Director of Public Prosecutions v Alizada

[2015] VCC 175

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02128

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZAGER ALIZADA

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2015
DATE OF SENTENCE:	18 February 2015
CASE MAY BE CITED AS:	DPP v Alizada
MEDIUM NEUTRAL CITATION:	[2015] VCC 175

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	Ms C Boston
For the Accused	Mr A Pyne

HIS HONOUR:

1Zager Alizada; you have pleaded guilty to an indictment charging you with an offence of armed robbery, three offences of criminal damage, one offence of attempted theft and one offence of assault police.  All of which occurred on 16 September 2014.  You have also admitted a prior court appearance which involved your conviction on a significant number of offences.

2The offence of armed robbery carries a maximum term of imprisonment of 25 years.  Each of the offences of criminal damage carry a maximum term of imprisonment of ten years.  The offence of attempted theft carries a maximum term of imprisonment of five years, as does the offence of assault on police.  You have admitted a related summary offence involving the assault upon a Mr Roe, who was the owner of the car that you attempted to steal.  That offence carries a maximum term of imprisonment of three months.

3The prosecution has tendered and relied upon a summary of opening, which was marked Exhibit A on the plea hearing, and there were also video clips played which were Exhibits B, C and D, respectively.  And I was also provided with colour photographs which supplemented the black and white photographs that were contained in the brief of evidence.

4The summary of prosecution opening was read to the court this morning.  I am not going to read it again, suffice to say that you carried out an armed robbery at a BP store at a service station at about 1 pm on 16 September 2014.   You did so in circumstances where you were armed with a rock, which you used to menace the attendant behind the counter.  The manner in which you behaved was consistent with you being effected by drugs at the time.

5I think it is fair to say that the robbery was inept, and the nature of the goods that you stole during the course of the robbery would suggest that to the extent that it was planned, it was not very well planned, and the risks involved in being caught hardly reflected the nature of the goods that you were seeking.  Again, it seems to me that that is consistent with a person who is carrying out an armed robbery effected heavily by illicit drugs.

6Likewise, the behaviour that you exhibited shortly after the armed robbery in committing the offences of criminal damage and attempted theft at the Westall Railway Station, in the carpark, were symptomatic of a person who was heavily under the influence of illicit drugs.  One might say the same of the assault on police, which you committed soon after your arrest at the Westall Railway Station.

7Fortunately nobody was seriously injured.  The damage that you caused was not insignificant, but not of great value, and all of the offences, it seems to me, are of a kind which may fairly be said to fall towards the lower end of the spectrum of offences of their particular kind.

8That said, as I pointed out to your counsel, and he readily agreed, there is no mitigation to be found in the fact that you were clearly under the influence of illicit drugs at the time you committed the offences.   Your behaviour was quite disgraceful, aggressive, unpleasant, frightening, and is likely to have had a significant effect upon the psychological health of, in particular, Mr Singh, the victim of the armed robbery, and Mr Roe, the victim of the attempted theft and the assault.  Neither of them have elected to make victim impact statements, but it may fairly be inferred that they may well have ongoing psychological effects from your conduct on that particular day.

9Turning to matters personal to you, your counsel provided me with an outline of submissions on your behalf, together with a short chronology, and that is marked Exhibit 1, and also with a report from Dr Simon Kennedy, psychologist, dated 27 January 2015.

10The report from Dr Kennedy is helpful in that it sets out much about your background, and the history set out in the report reveals that you were born and raised in your early years in Afghanistan, and that you moved because of the war, and other problems, to Pakistan on a temporary basis and then came to Australia as refugees, living in Sydney, and then later in Melbourne.  You arrived in Sydney when you were aged 14 and moved to Melbourne when you were 17.

11You had not had much in the way of formal education prior to arriving in Australia, but you were able to complete Year 11 at Gleneagles Secondary College in Melbourne, which is very much to your credit given the relatively short period that you had had to adjust in Australia and within the Australian educational system.

12The report of Dr Kennedy indicates that you are a person of at least average intelligence.   He made that assessment even allowing for the fact that English is not your first language.  He documents the fact that from then age of 16 onwards you were living on your own in government housing.   Despite that fact it seems to be clear from your criminal record that you did not fall foul of the law, and you did not become involved in illicit drug taking until you were aged about 20.  You began using alcohol and cannabis and you later began smoking methamphetamine and using amphetamines; ecstasy, and you were taking those drugs from age 20 up til your arrest for these matters.

13Indeed the report suggests that you had taken both cannabis and methamphetamine shortly before your arrest for these matters.  The report goes on to support the proposition that you had suffered episodes of substance induced psychosis.   You had been treated with medication for that condition. At the time of the report, perhaps not surprisingly, since you have been in custody, those symptoms of your psychiatric symptoms are in remission, and you are not taking anti-psychotic medication at the present time.

14There was a very significant correlation between the abuse of drugs, and perhaps alcohol, and your offending conduct in relation to these offences.  Unfortunately these offences were committed within a month of you being sentenced for a number of other offences in the Dandenong Magistrates' Court, as a result of which you were placed on a community corrections order for a period of 12 months.

15That history would suggest, on its face, that unless, and until, you get to grips with, and overcome, your substance abuse difficulties you are a very poor candidate for rehabilitation.  However, as your counsel pointed out you are only 23 years of age now, and you were 22 years of age at the time of these offences.   The court should recognise the principles that place a strong emphasis in the application of sentencing principles upon rehabilitation.

16The basis for that is that it is undesirable to send young persons to prison where they may be subject to adverse influences that may teach them to be more adept at criminal conduct, and the emphasis should be on protecting the public by rehabilitating the young person so that they are unlikely to offend again.

17That of course has to be balanced against the need to punish adequately, the need to denounce conduct of this kind, to offer a measure of protection to the public, and to deter you, as an individual, from offending again, as well as, and perhaps more importantly, deterring others from committing offences of this kind.  It is well recognised that offences of armed robbery, particular upon soft targets of which the victim in this case was one, should properly attract sentences of sufficient severity to deter others from committing offences of this kind.

18I accept that you have shown signs of genuine remorse, that is that you are genuinely sorry for your offending conduct.   It is to your credit that you admitted your offences when you were arrested, that you have pleaded guilty at the earliest reasonable opportunity, and have not sought to play down or avoid the consequences of your actions.

19The community corrections order upon which you were placed in August of last year really had little time to take effect.  It is very unfortunate that that is so, and it is also unfortunate that you did not comply with the terms of that order in the short period in which it was in existence.  I note the comments that you made during your assessment today about that, but despite those facts the assessing officer was willing and able to recommend you as a suitable candidate for a community corrections order.

20You will have followed, perhaps, some of the conversation that I had with both counsel during the course of the plea hearing about my responsibilities as a judge - whether I could properly sentence you to anything less than a substantial term of imprisonment with a non-parole period.   Or whether I could appropriately accede to your counsel's submission that I could impose a term of imprisonment at a level which would permit me to impose a community corrections order.   He submitted that you are a sufficiently good candidate for rehabilitation, and of an age when the importance of rehabilitation is of significant importance so that would be the more appropriate course than simply sentencing you to a term of imprisonment.  I have concluded that is a well-founded submission, and that is what I propose to do.

21I have in mind, Mr Alizada, to impose a term of imprisonment upon of you of 23 months.  That is significantly less than I would have imposed had it not been for the fact that I have in mind to impose, also, a community corrections order.  It will mean you serving 23 months less the 155 days of pre-sentence detention that will be deducted from the sentence that I will impose.  The result of that would be that you would be released from prison in about 18 months' time, something of that order.

22On top of that, and with a view to helping you to get back on your feet, and to beat your drug problem, I propose to order a community corrections order for a period of three years.  That of course does have a punitive element to it in that you will be required to comply with the terms of the order and attend appointments, and comply with the directions given to you during a substantial period of time.  The order would take effect immediately upon your release from prison from the sentence that I intend to impose, and it would involve you in submitting to assessment and treatment for drug abuse.

23Mr Pyne, I was wondering - looking at the report of Dr Kennedy again - whether alcohol should be included in this?

24MR PYNE:  Certainly there is a relationship between - certainly there is a problem with alcohol, so I think that if ‑ ‑ ‑ 

25HIS HONOUR:  I think I should include alcohol.  So I would also add the condition of assessment and treatment for alcohol abuse.

26MR PYNE:  Yes, Your Honour.

27HIS HONOUR:  Also, a condition that you submit to assessment and treatment for your mental health issues, and that you submit to programs designed to deal with offence related issues such as, perhaps, anger management.  But there may be others that are indicated as a result of your assessment by the Community Corrections officers dealing with the administration of your order.

28I would also order that you be under the supervision of the Department of Corrections for that three year period, which would require you to attend appointments as and when required, and I think that the suggestion that you be the subject of judicial monitoring is also a sensible one, and I would be inclined to order that from time to time - at least within about three or four months of you commencing the order - that you report to this court for the purpose of judicial monitoring.  And that would mean you coming probably before me and we will be looking at the degree to which you have been complying with the terms of the order.

29I do not propose to order any unpaid community work as part of the proposed community corrections order, and I make it clear that the reason for that is that I think that the combination of the period of imprisonment which I propose to impose, and the three year community corrections order with the various conditions attached to it - they being regarded as punitive elements - that the other sentencing considerations including just punishment are appropriately met by the order that does not include unpaid community work.

30I cannot make that order unless you agree to it, but before you do agree to it you must understand, and understand well, that it is not necessarily going to be particularly easy to comply with it.  If you do not comply with it then you will be in breach of the order, which will make you liable to imprisonment for a period of three months just for the breach - up to three months.  Also, obviously if the breach is by the commission of further offences then you will be up for any sentence that you receive for the further offences, and significantly you will be up for re-sentencing on this matter, which may well mean, and probably will mean, an increase in the period you will actually have to serve in respect of these sentences.

31There are of course other conditions, and you are generally aware of those, I think, already, and they will have been explained to you when you had the last order made back in August of last year, in any event, but are you willing to abide by the conditions of such an order?

32OFFENDER:  Yes.

33HIS HONOUR:  And do you consent to the order that I propose to make?

34OFFENDER:  Yes.

35MS BOSTON:  Before Your Honour proceeds to sentence, Mr Alizada has not been arraigned on that amended Charge 1.

36HIS HONOUR:  No, he has not.

37MS BOSTON:  So if that could just be done before Your Honour, before he is ‑ ‑ ‑

38HIS HONOUR:  We will do that now.  Yes.  Mr Travers, would you arraign Mr Alizada again on the Charge 1.

39CHARGE: Armed robbery.

40THE ACCUSED pleaded guilty.

41Thank you.  That order will now be drawn up and I will ask you, Mr Pyne, to go with Mr Travers to the doctrine to ensure that your client fully understands the order that he is signing and then when he signed it, I will sign it and then pronounce sentence formally.

42MR PYNE:  Yes, Your Honour.

43HIS HONOUR:  All right.  Mr Pyne, I propose to make the judicial monitoring date or the first judicial monitoring date.  19 December 2016 which I think is a Monday at 9.30 am.  So that will be included in the order.

44MR PYNE:  Yes, Your Honour.

45HIS HONOUR:  9.30 am, Mr Travers.  That is probably about four months or so after he has completed his sentence, it would seem.

46MR PYNE:  Yes.

47HIS HONOUR:  Yes.  There is one other condition that I propose too in which I have not included and that is the non-associated condition that you suggested, Mr Pyne.  That would be to not associate Melinda Nguyen.

48MR PYNE:  Yes.

49HIS HONOUR:  Yes.   Did you get that, Mr Travers?  Thank you.  I take it you got instructions on the s.4654ZF or whatever ‑ ‑ ‑

50MR PYNE:  Yes, Your Honour.  That is not opposed to making that order.

51HIS HONOUR:  Yes, Mr Travers and Mr Pyne.  Would you mind approaching the accused?

52MR PYNE:  Yes, Your Honour.

53HIS HONOUR:  Mr Alizada, I have got one more thing to say to you before I move to impose sentence formally.  It is this, that now you are a convicted prisoner serving a sentence, you will be eligible for programmes that would not have been available to you prior to you being sentenced.  There are as you probably already know, programmes available through the criminal justice system including programmes available through the Marngoneet prison.  I am not sure whether I pronounced it correctly.  Those programmes are specifically designed to help people like yourself who seem to be genuinely motivated to get away from serious drug habits and to lead an honest life.  It would help if your rehabilitation and your progress through your community correction order if you were to make as much use of those programmes as you can during your period in custody and if you do I suspect that the time will go a lot quicker.  You will feel as though you have achieved something at the end rather than merely waiting out your time.  I am now ready to pass sentence upon you.

54On Charge 1 of armed robbery, I convict you and sentence you to imprisonment for a period of 23 months.  On Charge 2 of criminal damage, I convict you and sentence you to imprisonment for a period of one month.  On Charge 3 of criminal damage, I convict you and sentence to imprisonment for a period of one month.  On Charge 4 of attempted theft, I convict you and sentence to imprisonment for a period of one month.  On Charge 5 of criminal damage, I convict you and sentence to imprisonment for a period of one month.  On Charge 6 of assaulting police officer, I convict you and sentence to imprisonment for a period of one month.

55On the related summary offence of assault upon Mr Roe, I convict you and sentence you to imprisonment for a period of one month.  All of those sentences will be served concurrently which results in a total effective sentence of 23 months imprisonment.

56I declare pre-sentence detention of 155 days, not including today as time to be reckoned as served on the sentence that I have imposed and deducted administratively and I order that that matter be noted in the records of the court.  I also, in respect of the Charge 4 of attempted theft of motor vehicle, cancel your driver's licences and impose a period of six months disqualification from driving for that offence.

57But for your pleas of guilty to these various offences, I would have sentenced you to a total effective sentence of four years imprisonment with a non-parole period of three years.  In addition to the term of imprisonment that I have imposed in respect of each of the offences running concurrently or in aggregate I should probably say, if that is the correct term - way of ordering it.  I order that you be the subject of a community correction order for a period of three years commencing immediately upon the completion of your term of imprisonment.

58You have just been through the terms of that order with my associate and your counsel and you have signed that order.  I now sign that order and it is in place.  It is important that you comply with all of the conditions of it and I hope that when you emerge from prison, having served your sentence, that you will be motivated to stick with the terms of the order.  The other reason why I did not order unpaid community work was that hopefully as a semi-rehabilitated drug dependant person, you would hopefully be able to get work and to get work soon after you leave the prison in conjunction obviously with complying with the terms of the community correction order.

59I want to give you your best chance of achieving your - the objects of your rehabilitative conditions of your order, which I think is best served by not adding to the punitive elements of the community correction order with unpaid community work. All right. Are there any other orders I need to - yes, I need to make the orders under s.464ZF of the Crimes Act and for the disposal in accordance with the draft.  The disqualification from driving starts today.

60MS BOSTON:  I just have one concern Your Honour, about the structure of a sentence and I might be being overly pedantic but I am just looking at ‑ ‑ ‑

61HIS HONOUR:  I do not mind you being a bit - be as pedantic as you like at this stage.  It is better to ‑ ‑ ‑

62MS BOSTON: Yes, Your Honour's made crystal clear what the effect of the sentence that Your Honour wants to have. But just looking at s.9 of - it is just having the aggregate sentence of the CCO applying to a number of offences but then also having the separate imprisonment for those individual offences. Just looking at s.9 Your Honour, of the Sentencing Act.

63HIS HONOUR:  Take a seat for a moment, Mr Alizada.  Section nine, let us have a look.

64MS BOSTON:  If an offender is convicted by a court of two or more offences which are founded on the same facts or form or a part of a series of offences of the same (indistinct) similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences in place of a separate sentence of imprisonment in respect of all or any two or more of them.  So for example, if Your Honour were to impose both the 23 months imprisonment as an aggregate sentence and the CCO as an aggregate sentence in respect of the charges, I think that would not infringe that principle.  But applying both separate sentences of imprisonment and then an aggregate sentence in respect of all of them may well infringe that section, Your Honour.

65HIS HONOUR:  Or I could do concurrent sentences of concurrent orders for each of the offences I suppose.

66MS BOSTON:  Yes.  Perhaps instead of making concurrent - and I appreciate I am being pedantic Your Honour but I just ‑ ‑ ‑

67HIS HONOUR:  No, I applaud your pedantry.

68MS BOSTON:  But if there was an aggregate sentence totally, just ‑ ‑ ‑

69HIS HONOUR:  You think that would be tidier, do you?

70MS BOSTON:  Yes, Your Honour.

71HIS HONOUR:  Yes.

72MS BOSTON:  Less risk, Your Honour.

73HIS HONOUR:  What do you say, Mr Pyne?  Do you - have you got any issues with that?  I think I have made it pretty clear how I regard the relative seriousness of the offences already.

74MR PYNE:  Yes, the overall intention is correct.  I must - my instinct was that it was actually tidier the other way rather than making it an aggregate sentence.  To make it separate sentences in an order for concurrency.  But the reasoning I think is ‑ ‑ ‑

75HIS HONOUR:  So we have got a split decision here, have we?

76MR PYNE:  I think the reasoning - but I think of what it is important is that Your Honour's reason is clear.

77HIS HONOUR:  Yes.

78MR PYNE:  On as to how we get to final result.

79HIS HONOUR:  Well I think my reasoning is clear.  I do not think anybody doubts that but I guess consistency as between the mode of sentencing in each case is preferable to inconsistency and I think that probably what I should do is to opt for the first option which was to, I think in my sentencing remarks, to make the community correction orders concurrent in relation to each of the sentences - each of the offences.

80MR PYNE:  Sorry, can I have a moment, Your Honour?  Yes,  Your Honour I am happy with your course.

81HIS HONOUR:  I think under s.40 I am entitled to make the order in respect of make one community correction order in respect of all of those offences.  It is not quite the same as an aggregate order.  It is an order for all of the offences.  That is all of the six offences on the indictment and the related summary offence.  So my order would be pursuant to s.40(1) I think.

82MS BOSTON:  Yes.

83HIS HONOUR:  Yes.  You are comfortable with that?  Both of you?

84MS BOSTON:  Could I just have a minute just to read the section, Your Honour?

85HIS HONOUR:  Yes.

86MS BOSTON:  Yes I think that would be fine, Your Honour.

87HIS HONOUR:  Yes, all right.  Well I make the order pursuant to s.40(1) in respect of each of those offences and they are indeed set out on the order itself so I think it is implicit that essentially that is what I have done.

88MS BOSTON:  Thank you, Your Honour.

89HIS HONOUR:  All right.  Yes now one other matter I need to deal with, Mr Alizada.  I have made an order that you provide a forensic - undergo a forensic procedure for the taking of a scraping of the inside of your mouth.  That will involve an authorised officer approaching you during the period of when you are serving your term of imprisonment and requesting you to provide a scraping from the inside of your mouth to enable the DNA to be put on the DNA database.  If you comply with that request, then that is the end of the matter, all well and good.  If you fail or refuse to provide the sample by scraping from inside of the mouth, the officer will be authorised to take a blood sample and may use reasonable force to obtain that blood sample.  I am quite sure that you will not be putting them to that trouble.  All right, anything else?

90MS BOSTON:  No, Your Honour.

91HIS HONOUR:  No.  All right.  Thank you.

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