Director of Public Prosecutions v Almosawy
[2024] VCC 455
•11 April 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00103
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SADDIKK ALMOSAWY |
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JUDGE: | HER HONOUR JUDGE RIDDELL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 April 2024 |
DATE OF SENTENCE: | 11 April 2024 |
CASE MAY BE CITED AS: | DPP v Almosawy |
MEDIUM NEUTRAL CITATION: | [2024] VCC 455 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Aggravated Burglary --- Armed Robbery --- False Imprisonment --- Serious examples of these offences --- Young offender --- Bugmy enlivened --- Drug and alcohol use --- First time in adult custody --- Solitary confinement --- Late plea of guilty
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins (2007) 16 VR 240 --- The Queen v Bugmy (2013) 249 CLR 571 --- DPP v Drake [2019] VSCA 293 --- Jawarhiri v The Queen [2021] VSCA 287 --- DPP v Hermann [2021] VSCA 160 --- Webster (a Pseudonym) v The Queen [206] VSCA 66 --- Roach v The Queen [2020] VSCA 205 --- R v Devries [2005] VSCA 95 --- DPP v Stewart [2021] VCC 1007 --- The King v Hall [2023] VSC 151
Sentence: TES 7 years and 2 months’ imprisonment; NPP 4 years and 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole | Office of Public Prosecutions |
For the Accused | Mr C. Pearson | Radovic Lawyers |
HER HONOUR:
1In the small hours of the morning of Sunday 10 April 2022, 36-year-old
Anthony Wood[1] woke to a man standing over him and holding a knife to his neck. He moved backwards in the bed and into his partner, 37-year-oldJonathon Marsh.[2] Mr Marsh woke and started reaching for his glasses before being told, 'Stop what you're doing'. The man moved to the end of the bed, held up the 30-centimetre knife and said, 'You see this, I don't want to use it, but I will if you make me'.[1] A pseudonym
[2] A pseudonym
2That man was you, Mr Saddikk Almosawy. Sometime earlier you had broken into the single-storey Richmond home of Mr Wood and Mr Marsh. You were wearing all black, including gloves and a mask. You were armed with the knife and your intention was to steal, knowing or reckless to the fact that a person or persons would be present in their home.
3What followed that initial confrontation was a terrifying ordeal for Mr Wood and Mr Marsh. You remained in their house for over an hour, directing them to give passwords to their phone and transfer money to you, directing them to move with you from room to room as you ransacked their personal belongings, making threats, and making them lie on the ground before tying their hands and feet. You stole various items from them, including money and their car.
4It is trite to say this is very serious offending and has left a lasting impact on the two victims. The only appropriate sentence is a term of imprisonment.
5After a sentence indication hearing before me on 15 May 2023 and an indication given on 29 June 2023, you indicated that you would accept the term of imprisonment I had given. You were not arraigned on that day, and on the date of your plea in August 2023 you indicated that you no longer accepted the sentence indication and withdrew your indication of a plea of guilty.
6An application for a second sentence indication was made but refused by me in a ruling on 8 December 2023. On 21 December 2023, you pleaded guilty and were arraigned on the current indictment.
7Ultimately, you have pleaded guilty to one charge of aggravated burglary, one charge of armed robbery, two charges of false imprisonment, and one charge of handling stolen goods. You have also pleaded guilty to three summary charges connected to this episode of offending; namely, unlicensed driving, possession of a prohibited weapon without exemption and stating a false name to police.
Summary of Offending
8Turning to your offending in more detail.
9The aggravated burglary was committed by you when you entered the home of Mr Marsh and Mr Wood around 1.50 am on 10 April 2022, disguised and intending to steal from persons present.
10At the time of that offending, you were 18 years of age. Mr Marsh and Mr Wood were not known to you, and the choice of their premises was a random one.
11After you initially confronted the two men in their bed and threatened them with the knife physically and verbally, you then demanded that they unlock their phones and open their bank accounts. Mr Marsh, no doubt fearful, did so, logging into his Commonwealth Bank account. You asked him how much money he had, and he told you there was $26,000 in his account. You demanded that he transfer that to you, holding the knife about a metre away from him and saying, 'I'll only hurt you if you do something'.
12You then took his phone and attempted to enter your PayID bank details for the transfer. Your gloves made that difficult. You took your mask off, and one glove, saying, 'I'm going to have to pull my mask down. You don't remember what I look like, you don't tell anyone'. You also told them, 'I have a friend on the corner. If he sees lights or anything funny, he'll come in'.
13You attempted to transfer $20,000 to your account. However, that was unsuccessful due to a transfer limit. You then successfully transferred $15,000 via PayID to your account. That is the beginning of the charge of armed robbery.
14As that occurred, you then began to rummage through the bedroom drawers, placing various personal items into your pockets, including sunglasses, Apple AirPods and approximately $260 in cash.
15You then told the two men to get out of bed and to place their hands behind their backs. You walked them out of the room, holding the knife behind them and saying, 'No funny business. I don't want to have to use my knife'. You took their mobile phones, placing them in your pocket.
16You proceeded to take an Apple MacBook and duffle bag from the study. Mr Marsh and Mr Wood pleaded with you to leave. However, you refused, instead asking them about the vehicle parked in the driveway, a Volkswagen Golf. They lied, saying it belonged to a friend and they did not have the keys.
17You demanded they then move from the study to the lounge room at the front of the house. You closed a window and the curtains to avoid anyone observing from the street. You were still holding the knife and again said, 'No funny business. You're going to wait here'.
18You left them while you went to look through a second bedroom, soon returning and ordering them into the hallway. You told them to get onto their knees and place their hands behind their backs. Around that time, you stole a box of jewellery containing a gold chain, gold bracelet, gold watch and gold ring as well as a Toyota HiLux key and a calculator. You took bank cards, gift cards and various identification cards and a hat belonging to Mr Marsh.
19You then found the Volkswagen Golf keys, which you took into your possession. You told the two victims to move from the hall into the study and there demanded that they lie on the floor. You searched the residence, returning with several belts. You forced Mr Marsh to place his hands behind his back, using a belt to tie his hands together. Using a second belt, you tied his feet together. Those facts constitute the charge of false imprisonment of Mr Marsh.
20You then forced Mr Wood to place his hands behind his back and used a belt to tie his hands together. You used a second belt to secure his feet. Those facts constitute the charge of false imprisonment of Mr Wood.
21You then went to a linen closet where you found a tablecloth. You returned to the two men and forced the cloth into Mr Marsh's mouth to gag him, securing it around the back of his head. After seeing it fall slightly, you then tightened it further around his head.
22You then retrieved a second tablecloth and forced it into Mr Wood's mouth, similarly gagging him and securing it around the back of his head.
23You then knelt beside the two restrained men and demanded their bank application passwords, writing their answers on a piece of paper.
24Not content with the terror you had already inflicted on them, you pressed the knife against Mr Marsh's right shoulder and his cheek and said, 'If I hear a police report or they come after me, I know where you live, and I'm going to come and get you'. You then moved towards Mr Wood, pressing the knife against Mr Wood's left shoulder and said, 'I'll get you here, and it will take 4 minutes to bleed out'.
25Soon after, you then left the house, taking the Volkswagen Golf and driving away. Your taking of the $15,000, the personal items taken from the men and the various areas of the house, including taking the car, form the basis of the armed robbery charge.
26You had been in the house for approximately one hour, but that must have seemed like an eternity to those two men. After you left, they managed to untie themselves and run to a neighbour's house where they hid as their neighbours rang police. That police incident was broadcast at approximately 3.11 am.
27Police attended soon after and began securing the crime scene, seizing clothing worn by Mr Marsh and Mr Wood and taking their statements.
28Enquiries subsequently made with the Commonwealth Bank of Australia revealed that the bank had identified the transfer of $15,000 as suspicious and cancelled the transaction. It appears that transaction led police to you.
29In the following hours, police attended your address and saw you leaving the apartment. You ran but were soon arrested. You were searched and found to be in possession of a small knife in a sheath. That is the basis of Summary Charge 10, possess prohibited weapon without exemption. You were also in possession of the keys to the Volkswagen Golf.
30You gave police a false name, date of birth and address. You later directed police to the location of the stolen Golf. It was found bearing stolen number plates, which is the basis for Charge 5, handle stolen goods, and found to contain various items of property of Mr Marsh and Mr Wood.
31You were arrested. On interview, you made no comment. You were remanded on that date, 11 April 2022, and have remained in custody since that time.
Sentencing Principles
32The maximum penalty for the charges of armed robbery and aggravated burglary is 25 years' imprisonment; for handle stolen goods, the maximum penalty is 15 years' imprisonment; and for false imprisonment, it is 10 years' imprisonment.
33The summary of charges of unlicensed driving and possessing a prohibited weapon without approval have maximum penalties of six months' and two years' imprisonment respectively, and state false name and address has a maximum of 5 penalty units.
34This is very serious offending. The sentence I impose must express the court and the community's denunciation and disapproval of your behaviour. It must serve as a general deterrent to other offenders who would seek to enter the homes of innocent victims and inflict fear and trauma on them for their personal gain. The sentence must obviously have as a focus the need for community protection.
Objective Gravity
35In assessing the objective gravity of each offence, I conclude they are serious examples of their type.
36The aggravated burglary was a premeditated act. It is unclear how or why you chose the particular house. However, you were clearly prepared and planning to enter and burgle a residence. You were disguised and armed with a large knife for that purpose. Those facts of being in all black, wearing a mask and gloves and carrying a weapon make for a frightening image. They aggravate the seriousness of this offending.
37A knife is a particularly disturbing weapon, which obviously carries with it a threat of serious injury. The fact you brandished it, pressed it physically against both men at times while making threats, and made reference to your capacity to use it makes this offending very disturbing.
38I cannot determine for how long you had planned to commit this offence, but the fact it was planned increases its seriousness. The fact it was committed in the middle of the night, on a residential property where cars were parked, makes obvious the fact that you knew a person or people would likely be home and asleep. Not content to steal from the house without disturbing the victims, you then elected to confront them in their bed and to threaten them.
39The armed robbery is also a serious example of such an offence. It has the unusual feature here of having been committed in the home of the victims. It was an ongoing offence constituted first by the bank transaction and then protracted as you ransacked the house and finally took the car. Items of real and personal value were taken. The length of time over which you were in the house was protracted.
40You made various threats, including by implication that you would use the knife if they reacted, that you had an accomplice waiting outside, and made the disturbing comment to Mr Wood about 'bleeding out' if you were to stab him. Those threats and the length of time you were in the house, directing the victims about where to go and what to do, no doubt emphasised to them their lack of control over the situation and their helplessness.
41The fact you committed these offences alone, apparently without any peer influence, is a most worrying feature of this offending. For a young person to behave in such a brazen, threatening way is a real concern.
42The false imprisonment charges relate to your actions of having secured each man's hands and feet with a belt and of gagging both of them with tablecloth material. Although of short duration, the context of what had been occurring in the lead-up, of your threats made immediately prior to and after they were bound, makes this a serious example of that offence. You bound them presumably to reinforce your comment that they should not involve police, and so that you could easily escape. I find your threat that you knew where they lived and would return to be particularly disturbing.
43Fortunately, neither Mr Marsh nor Mr Wood was physically injured by you; fortunately, the Commonwealth Bank stopped the transfer of their money to you; and fortunately, many of their items of value were found in the car. The car was returned but only after six months and then in a damaged condition. A number of personal items, including a watch and gold jewellery, have not been recovered, along with their phones, which were taken by you.
Impact on the Victims
44Mr Marsh and Mr Wood have had a long wait for resolution of these legal proceedings. Needless to say, resolution of your plea and sentence will be unlikely to resolve the aftermath of your actions against them.
45Both men attended court to read their victim impact statements aloud. They were eloquent and powerful statements, and it is evident that your offending has had a seriously damaging impact on their lives.
46Mr Marsh says:
At the start of April 2022, I was happy. I'd moved into a house with my partner in my ideal neighbourhood. We had just gotten our first dog and I was starting a new job in a couple of weeks. I was happy with my life. April 10 2022 — a date forever etched into my memory. The date I lost my happy. Light became dark. Cheerful became negative. Optimism became pessimism. Happy became sad, depressed and anxious.
47He talks about feelings of anxiety and the many triggers which provoke anxiety and a panicked feeling of:
... whether I need to fight or take flight. More often than not, I freeze. I'm frozen into a state where I relive the knife being pressed into my neck. I'm frozen into a state of inactivity. I freeze with fear, with panic, with the inability to think, process, and act.
48He says:
I no longer feel safe going about my life. There is a dark cloud sitting with me at all time: wondering if the stranger I'm walking towards will pull a weapon on me; wondering if the person behind me at the supermarket will also hold a knife to my throat; wondering if what happened that night will happen again. I inherently don't trust people anymore.
49He has been prescribed diazepam in order to relieve his anxiety.
50Mr Wood says:
The whole ordeal has instilled fear in me. Fear for myself but more so, looking out for Jonathon. Not a night goes by where I don't lie in bed thinking about the incident. Whether it's thinking about waking up to the knife on my throat, or if Jonathon or I had been hurt, or maybe something worse like defending our lives, home and puppy, and having to live with 'what if I hurt someone'. There seems to still be quite a bit of anxiety that comes from waking to someone in your bedroom with a knife however I deal with this day by day.
51He refers to the fact that it is unclear to them how you entered their house, and that that is a worrying part of your offending. Both have become hypervigilant in relation to locking doors and windows and checking and rechecking.
52Mr Wood says:
I have a lot of emotions, fear, anxiety, stress and even anger. Angry that someone can come into someone's home and inflict such violence and fear.
53They have suffered financial impact of your offending. Mr Marsh says:
I was meant to start a new job the day after the home invasion. The connection of the incident and that workplace has meant that I had to leave the role. The incident has affected my confidence in my ability to work effectively.
...
The crime has also had a deep financial impact on us. As we did not have home insurance at the time, we have been unsure if we were going to have the recovered items returned to us, and still unsure about everything else, and have gone about purchasing replacements and additional home security.
54They have both had time away from work to attend police and court matters.
55Mr Wood similarly says they slept with a portable air conditioner against their door for months out of fear that you would return. He said:
After the incident we made the discission [sic] to move out of the house, our home — we did not feel safe. Having to pick up and move our home was upsetting and extremely stressful — we had a life there however our safety was our priority ... this caused a lot more stress and anxiety to the issue ... we would not have moved if the event did not occur.
56They also speak of the additional stress that the delay in these proceedings has caused them. Mr Wood says:
After hearing the assailant was initiating new council [sic] and the hearing would now be pushed to a later date, this caused a lot of angst, anxiety and stress — we had to wait another six to 12 months for any indication of what was happening.
57Further:
The fact that he was pleading guilty and then indicated he wanted to change this was very confusing to us. This scared us also as we thought that he may not be held accountable for his actions. And again, having this prolonged has caused unnecessary stress.
58Mr Wood recognises and thanks the Victoria Police team who handled this matter, describing them as 'extremely comforting and considerate, which helped us in a time of need'.
59In closing, Mr Marsh says:
Now it's April 2024. There's still not a day I don't think about the event. It's been two years to the day that we're finally here.
60He says:
The trauma of what has been inflicted on us will live with us forever. I can't see myself recovering from this. You've made me question everything and everyone. Their motivations. Their ability to hurt me. My trust in them, and likely now — their trust in me. You've ruined me. You're like quicksand, and every day, I get stuck. Stuck in sadness, stuck in anxiousness, and stuck with the lifelong pain this event has caused. You infiltrate everything I do. I've almost drowned in your quicksand. The hurt you've caused will stay with me, and I'm trying to do the work to not let you have constant control of me.
61I thank them for taking the time to prepare victim impact statements. It is important for a sentencing court as well as the offender to understand the consequences for victims and the way in which offending impacts their lives in an ongoing way.
Personal Circumstances
62I turn now to your personal circumstances. In assessing your personal circumstances, I have had the benefit of reading the material provided by your counsel throughout the course of this matter. This includes the submissions of counsel, a psychological report authored by Laura Fleming dated 29 May 2023 and a psychiatric report dated 12 November 2023 authored by Dr Anthony Cidoni. I have also received a Youth Justice bail service report dated 11 October 2022 which, although prepared for another purpose, provides further background details as to your personal circumstances.
63In summary, your formative years were marked by the violence of your father and then stepfather, by dislocation and periods of homelessness and by a traumatic event of your house burning down when you were home alone as a 14-year-old. In the context of your upbringing, you have had a substance abuse problem since you were in your very early teens. You have some traits of bipolar disorder and antisocial personality disorder, and a diagnosis of
post-traumatic stress disorder. Obviously, your age is a significant matter in sentencing you.64You were born in Australia in 2003 and are of Iraqi heritage. You have two younger brothers, who reside with your mother.
65You were the victim of family violence as a child, perpetrated first by your father and then your mother's subsequent partner. You reported to Dr Cidoni that your early memories include watching your father 'bash' your mother.
66Your parents separated when you were two years old, and your mother
re-partnered when you were seven. Your stepfather was an alcoholic and inflicted violence towards your mother as well as to you and your younger brothers.67The reports indicate that multiple complaints were made to Child Protection Services in relation to your father and your mother's partner. A letter provided by you to the court details the impact that the childhood abuse has had through your adolescence.
68You also grew up around substance abuse, witnessing your uncle assault your mother and grandmother after he had taken ice.
69Your report that your family 'did not believe' in mental health issues, however that you believe your mother suffered from some mental health complaint. You report that when you were nine years old, you observed an incident where she attempted to self-harm, pouring gasoline over herself and holding a lighter.
70You struggled at school, attending three or four different primary schools and two high schools, only just passing Year 10. Whilst at school, you were subject to several suspensions for fighting. You were also a victim of racism.
71You yourself have struggled with mental health issues. You report having experienced suicidal ideation from the age of eight and episodes of trying to strangle yourself with a pillow and rope. You experienced your first significant period of depression occurring around the time that you experienced the house fire at age 14. You began self-harming at that time, and that continued in high school where you inflicted superficial cuts to your arms and legs.
72In 2020 or 2021, you attempted to commit suicide by overdosing on paracetamol and 'all the medicine in the house'. You were taken to hospital after that episode.
73You have had a strained relationship with your mother. In 2016, when you were 12 or 13, you were sent by her to live with your father in Perth due to your challenging behaviours. That arrangement soon deteriorated. You were forced by him to live with extended family and eventually became homeless. You returned to live with your mother in Melbourne. However, after the house fire, you, your mother and brothers spent some weeks living in her car.
74You have had some employment working in fencing and then maintained a job at McDonald's for 10 months. Your attempts at TAFE and enrolling in an Advanced Diploma of Technology at Swinburne during your last period in the community have been short-lived. At the time of your offending, you were working part-time unloading trucks, you had disconnected from your family and were sleeping on a friend's couch. Your drug use was out of control.
75You began abusing substances in your early teens. Drug and alcohol use increased after experiencing the house fire. You started using cannabis at 14, and by 2020, at around 16, you report drinking alcohol daily, up to a bottle of whiskey in one sitting. You have abused benzodiazepine medication Xanax and have used MDMA, cocaine and methamphetamine. You instruct your counsel that you were under the influence of both Xanax and methamphetamine at the time of this offending.
76Ms Fleming opines that you meet the criteria for stimulant use disorder and sedative, hypnotic or anxiolytic use disorder. You suffer from polysubstance use disorder.
77You have had some limited contact with drug and alcohol counselling in the past.
78Your criminal history is recent, dating to the period when you were 16 or 17 years old. It is limited to two appearances in the Children's Court in 2021. Of concern, it is a serious criminal history for someone so young, including multiple prior convictions for offences of confrontational violence not dissimilar to the conduct before me. Of real concern, you were on youth remand from March to October 2021 for multiple episodes of aggravated carjacking, including where a person was injured, for assault, theft and arson. You were released in October 2021 to a youth attendance order. That order was in place at the time of this incident and was breached by this offending.
79Whilst on a Youth Justice order in 2021, you were engaged in a limited way with a psychologist.
80You were prescribed fluoxetine after your overdose in 2020, though your adherence to medication was 'inconsistent' while you were in the community. As I said, in the lead-up to this offending, you had disengaged from any treatment, had left your mother's home and were again using illicit drugs.
81You are medicated on antidepressants in custody which you report have successfully reduced some symptoms of anxiety.
82Dr Cidoni writes that you exhibit symptoms of antisocial personality traits and borderline personality traits, which include 'anger, affective instability, impulsivity, and disregard for the law'. He does not diagnose you with a formal personality disorder on the basis of your youth but states that it is likely outcome if there is no treatment or intervention.
83In her May 2023 report, Ms Fleming diagnoses you with PTSD and notes that your symptoms are also consistent with complex PTSD. She notes that testing scores at that time indicated 'severe symptomatology which would be affecting [your] functioning'.
84It was not suggested that the principles of Verdins v R[3] are enlivened, though I take into account your mental health state as it relates to and emerges from the context of your personal history.
[3] (2007) 16 VR 240
Bugmy v The Queen
85On the basis of your personal history, I accept that the principles enunciated by the High Court in Bugmy v The Queen[4] are enlivened.
[4] (2013) 249 CLR 571
86Those principles arise where an offender has suffered significant deprivation in their childhood and formative years.
87The consequence of a finding that Bugmy is applicable is that your subjective culpability cannot be equated with a person who committed the same offences but had the advantage of a normal, stable and regular home environment.[5] That is a reflection of the principle of equal justice, though like must be treated as like, and where there are differences, they should be recognised.[6]
[5]DPP v Drake [2019] VSCA 293, quoted in Jawarhiri v The Queen [2021] VSCA 287
[6]DPP v Hermann [2021] VSCA 160
88The Court of Appeal in DPP v Drake[7] stated:
It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender's formative years ... childhood trauma can permanently damage — and seriously distort — a person's view of the world around them and their understanding of social norms.
[7]DPP v Drake [2019] VSCA 293
89I take those matters into account in assessing your moral culpability for this offending.
Youth
90Sentencing principles also dictate that your youth is a significant factor in sentencing you. A young offender is defined by Parliament in s 3 of the Sentencing Act 1991 as a person under 21 years of age.
91Despite the usual punishment for offending like this, the consideration in the circumstances of a young offender are radically different. As the higher courts of this State have made plain, there are very particular features which a sentencing judge must take into account when dealing with a young offender.
92Relevantly, those factors, in summary, are as follows:
(1)the consideration of the court must turn to the importance of rehabilitation and reclamation;
(2)youthful offenders, being immature, are more prone to ill-considered or rash decisions;
(3)youthful offenders may lack a degree of insight, judgment and
self-control that is possessed by an adult;(4)youthful offenders may not fully appreciate the nature, seriousness and consequences of their criminal conduct;
(5)in sentencing young offenders, courts are cognisant that the effects of incarceration in an adult prison on a young offender will more likely impair rather than improve the offender's prospects of successful rehabilitation;
(6)courts recognise the potential for young offenders to be redeemed and rehabilitated, and that potential exists because young offenders are typically still in a state of mental and emotional development and may be open to influences designed to positively change their behaviour.
93It is for that potential that it has been stated that the rehabilitation of young offenders is one of the greatest objectives of the criminal law.
94In the appeal of Webster (a Pseudonym) v The Queen,[8] which concerned a
17-year-old who had committed a number of serious sexual offences, the Court of Appeal summarised the distinction between sentencing adults and young offenders. They stated:This appeal highlights, once again, the difficult task which confronts a sentencing court when imposing sentence for serious crimes committed by a young offender.
In such a case, there is an acute conflict between sentencing considerations. On the one hand, conventional considerations of just punishment and denunciation point towards a custodial penalty, because serious offences are seen to require the uniquely punitive sanction of loss of liberty. On the other hand, the public interest in the rehabilitation of an offender is never greater than in the case of a young offender.
[8] [206] VSCA 66
95Although your counsel who appeared at the first sentence indication hearing submitted that a term of detention in a Youth Justice facility may be open, the offending here is too serious to warrant such an outcome.
96However, in imposing a sentence which involves imprisonment in an adult custodial setting, I have been mindful of your young age and of the potential for you to be further exposed to and entrenched in an environment with criminal behaviours and beliefs. In turn, that may have a negative effect on your prospects of rehabilitation. In that way, your young age and the focus on rehabilitation of a young offender has worked to reduce the term of imprisonment I would otherwise impose and also to allow for a longer period of supervision on parole when you are released. It is not only to your benefit, but as your counsel stated, the community ultimately benefits from your full rehabilitation.
Period of Remand
97This has been your first period in adult custody. You have been remanded since 11 April 2022. You have been involved in multiple incidents involving you as a participator and perpetrator in physical assaults, apparently culminating in your assault of a prison officer at Port Phillip Prison in July 2022. You reacted with violence when he accused you of lying, punching him and breaking his nose.
98After that incident, you were housed for one month in solitary confinement in the Charlotte Unit at Port Phillip Prison and then in similar conditions at Melbourne Remand Centre. In approximately May 2023, you were transferred to Barwon Prison. You were placed in a management unit. What that means is that you were in isolation. As at November 2023, I was informed you were in the Olearia Unit where you were permitted 90 minutes per day out of your cell in a small caged area for exercise and 30 minutes to make phone calls.
99During those periods of management, you had no access to education or rehabilitation programs or to engaging in prison employment. You were not permitted to have in-person visits with your mother.
100That status continued until February 2024 when you were transferred to the MRC after being sentenced for the prison assault in November 2023. You remain in a management unit at MRC. You hope once this sentence is finalised, you will be permitted to move to a mainstream unit where you can pursue education, employment and treatment.
101I take that period in management into account when considering your time in custody. I accept that although a response to your outburst of violence, it means you have spent your first time in custody in far more difficult circumstances than most prisoners.
102Although Verdins principles were not pressed, I take into account that you are someone with some mental health issues and have not had access to treatment in the custodial setting.
Plea of Guilty
103Another factor which works in mitigation of your sentence is the fact that you have pleaded guilty to this offending. Your plea was ultimately entered on 21 December 2023. Although you indicated a possible change of plea after the sentence indication in August 2023, I do not take that into account as aggravating sentence although I am mindful it has added to the delay experienced by the victims.
104Your plea of guilty is still a significant matter. It has a utilitarian benefit in that it saves the court and the community the cost and time of a jury trial. Importantly, it also saves Mr Marsh and Mr Wood from having to give evidence and be cross-examined about this traumatic experience. That is significant. I note there was no committal at the Magistrates' Court, and therefore neither of the victims have been required to give evidence at any stage.
Remorse
105A plea of guilty may also reflect remorse on the part of the offender. Where there is genuine remorse, that fact bodes well for potential rehabilitation. A sentencing court must take that matter into account.
106Your counsel submitted that the contest in relation to this offending has been technical and has not stemmed from an unwillingness on your part to take responsibility for your conduct.
107To that end, I received a letter written by you in advance of the first sentence indication hearing dated 12 May 2023 which expressed the impact of your childhood on your life thus far, your struggle with drug addiction and its consequences and expressed your remorse for this offending.
108You described experiencing embarrassment at the state of your life after a relapse into drug abuse following the positive progress you had made in Youth Justice programs. You stated you developed a depression 'due to the path [your] life had taken', and that you felt you '[weren't] going to return from'. You go on to describe your offending as 'horrendous' and which you 'would never wish upon anyone', and that you 'truly regret' your actions.
109You describe your ongoing experience in solitary confinement as being 'the most confronting and difficult time of [your] life followed by the most enlightening moment of realisation of the many mistakes [you] had made'. You state that you have begun to re-evaluate your life, which you want to make into something to be proud of, and that you do not want to be responsible for hurting another person.
110Although a letter from an offender written for a plea warrants a degree of caution, I accept those sentiments that you have expressed to be genuine. The real test for you will come in carrying them out upon your release.
Prospects of Rehabilitation
111The nature of your criminal offending both here and in your criminal history and your history of substance abuse is worrying. It seems that in the sober light of prison you recognise those facts. You say the period of isolation has given you a wake-up call. I accept that you have prospects of rehabilitation and that, given your young age, they are not in any way extinguished.
112Psychiatric intervention to deal with your past history is important, as Dr Cidoni has stated.
113Your counsel highlights the importance of receiving treatment as soon as possible so as not to miss the window of opportunity whilst you are young.
114Dr Cidoni opines that your risk of reoffending will be significantly heightened should you not receive adequate treatment to address your substance abuse issues. Residential rehabilitation has been discussed with your family. Positively, you have expressed an interest in undertaking such treatment, and even more positively, your family apparently has funds to pay for it. That will be a matter for you upon your release.
Sentence Indication
115Two legal issues arose on today's plea. The first is whether I am bound by the sentence indication I gave in June 2023 given the events which followed.
116The legislation which allowed for a sentence indication is such that, once given, a sentencing court cannot go beyond the indication. Second, that it applies as long as it is accepted at the first reasonable opportunity. You did not accept this indication at the first reasonable opportunity.
117Mr O'Toole submitted that I am therefore not bound by the indication I gave and that the sentencing task is reopened afresh. I accept that is the case. I note the prosecution was not submitting that I should increase the sentence to be imposed.
118In the circumstances of this case, I cannot see any reason which would cause me to increase the sentence by virtue of intervening events.
Totality
119The second issue which arose concerned totality and the interplay of the sentence imposed by His Honour Judge Gucciardo. His Honour had indicated he would not impose sentence until this more serious matter had been finalised. Your decision to decline the sentence indication and foreshadow a change of plea altered the course of resolution and sequence of sentences.
120Ultimately, His Honour sentenced you for the assault of the prison officer in November 2023 to 341 days' imprisonment, reflecting time served on remand for that offence.[9]
[9] An issue arose in relation to the application of s 16(3) Sentencing Act 1991. That section applies when a court is imposing sentence for a prison offence. An assault prosecuted under the Crimes Act 1958 is covered by that definition (see e.g., Roach v The Queen [2020] VSCA 205; R v Devries [2005] VSCA 95; DPP v Stewart [2021] VCC 1007; The King v Hall [2023] VSC 151). The impact of that section is that any term of imprisonment for a prison assault must be served entirely cumulatively on any other sentence the prisoner is undergoing. Ultimately, both parties agreed that it has no direct application here given the order in which you are being sentenced. I accept that s 16(3) has no application here.
121Mr Pearson submitted that I must take into account Judge Gucciardo's sentence in consideration of the principles of totality and proportionality. He submits that the impact should be that I reduce the sentence I indicated I would have imposed, mindful that I cannot order any concurrency with the sentence imposed by Judge Gucciardo. That sentence has now expired. He submitted that sentence was not a minor matter but perhaps a stern sentence. In that way, he reiterated that your age, the circumstances of your incarceration and your prospects of rehabilitation should work to reduce the total sentence, whether in relation to the head sentence or non-parole period.
122I accept that I must give account to the principle of totality. What that means is that I must mentally stand back and look at the overall sentence I am to impose, taking into account the fact you have also served another sentence in the same period of remand, and I must determine whether the overall sentence is appropriate.
123I had taken into account your young age, your history enlivening Bugmy, your difficult circumstances in custody and what would have been an early plea of guilty when I gave the sentence indication. His Honour also took those matters into account in determining the appropriate sentence for the prison assault.
124In addition to those matters, looking at this sentencing task afresh and taking into account matters which are now before me, I note the additional delay in resolution and that this is now a late plea of guilty. Further, I now have evidence of the real and ongoing impact on the two victims through their victim impact statements, which were not available at the sentence indication hearing. Your circumstances in custody have now changed. Albeit you are still in a management unit, it is less stringent.
125The significant new factor is that you have served an additional 11 months' (341 days) imprisonment. I cannot order any concurrency with that sentence.
126Taking those matters into account, I have concluded that when I take that mental step backwards and look at the total sentences you will serve, it is appropriate to moderate slightly the term of imprisonment I will impose. Ultimately, what that means is that the effect of this overall sentence in combination with the sentence of His Honour Judge Gucciardo will be that you will serve a possible total of eight years and one month imprisonment and that you will spend over five years in custody in total before becoming eligible for parole.
Current Sentencing Practices
127Finally, I indicate that I have taken into account current sentencing practices. There are always similarities and differences in both the circumstances of the offending and the personal circumstances of the offender. I note that aggravated burglary, armed robbery and false imprisonment offences cover a wide spectrum of factual scenarios. Ultimately, I am required to impose a just sentence in all the circumstances before me, and that is what I have endeavoured to do.
128In my view, the protracted and serious armed robbery offence is the most serious and will be the base sentence.
129I accept that there should be considerable concurrency given this is a single episode of offending and there is some overlap between the offences.
Sentence
130Mr Almosawy, the sentences I impose on you for your offending are as follows:
131On Charge 1, of aggravated burglary, you are convicted and sentenced to four years and two months' imprisonment;
132On Charge 2, of armed robbery, you are convicted and sentenced to five years' imprisonment;
133On Charge 3, of false imprisonment, you are convicted and sentenced to three years and three months' imprisonment;
134On Charge 4, of false imprisonment, you are convicted and sentenced to three years and three months' imprisonment;
135On Charge 5, of handling stolen goods, you are convicted and sentenced to 12 months' imprisonment;
136On Summary Charge 8, of driving whilst disqualified — sorry, is it?
137MR O'TOOLE: Unlicensed is right.
138HER HONOUR: Unlicensed driving, thank you. You are convicted and sentenced to three months' imprisonment;
139On Summary Charge 10, of possessing a prohibited weapon without exemption, you are convicted and sentenced to five months' imprisonment;
140On Summary Charge 11, of stating a false name to police, you are convicted and fined $200.
141In relation to the exercise of my discretion regarding your driver's licence and relevant to Charge 2 of armed robbery, you are convicted and disqualified from obtaining a licence for a period of two years.
Cumulation
142I make the following orders for cumulation, noting that the armed robbery sentence of five years' imprisonment is the base sentence. I make the following orders for cumulation: 12 months of Charge 1, seven months of Charge 3 and seven months of Charge 4 are to be served cumulatively upon Charge 2 and upon each other. I make no other orders for cumulation.
Total Effective Sentence
143The total effective sentence, therefore, is a term of seven years and two months' imprisonment.
Non Parole period
144In relation to the non-parole period, I direct that you are to serve a minimum term of four years and three months' imprisonment before becoming eligible for parole.
Pre-Sentence Detention
145As of today, you have been in custody for this matter for 731 days. Taking into account the sentence imposed by His Honour Judge Gucciardo of 341 days, the pre-sentence detention relevant to this offending is 390 days. Sorry, was it 391 or 390?
146MR O'TOOLE: Three nine zero.
147HER HONOUR: Three hundred and ninety days. I declare that period is to be reckoned as having been served under this sentence.
s 6AAA
148Pursuant to s 6AAA of the Sentencing Act 1991, but for your plea of guilty, the sentence I would have imposed would have been one of nine years and eight months' imprisonment with a non-parole period of six years and six months' imprisonment.
149The prosecution has made application for a disposal order. It is consented to, and I propose to make that order in the terms sought.
150MR O'TOOLE: As the court pleases.
151MR PEARSON: As Your Honour pleases.
152HER HONOUR: Any matters to raise, counsel?
153MR O'TOOLE: No, Your Honour.
154MR PEARSON: No, Your Honour. Could I just speak briefly with the accused when Your Honour rises?
155HER HONOUR: Yes, we will leave you on the link, thanks. Mr O'Toole, thanks for your assistance throughout the course of this matter.
156MR O'TOOLE: Court pleases.
157HER HONOUR: Thanks, Mr Pearson, for your assistance, coming in only recently.
158MR PEARSON: Your Honour please. Thank you very much.
159HER HONOUR: Mr Wood and Mr Marsh, I wish you all the best, thanks very much.
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