunt.  However, since your grandmother returned to Africa you have had no stable accommodation.  You described yourself as couch surfing.

18You have no ongoing contact with your sister, who is now aged 19 and living with an aunt.  You have no real ongoing contact with your mother, who has four young children.  You are not even sure if she was still with the man she repartnered with.  You have never had your own accommodation and had no significant relationships or offspring.

19As regards your education you attended Cambridge Primary School in Werribee and then Werribee Secondary College until Year 10.  You then attended Debney Park Secondary College where you completed Year 11.  You describe yourself as achieving at an average level but say you suffered from bullying.  Upon leaving school you commenced a painting and decorating certificate course for one year.  You worked part time as a painter to gain experience but this only lasted a few months.

20When your grandmother left Australia you had to move out of the home you had jointly occupied.  It was at this time that your alcohol and drug use significantly escalated. 

21As regards your substance abuse history, you report drinking alcohol from 16 and experimenting with cannabis from about the same age.  By 18 you were using Xanax.  You told your psychologist that you smoked heroin once but had never used an injectable substance.  Your real difficulty has been your consumption of ice from age 18.  You were combining it with Xanax and alcohol, at times consuming up to two bottles of spirits in one drinking episode.  Perhaps unsurprisingly, you report auditory hallucinations on ice and becoming excessively paranoid.  You report that you had been drinking spirits excessively, up to a bottle of whisky at the time leading up to this offending and your arrest.  In addition, you report using a gram of ice a day at this time.  You report being both intoxicated and drug affected at the time of this offending, which is consistent with the observations of the victim.  That is, of course, not in any sense mitigatory but does inform what is required to achieve rehabilitation.

22Ms Cidoni's report, which I will turn to in a moment, says that your use of ice and Xanax would have produced an altered state of consciousness and loss of contact with reality.  She notes that you reported some psychotic symptoms at that time under the influence of ice but further notes that these have mainly abated.

23Ms Cidoni opines that substance abuse disorder is the primary diagnosis and that it is now in forced remission, you being in a custodial setting.  She says she suspects that your mental health became increasingly compromised with your ongoing use, disturbing judgment and clear thinking and producing behaviour and psychological changes.  Ms Cidoni says that your capacity to think about your intended actions, to consider possible consequences and to exercise restraint would have been severely impaired.  In addition to Ms Cidoni's diagnosis of substance abuse disorder, she says that personality testing indicated high anxiety which might be a response to imprisonment.  She also notes your immaturity and mildly unstable mood with depression at one end and excitability in the form of hyper manic trends at the other.  She says you do not have any psychotic illness, that these are remnants of a drug induced state.

24Your remand on this matter is the longest period you have spent in custody.  You have completed a number of courses in relation to both vocational training and drug abuse.  Your situation upon your release is somewhat precarious in that you have no firm accommodation options.  I was told you hope to reside with an aunt and cousin and complete your training in painting and decorating.  You say you also wish to engage in drug and mental health treatment and then re-establish contact with your mother and sister.  Clearly, assistance and supervision is required within the community.

25You are still a youthful offender.  The community must maintain a real interest in your rehabilitation, as that is the community's best protection into the future.  You do not have an extensive criminal history and there was cause for some optimism given the likely deterrent effect of your first significant period in custody.  Nevertheless I think your prospects of rehabilitation remain guarded.  The real issue is, of course, your drug use.  The reality is in order to achieve rehabilitation you will need to demonstrate that you can remain drug free in the community.  I suspect there are some challenges in that regard and that you require assistance if rehabilitation is to be achieved.

26Your counsel points to a number of matters you are entitled to have taken into account in mitigation.  Firstly, a plea of guilty.  You entered your plea at an early stage.  You are entitled to the full benefit of such plea.  You have spared the witnesses the ordeal of giving evidence.  You have saved the community the time and expense of a trial.  You are entitled to have those matters taken into account in your favour and I so.

27I further take into account the contrition which I accept as being inherent in your plea.  I accept that your plea is properly used as evidence of remorse which you have not expressed to those who assessed you this day.  As I have already noted, you are a youthful offender and the usual effects of general deterrence are to be sensibly moderated giving greater weight to rehabilitation, and especially in light of your limited criminal history.

28As well as matters personal to you, to which I have referred, I must take into account other relevant sentencing considerations.  General deterrence is, in relation to this sort of offending, usually of considerable importance.  I must seek to deter not only you but others who would engage in like conduct.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  I must seek to deter you from future offending which can perhaps, as I have said, be given less weight in light of your limited history.

29These factors are all, of course, to be weighed in light of your status as a youthful offender.  Your counsel submits that a combined sentence of imprisonment and a Community Corrections order is within range.  The Crown concur but say that a further period of imprisonment in excess of time served is required.  As you are aware, I have had you assessed and you have been found suitable for a Community Corrections order.   In my view, there is no option but to impose a term of imprisonment.  I am, however, persuaded that it can properly be combined with a Community Corrections order.

30Stand up, please.

31On the charge of armed robbery you are convicted and sentenced to be imprisoned for 14 months, 182 days is reckoned as served. 

32You are thereafter placed on an 18 month Community Corrections order.  That order includes conditions that you comply with treatment and rehabilitation in relation to drugs, alcohol, mental health and programs to reduce reoffending.  You are to additionally be under the supervision of a Community Corrections officer.  I am not imposing any community work hours as the punitive component of sentence, in my view, will have been satisfied by the term of imprisonment. 

33On the summary charge you are convicted and fined $800.  I do not grant a stay given that you are in custody.  You should discuss with your counsel what your options are in that regard.

34Pursuant to s.6AAA of the Sentencing Act I direct it be noted in the records of the court that were it not for your plea of guilty I would have sentenced you to 36 months' imprisonment with a minimum of 20 months’.

35I make the forfeiture order in terms of the draft to which you have consented.  I make the - there is a disposal order too, Ms Bhai?

36MS BHAI:  Yes, there is, Your Honour.

37HER HONOUR: I make the disposal order in the terms of the draft to which you have consented and finally, pursuant to s.464ZF of the Crimes Act I make an order that you undergo a procedure for the taking of an intimate sample for placement on the database.  I inform you that police may use reasonable force to enable that procedure to be conducted.

38Very well, let us get those orders prepared.  I will find the ancillary orders and sign those.  You can have a seat for a moment, Mr Ali.  Yes, it will be reporting to Werribee within two days I believe but I will deal with that in the (indistinct).  Mr Tipstaff, would you hand the order to counsel?  Would you approach your client and have it signed, please?

39MS BLAKENEY:  Thank you, Your Honour.

40HER HONOUR:  Just show it to the prosecutor first to make sure it is right.  Could you stand again, please, Mr Ali?  Mr Ali, you understand that you are obliged to report to the Office of Corrections within two clear working days of you being released from custody.  The centre that you must report to was Werribee.  My understanding is that given that you are doing a further term in custody, Corrections will in fact be in contact with you, but even if they are not, they are not the people on the order.  You are.  So once you are released from custody within two working days you have to have reported at Werribee Office of Corrections, all right.  If there is any confusion about that just speak to your lawyer and she will explain to you what your obligations are.

41I need to tell you that if you breach that order you will be brought back before me.  You are now in the County Court.  This is an entirely different circumstance from the last time that you were sentenced.  You will be brought back before me and I will have no choice but to impose a further term of imprisonment.  Do you understand that?  Very well.  Just have a seat.  I am just waiting to sign the order.  Counsel are excused.  Thanks very much.

42MS BLAKENEY:  As Your Honour pleases.

- - -