Director of Public Prosecutions v Altaee

[2019] VCC 112

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-17-02011

DIRECTOR OF PUBLIC PROSECUTIONS

v

OMAR ALTAEE

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 February 2019
CASE MAY BE CITED AS:	DPP v Altaee
MEDIUM NEUTRAL CITATION:	[2019] VCC 112

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr J. Singh
For the Accused	Mr A. Patton

HER HONOUR:

1       Omar Altaee, you have pleaded guilty to one charge of armed robbery, one charge of reckless conduct endangering serious injury, one charge of criminal damage, one charge of possessing a drug of dependence namely methylamphetamine, as well as a number of summary charges, namely committing an indictable offence on bail and unlicensed driving. 

2       At the time of this offending you were 19 years of age. 

3       By way of background, Ms Fatima El Ardi owned a silver Hyundai.  Apart from herself, the only other person who drove the car was her ex-partner Muhanad Rasheed.  Ms El Ardi did not know you or your co-offenders. 

4       On 28 February 2017 at about 6.50 pm, 29 year old Mr Mina Mankarious was in the company of Rasheed and another man.  Mr Mankarious drove with the other two in his BMW to shops in Reservoir. You and your co-accused, Storm Piacentino, then aged 25 years of age, and a third unknown male arrived in the silver Hyundai, parking in a way so as to block the BMW.  Mr Mankarious remained in the driver's seat of the BMW with his window down. You with Piacentino and the third male approached him and stood by the open driver's window.  You demanded that Mr Mankarious hand over his phone, wallet and keys to the vehicle.  You stated that Rasheed owed you $1,400 and that you were taking the BMW as payment.   

5       

Mr Mankarious refused whereupon Mr Piacentino walked back to the Hyundai and grabbed a chainsaw.  He returned to the BMW, approaching the driver's side door.  He pulled the ripcord of the chainsaw twice, firing it into life before putting it through the open driver's window onto Mr Mankarious' arm, causing a large laceration that required 20 stitches.  Fortunately the chainsaw stalled somewhat as it was put through the window.  Mr Mankarious jumped out of the BMW and went into a shop seeking assistance.  You then followed him inside and again demanded his phone, wallet and car keys saying, "You think I'm fucking joking, I will shoot you."  You lifted your shirt revealing what

Mr Mankarious believed to be the butt of a handgun tucked down the front of your pants.  Mr Mankarious immediately handed you the keys.  You returned and drove away in the BMW.  Mr Piacentino and the third male followed in the Hyundai. 

6       

At about 7.40 pm that evening you and your co-offenders met up in the two cars at the 7-Eleven store on the Western Ring Road in Ardeer. 

Mr Piacentino then got into the BMW with you and you drove away together. 

7       On the following day, 1 March 2017 at about 6 pm, Edward Hollman was travelling along Kings Road, St Alban's in his Toyota Land Cruiser.  The traffic was heavy and he noticed a BMW driving erratically along the emergency lane behind him.  It was the vehicle belonging to Mr Mankarious and was being driven by you.  As you went past the vehicle of Mr Hollman, he observed an arm sticking out of the window and holding a red baseball bat.  Mr Hollman observed the arm swing the bat and strike his vehicle five times.  The blows landed on the rear left-hand side of his vehicle damaging the rear left tail light and body.  These events related to Charge 3 of criminal damage. 

8       Between that time and approximately 3 am on 2 March 2017, you were observed driving the BMW erratically and at a fast rate of speed on or near the Princes Freeway.  At about 2.48 am on 2 March, police observed the BMW now with stolen registration plates affixed, driving on Heaths Road, Hoppers Crossing.  They attempted to intercept, however you accelerated swerving onto the wrong side of the road heading straight towards an oncoming taxi.  You were travelling at a fast speed.  Just before a collision occurred you swerved back onto the correct side of the road missing the taxi by only a few metres.  These events relate to Charge 2, reckless conduct endangering serious injury.

9       Police later observed you travelling in the BMW again at an extremely fast rate of speed with your headlights off.  At about 3.07 am on 2 March 2017, you crashed into the side of the Laverton Club Hotel.  Two males were seen exiting the vehicle and decamping on foot.  You were arrested shortly after and a search of your person located the keys to the BMW and two ziplock bags each containing methylamphetamine crystals.  The weight of those was 6.31 grams.

10      

You were interviewed by police on 2 March wherein you made admissions concerning the taking of the BMW but denied the allegations relating to

Mr Hollman.  You claimed the methylamphetamine had been given to you after the crash at the Laverton Club Hotel. 

11      Apparently the armed robbery was motivated by a debt between you and one of the other men.  The decision to try and extract that debt was clearly premeditated though I accept the use of the chainsaw was a more spontaneous act on the part of Mr Piacentino.  However in assessing the objective seriousness of the armed robbery I note the fact that it was committed by the three of you in company; the item stolen was a vehicle, in other words an item of some real value, and which you and your co-offenders then used as your own;  it involved the use of a weapon in this case a chainsaw.  Clearly that is a weapon which has the capacity to inflict extremely serious injury.  Your co-offender did in fact inflict an injury during the course of the armed robbery and that injury required medical treatment.  It is good fortune that the chainsaw stalled as the potential for worse injuries was real.

12      Mr Mankarious has declined to make a Victim Impact Statement, however it is safe to conclude that this must have been a frightening incident for him.  Despite that violence by your co-offender, the robbery then continued by way of your pursuit of the victim into the shop and by your further show of force by threats and the brandishing of a weapon.  Regardless of what that weapon actually was the victim believed it was a gun, which again must have been very frightening in the context of the threat you made to him.

13      It is apparent that you were the leader here.  You carried the grudge, you made the demands and then you took control of the BMW committing the further offences over the course of the next day and a half. 

14      Issues of general deterrence, denunciation and just punishment must be at the forefront of my sentencing considerations.  I do take into account the maximum penalties including for armed robbery, namely 25 years' imprisonment. 

15      This matter proceeded to a contested committal on 4 and 5 October 2017.  The charges resolved during late December 2017 and early January 2018.  The finalisation of your plea and sentence has been complicated by a number of events which have occurred since that time and which I will come to. 

16      First your background.  You were born in Australia after your mother fled from Iran while pregnant.  You have never met your father.  Your mother re-partnered and had an additional five children.  Your stepfather was abusive to you.  He was violent, a heavy drinker and a problem gambler.  He lived with you until you were 12 years of age.  One of your sisters died due to heart problems.  You assisted with her burial and experienced some trauma symptoms associated with seeing her body. 

17      You completed primary school in Altona North.  Your behaviour even at that early stage was problematic and you were nearly expelled in Grade 6.  Your high schooling was limited, you were expelled in Year 7 due to oppositional behaviour and theft.  After moving schools you were then expelled in Year 9 for reportedly hitting someone with a hammer.  You started Year 10 at a technical college but say you were targeted by bullies and so discontinued.  You managed to complete a Certificate 3 in automotive technology.  You then worked on and off at a family owned car wash business from the age of 16.  Prior to your current offending you were unemployed and living with your mother and youngest brother.  Your mother is supportive of you, she has been in court throughout these proceedings and visited you weekly when you were in custody. 

18      You have a complicated mental health history.  You were seen for an assessment at the Royal Children's Hospital Psychiatry Unit in 2011 when you were 14 in the context of those behavioural issues.  At that point a cognitive evaluation determined that your full scale IQ fell in the low average range.  Your verbal comprehension skills were borderline.  You were diagnosed with both depressive disorder and oppositional defiance disorder.  You also had a diagnosis in childhood of conduct disorder. 

19      Your prior criminal history contains a number of appearances mainly in the Children's Court.  A number of these are for serious violent offences.  You have a history of breaching court imposed sanctions including probation, bail and a youth attendance order.  Those offences were committed in the context of both your behavioural issues that I've outlined and also the commencement of alcohol and drug use. 

20      You began consuming cannabis at age 14 and at age 15 were introduced to amphetamines by negative peer associates.  You have experimented with GHB and benzodiazepines.  At the time of the offending before me you were smoking up to 2 grams of ice daily, at times not sleeping for days on end. 

21      It is clear from that outline of your history that you were enmeshed in a drug using criminal milieu.  In that context in mid-2016 you were remanded in custody in relation to a number of offences. 

22      It was during that remand in November 2016 that you were seriously assaulted by a fellow inmate.  As a result you experienced what is described as a severe traumatic brain injury described by experts as permanent and life changing. This assault was observed by officers.  You were struck from behind to the head with a toaster oven.  You were kicked in the head three times and you say your head was stomped on.  You became unresponsive and were bleeding from your head.  You were unconscious for an estimated ten minutes.  You were taken to Royal Melbourne Hospital Intensive Care Unit where you underwent brain imaging studies which revealed a right subarachnoid haemorrhage, right parietal lobe contusion, large right subgaleal haematoma, and a right parietal area laceration and other facial injuries.  You were comatose for a number of days and you experienced more than a week of post traumatic amnesia.

23      You were transferred to St Vincent's Hospital for rehabilitation and received multidisciplinary intervention.  Soon after that you were granted bail.  Your brain injury resulted in ongoing problems with headaches, right side face, arm and leg numbness, a facial droop or Bell's palsy and persistent balance problems.  You also experienced a range of cognitive and emotional difficulties. 

24      Unfortunately you soon started abusing alcohol and soon returned to amphetamine use.  The offences before me were committed some three months after your release in late February and March 2017.

25      You were remanded on 2 March 2017.  In August 2017 you were again assaulted in custody.  You were rendered unconscious and your Glasgow Coma Score was recorded as 5 out of 15 by prison medical services.  Your extrication was delayed due to the presence of aggressive inmates however you were eventually intubated and taken to Royal Melbourne Hospital where you were placed in ICU for ventilator support and monitoring.  You underwent a CT brain scan which did not reveal any acute intracranial haemorrhage or fracture of the skull.  However you had some slow recovery with residual right upper limb weakness, and you remained in hospital for several days.

26      In April and again in May of 2018 you were assessed by neuropsychologist Dr Matt Treeby.  He noted the range of cognitive difficulties since your severe traumatic brain injury in 2016 including with respect to attention, concentration, memory and problem solving.  You performed in the borderline IQ range.  You were experiencing elevated symptoms of anxiety and stress.  He opined that the assault in August likely worsened your brain injury and contributed to your cognitive impairment.  He indicated that monitoring of your mental health remained extremely important and said, "He will almost certainly experience significant functional disability across all life domains for the remainder of his life."

27      When this matter was first listed before me as a plea in June 2018 there were issues raised by your legal representatives regarding your safety in custody.  They had been provided with an affidavit from Mr Brendan Money, Assistant Commissioner Sentence Management Division of Corrections Victoria outlining a number of issues which had arisen during your time in custody.  Your representatives sought to explore those with a view to having Mr Money give evidence.  Your plea was therefore adjourned.  The plea returned on 20 June, however was again adjourned as Mr Money had become unavailable. 

28      Prior to the matter returning, and for a third time, you were again assaulted by other prisoners whilst in custody.  This occurred on 8 July 2018 at a time when you were again in protection.  You were praying in your cell.  CCTV footage apparently confirms others entering though not the assault.  Again you experienced a loss of consciousness.  Although your Glasgow Coma Score was initially 15, this dropped to 3 out of 15 en route to hospital.  You underwent an MRI brain scan which revealed several foci of signal loss in various regions of your brain.  You were diagnosed with a mild head injury.  You also sustained a displaced nasal fracture which was treated under general anaesthetic.  Again the head injury is said by medical experts to have exacerbated your brain injury originally inflicted in 2016 and exacerbated the defecits in your cognitive functioning. 

29      When the matter was to return to this court on 16 July you were still in hospital.  That extended period of hospitalisation was because during your period as an inpatient you experienced several episodes of loss of consciousness.  You also experienced a left sided facial weakness and dysphagia.  You were discharged on 17 July and it was noted that you would require multidisciplinary rehabilitation.  On 14 July 2018 you were found non responsive in your cell.  It appears that since the August 2017 assault you have begun experiencing seizures, falls and blackouts, sometimes occurring several times a day. 

30      This matter returned to court on 20 August for the evidence of Mr Money.  It is clear from his evidence that prisoner placement in general is a complex and multifaceted process.  Where a prisoner has particular personal needs this adds a layer of complexity.  In addition where there are issues related to other prisoners within the prison population this creates additional challenges. 

31      As expressed to counsel, it would be impossible for me to conclude whether you were at times during your periods in custody the protagonist or the victim in relation to the need for you to be placed in protection.  Of some concern however was the fact that those persons ultimately responsible for your management and placement were unaware of the fact you had suffered a significant acquired brain injury as a result of the November 2016 assault.  Further that some of the information regarding your medical needs did not seem to be known to the prison authorities. 

32      As at 20 August in addition to the recurrent falls and seizures, you were finding walking difficulty. You required the use of two walking sticks, you were experiencing loss of bladder control, and you were having difficulties with basic tasks such as dressing and feeding yourself.  Your expressive language difficulties have worsened.  It is apparent that your speech had slowed and you have expressive language problems including a stutter.  Though some of those traits were present after the November 2016 assault, they had become considerably more apparent since the July 2018 assault.

33      It is unclear to me whether the recommendations of Dr Treeby had been communicated to the prison authorities.  It does seem you were receiving regular appointments with Forensicare, however it is unclear to me what those involved.  As at August 2018 it did seem there was little physical rehabilitation occurring. 

34      Given the apparent deterioration in your mental and physical health state, in particular reported by your family, your counsel sought time to enable a further neuropsychological assessment to be conducted.  I received a second report of Dr Matt Treeby dated 24 September 2018.  There is of course great benefit in having the same person assess you who had assessed you approximately 18 months earlier. 

35      Dr Treeby opined in that September 2018 report that your premorbid intellectual function was estimated to fall in the low average range.  When he assessed you in April/May 2018, after the first and second assaults, he concluded that you had borderline intellectual function with a full scale IQ of 72.  On further evaluation conducted by him in September 2018, he found you were by then in the extremely low range with a full scale IQ of 66.  In addition to these matters you were also diagnosed with anxiety and recurrent depression including psychotic symptoms in the form of hearing voices of your deceased sister since the time of your first brain injury in 2016. 

36      You also reported additional trauma in the form of an alleged sexual assault by two fellow inmates in November 2017.  That matter has been referred to police.  You also reported to Dr Treeby that fellow inmates have attempted to radicalise you while in custody, using threats of harm.  You have received some letters with disturbing content from the person involved in the Bourke Street tragedy. 

37      Dr Treeby stated, '

"Mr Altaee has experienced at last three traumatic brain injuries while in custody, the first of which was severe and life changing.  He will experience lifelong cognitive impairment and permanent disability as a result of these brain injuries.  His overall intellectual ability now falls in the extremely low range and his marked cognitive impairment can be considered severe and permanent.  He also has associated physical disability characterised by left sided weakness, poor balance and difficulties with mobilisation and slow walking speed. 

Mr Altaee's marked cognitive impairment and physical disability has rendered him extremely vulnerable in the custodial setting and he would benefit from ongoing close monitoring and support during his time incarcerated so that he is protected from harm.  His brain has been rendered vulnerable and even minor blows to the head are likely to cause him additional cognitive impairment and disability."

38      Dr Treeby concluded that your brain injury, physical disability and psychiatric difficulties would make serving a custodial term more onerous.  He recommended eligibility for disability support services and a justice plan be considered.

39      Unfortunately the recommendation of ongoing close monitoring and support during time in custody seems to have translated to you spending considerable time in solitary confinement for your own safety.  I note Mr Money in evidence stated his experience of people with cognitive disorders is that they do not do well in very restricted regimes for very long periods of time, and ultimately there is likely to be some deterioration.

40      Following the August court appearance you were apparently told you would be placed into an assisted unit.  That had unfortunately not occurred by the time the matter returned to court on 3 October 2018 though I was later informed by material filed last week that it in fact occurred the day after that court appearance.  For a time you continued to be held in protection often with 23 hour lockdown.  Your counsel submitted that nothing had been done to address your significant difficulties despite the discussion during 20 August hearing.  Counsel appearing to prosecute the matter did not have instructions to counter those submissions.

41      On 3 October 2018 on the platform of Dr Treeby's report, counsel submitted that you should ultimately be released from custody onto a CCO with a justice plan.  Indeed on that day there was discussion about bail, however given your complex needs, a raft of supports would have been required to ensure your safety and the community's safety upon your release, therefore at that stage no bail application was made.

42      Your counsel submitted on 3 October that on the strength of Dr Treeby's report I should be satisfied that you fall to be considered under each of the six limbs of Verdins.  In relation to the first limb of Verdins it was sensibly accepted by counsel that any findings in relation to that limb need to be moderated because of the fact that you had already committed a number of serious offences while under the influence of drugs and that that scenario seemed to continue at the time of the offences before me.  Further, that attempts at therapeutic based penalties had been unsuccessful.  At the time of the commission of the offences before me in fact you were on a Community Correction Order and on bail. 

43      Trying to disentangle the impact of the severe brain injury sustained in November 2016 from the impact of significant polysubstance abuse in the period immediately preceding these offences is very difficult if not impossible.  However I am entitled to and I do rely on the comments by Dr Treeby, namely while opining that your pre-existing antisocial personality traits meant that you already met the full DSM-5 diagnostic criteria for antisocial personality disorder, Dr Treeby states, "Given the severity of the brain injury sustained, his decision making, impulse and emotional control and problem solving abilities would almost certainly have been impaired at the time."  He concedes this situation is of course exacerbated by the polysubstance abuse and prolonged sleep deprivation at the time of the offending.  Therefore, while I take into account the first part of Dr Treeby's opinion, I agree with the sensible concession made by counsel regarding limb 1 of Verdins.

44      Given the events subsequent to the November 2016 acquired brain injury as I have outlined, and in particular the significant deterioration to your cognitive and physical state since July 2018, I am however of the view that it is appropriate to take into account all other limbs of Verdins.  That is, your current state has a bearing on the kind of sentence which should be imposed and the conditions attaching to it.  General and specific deterrence which would have loomed large given the seriousness of these offences and of your prior criminal history, while not eliminated should be sensibly moderated. 

45      The prosecution accepted, but only to a degree, that limbs 5 and 6 pertaining to your time in custody apply.  In the face of the neuropsychological report which stated you were extremely vulnerable in the custodial setting, and despite the three assaults, that was in my view a difficult submission to sensibly maintain.  One small example is illustrative of this, namely that on 26 July 2018, you were taken back to emergency at Royal Melbourne Hospital having collapsed in your cell and hit your head.  This was apparently because despite being medically described as a falls risk, you were apparently not permitted to take your walking sticks into your cell. 

46      In describing the impact of cognitive difficulties since your severe traumatic brain injury in 2016, you have described difficulties with respect to attention, concentration, memory and problem solving.  You say you are slower to think, you say you are depressed and complain of ongoing difficulties with anxiety, insomnia and nightmares pertaining to past trauma, and you reported to

47      Dr Treeby that you constantly fear for your safety given the previous injuries you have sustained in custody and the threats reportedly levelled against you by multiple individuals.  I make those comments while repeating what I said earlier that it is clear at times, and it was accepted by your counsel that at some times you have been the protagonist; though this seems perhaps to have changed since the July 2018 assault.  In any event in my view limbs 5 and 6 are made out. 

48      Going forward in sentencing you I must of course regard not only your safety but the protection of the community.  Dr Treeby states the monitoring of your mental health remains extremely important and you would benefit from ongoing engagement with Forensicare.

49      Dr Treeby also concluded that you would benefit from referral to the NDIS upon release to the community.  He says you will require a formal adaptive functional assessment at the time of release to better characterise your ability to complete activities of daily living and to better identify your support needs.  All parties agreed that if I was to order a CCO it should be accompanied by a justice plan.  I requested both an extended presentence assessment for a Community Correction Order and a report for a justice plan. 

50      I indicated on 3 October that it was my intention to complete the matter when it returned on 12 November.  Unfortunately a justice plan was unable to be completed prior to that date based on the indication that a full assessment was required given the DHHS had not previously dealt with you.  The date nominated for return by DHHS was 19 December 2018.  Unfortunately my own unavailability due to hospitalisation meant the matter could not be completed on that date.  Instead an application for bail was made before another judge on 21 December 2018 and bail was granted. 

51      You were granted bail on strict conditions including residing with your mother and family.  Your sister had returned from interstate to live with your mother.  Your sister is a Victorian lawyer and gave an undertaking to report any non-compliance or other difficulties with your bail.

52      I have received information to the effect that you have complied with your bail conditions, both in a number of documents which have been tendered this morning and in further information given to me orally by your counsel.  You have met a curfew, you have been living as I have said with your mother and sister.  You have also undertaken an assessment on 22 January for drug and alcohol counselling.  You undertook your first session on 4 February and have another appointment on 18 February.  You are apparently engaging well.  I also received confirmation that you have been referred for psychiatric assessment and in fact that you have already consulted Dr Samir Ibrahim, consultant psychiatrist on one occasion. 

53      You have also been referred for physiotherapy and rehabilitation with an organisation called IPC Health.  You have also utilised GEO, an organisation whose sole purpose is to provide support to men released from Ravenhall through a continuum of care model where you can receive services and support on a voluntary basis.  You attended their centre on 2 January and met with your clinician and also your post release case worker.  You have sought telephone support on a number of occasions during January and I was informed this morning that that relationship is ongoing.  I did also receive confirmation that in October of last year you attended speech pathology sessions in custody via the GEO complex needs team. 

54      It was also confirmed that on the day after the 3 October hearing some changes were implemented by way of transferring you on 4 October 2018 to a 25 bed therapeutic unit in a community of offenders presenting with complex and/or challenging behaviours and needs.  You voluntarily chose to participate in the therapeutic regime of that unit and engaged positively.  The GEO letter on that subject attests to the fact that you received general support in particular helping you understand and come to terms with the changes to your physical abilities and to assist you plan for the future.  You have been assisted to make application for funding support through the NDIS. 

55      These are all positive steps.  It is apparent that you are trying to engage but that you will require significant support structures around you on an ongoing basis. 

56      I received an extended presentence assessment report.  Importantly when discussing your offending, the assessor says you did not justify or minimise it, you took full responsibility for your actions.  She says you appeared to demonstrate some insight into your offending including the antecedents to your behaviour.  You discussed with the assessor your cognitive impairment indicating that you have been struggling with day to day tasks in custody with your memory.  She opined that an outreach support program would help you through an outreach worker who could assist with transport and maintenance of your appointments if released onto a Community Correction Order.  She referred to a program called, "Community Access West" for men with acquired brain injury.  Ongoing engagement with your general practitioner and with your psychiatrist as well as drug and alcohol assessment and treatment will be important.  Ultimately though not assessed as falling within the criteria for intellectual disability by DHHS you would seem to meet the test of having an acquired brain injury.  You were not assessed as suitable for a justice plan because of that distinction.

57      For completeness, before passing sentence, I note that for reasons discussed during the course of the plea, issues of parity in my view are now limited, both by the events just prior to and now subsequent to the offending.  In particular for example I did not find the principles of Verdins applied to Mr Piacentino, along with other distinctions, for example his use of the chainsaw and also his slightly older age.

58      For the reasons I have outlined I propose to sentence you as follows.  If you can stand Mr Altaee.

59      Although ordinarily I would be imposing distinct sentences in relation to the events on 1 March by way of some cumulation, given the situation which has evolved during your time in custody, and in particular your physical and cognitive deficits, I propose to impose one aggregate sentence for the charges which are before me.  That is the charge of armed robbery, the charge of reckless conduct endangering serious injury, of criminal damage, of possession of a drug of dependence, and of the summary charges of committing an indictable offence on bail and unlicensed driving. 

60      Given all the circumstances I have outlined, I propose to impose an aggregate sentence of 612 days' imprisonment plus a three year Community Correction Order. 

61      In relation to the Community Correction Order, I am intending to impose the – it occurs to me I cannot do it that way.

62      MR SINGH:  With respect Your Honour, in my submission Your Honour can't aggregate the indictables and the summary.  The indictables certainly and the summary certainly but the two together in my respectful submission can't be placed in one aggregate sentence.

63      HER HONOUR:  Yes that occurred to me as I was reading it our Mr Singh.  And also the difficulty with the time in custody.

64      MR SINGH:  Yes.

65      HER HONOUR:  All right just give me a minute. 

66      MR SINGH:  In one sense Your Honour, given that the sentence Your Honour is seeking to impose is 612 days, that is under two years.  Your Honour doesn't have to impose a minimum term.

67      HER HONOUR:  No.

68      MR SINGH:  Because that would be 630 days or thereabouts, so you have avoided that with respect.

69      HER HONOUR:  Yes.

70      MR SINGH:  So as long as there is less than 12 months from this day to serve, and there is given Your Honour's sentence, then Your Honour can impose the CCO as Your Honour suggested or as Your Honour intends with respect.

71      HER HONOUR:  Yes.  Well the other – and I've grappled with how best to do this and obviously I haven't been very successful.  The other way of dealing with it, but I may still run into that difficulty, would be to impose the 612 days in relation to the armed robbery and the Community Correction Order on the remaining charges. 

72      MR SINGH:  Yes.  But remember in relation to the summary charge - - -

73      HER HONOUR:  Yes.

74      MR SINGH:  - - - a three year Community Correction Order is out of - - -

75      HER HONOUR:  Yes.

76      MR SINGH:  - - - out of bounds.

77      HER HONOUR:  Yes.

78      MR SINGH:  If I may say.

79      HER HONOUR:  Apart from that issue - - -

80      MR SINGH:  Yes.

81      HER HONOUR:  - - - do you say there's any difficulty with me imposing the 612 days' imprisonment on the armed robbery only.

82      MR SINGH:  Yes.

83      HER HONOUR:  And then the CCO on the remaining charges putting aside the summary charges at this point.

84      MR SINGH:  No Your Honour.

85      HER HONOUR:  All right.  Mr Patton, do you - - -

86      MR PATTON:  I agree with that Your Honour, yes.

87      HER HONOUR:  Yes all right thanks.  So it is just a matter then of the committing an indictable offence on bail and the unlicensed driving that needs separate reflection.

88      MR SINGH:  Your Honour, during the course of the plea when Mr Gullaci was involved, I think we didn't seek to press the committing indictable offences whilst on bail summary charges.  The only summary charges that we pursued were the driving – excuse me.

89      HER HONOUR:  Sure. 

90      MR SINGH:  Your Honour I'm corrected, there's one of each - - -

91      HER HONOUR:  There's one of each yes.

92      MR SINGH:  - - - instead of two of each it was originally - - -

93      HER HONOUR:  That's right yes.

94      MR SINGH:  Yes.

95      HER HONOUR:  All right just give me a moment then thanks.  You can have a seat Mr Altaee.

96      MR PATTON:  With respect to that, Your Honour could impose a distinct sentence for the summary charges and order it be served concurrently.

97      HER HONOUR:  Concurrently yes.  That's what I plan to do.

98      MR PATTON:  That would be the cleanest way out.

99      HER HONOUR:  Thanks very much.  All right if you can stand again Mr Altaee.

100     So in relation to Charge 1 which is the charge of armed robbery, you are convicted and sentenced to 612 days' imprisonment.  And I declare that that period has already been served.

101     In relation to Charge 2, reckless conduct endangering serious injury, Charge 3, criminal damage, and Charge 4, possess a drug of dependence, you are convicted and I impose an aggregate sentence of a three year Community Correction Order.

102     The conditions of that order are as follows and are drawn in essence from the extended presentence report. 

103     That is, that you be under supervision. I impose a mental health condition, in other words that you attend for assessment and treatment as directed for your mental health. 

104     I impose a condition for assessment and treatment in relation to drug and alcohol use. 

105     I impose a medical assessment and treatment condition, namely again that you attend for assessment and treatment in relation to your medical health.

106     I impose an offence specific program as directed by Corrections. 

107     I propose to impose a non-association condition in relation to Mr Piacentino.  So in other words you are not to associate with Mr Piacentino.

108     I propose to impose judicial monitoring, namely that I will bring you back in six months.  I would ordinarily have made that sooner but given you have been on bail for a time, and I have heard that is positive, I propose to bring you back for one more time. I hope in six months to hear how you are doing, and I will set that date in just a moment.

109     Mr Patton, did you want to make any submissions in relation to a curfew.  It was, I will be frank about it, I would have imposed it but for the fact that he has been on bail under that curfew.

110     MR PATTON:  I think the purpose of a curfew is to keep someone under lock and key as it were.

111     HER HONOUR:  Yes.

112     MR PATTON:  I don't know that Mr Altaee, given his present physical condition is at significant risk of wandering the streets at night committing offences.  He has shown compliance for some six weeks with the curfew that was imposed on bail.

113     HER HONOUR:  Yes.

114     MR PATTON:  I would urge Your Honour not to impose it.  Having said that I don't think he's going to be going out of an evening anyway.

115     HER HONOUR:  All right.  Mr Singh, did you want to say anything about that?

116     MR SINGH:  Yes I am a little less confident than our learned friends.  Perhaps a modification to the curfew that he be allowed to leave the property if in the company of his mother or his sister or something of that nature.  The concern is that if he is unsupervised and outside of curfew hours then he is perhaps vulnerable, that's all. If Your Honour please.

117     HER HONOUR:  Thanks very much. 

118     Given this is still an early stage in my view of his transition back into the community, I propose to order a curfew in the current terms for another six weeks but I will make that adjustment so that there is an exception if you are in the company of your mother or your sister beyond those curfew hours often until six, all right thanks.

119     So that curfew still applies for another six weeks, 10 pm to 6 am unless you are in the company of your mother or your sister. 

120     In relation to the charges of committing an indictable offence on bail and unlicensed driving, in relation to each of those charges you are convicted and sentenced to one month imprisonment, and I make no order in relation to cumulation.

121     In relation to s.6AAA, but for the plea of guilty the sentence I would have imposed – it is very difficult as it is always but in these circumstances would have been an aggregate total effective sentence of four years' imprisonment with a non-parole period of the time served, namely 612 days' imprisonment. 

122     I propose to make the orders for disposal and forfeiture in the terms sought.

MR SINGH:  If Your Honour please.

HER HONOUR:  Have a seat Mr Altaee.  Mr Altaee, my associate will print out that Correction order and I will need you to sign it to say that you're willing to undertake that Community Correction Order.  Do you agree to undertake it?

OFFENDER:  Yes I do Your Honour.

HER HONOUR:  All right.  And you're aware that if you commit any further offences during the period of that order you will be in breach of it and you will come back to me to be resentenced.  Do you understand that?

OFFENDER:  Yes I do Your Honour.

HER HONOUR:  All right thanks very much.  I'll have that printed out.  Any issues?

MR PATTON:  Just the formalities, if Your Honour could also confirm that the two months for the summary charges is encapsulated by the pre-sentence detention as well.

HER HONOUR:  Yes it is, yes thanks.

MR PATTON:  Thank you Your Honour.

HER HONOUR:  All right thank you, we'll have that printed out.  The date in relation to judicial monitoring, and of course counsel don't really need to be here unless there's any issue, but I'm proposing 12 August which is a Monday and it will be at 9.30.

MR PATTON:  Thank you Your Honour.

HER HONOUR:  Thanks very much. 

MR PATTON:  Your Honour, might my instructor just approach the dock as well?

HER HONOUR:  Sure, thank you.  So Mr Altaee, this completes these matters in one way, namely that the court proceedings for your plea and your sentence are completed, other than I will see you in six months and I hope by then there will be some positive reports.  Still you have had already some positive reports from your time on bail and I will look forward to seeing some more information about how you are going.  But otherwise they are completed.  Of course for you though, the other practical thing is you are now on a Community Correction Order so you will need to report in within a couple of days and you will need to agree and abide by the directions given to you by the Office of Corrections.  And I am sure some of that will be basically that you will be doing what you are already doing with their additional support, all right.

OFFENDER:  Yes Your Honour, thank you very much, I really appreciate it.

HER HONOUR:  All right so good luck with all of that.  I hope it goes well.  Thanks very much counsel for your assistance in a difficult matter.

MR PATTON:  if Your Honour please.

HER HONOUR:  Thank you.

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