Director of Public Prosecutions v Anwari
[2024] VCC 1911
•26 November 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01916
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MEHDI ANWARI |
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JUDGE: | KARAPANAGIOTIDIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 01 November 2024 |
DATE OF SENTENCE: | 26 November 2024 |
CASE MAY BE CITED AS: | DPP v Anwari |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1911 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – sentencing
Catchwords: armed robbery – intentionally cause injury – s.5(2H) Sentencing Act risk of deportation - plea of guilty – youthful offender – Bugmy
Legislation Cited: ss 5(2H)(e), s 6AAA, s 18 of the Sentencing Act 1991 (Vic);
Migration Act 1958 (Cth)
Cases Cited: Farmer v The Queen [2020] VSCA 140; DPP v Lombardo
[2022] VSCA 204; Fariah v The Queen [2021] VSCA 213;
Azzopardi v The Queen [2011] VSCA 372; Bugmy v The Queen
[2013] HCA 37; Akot v The Queen [2020] VSCA 55; Boulton v
The Queen [2014] VSCA 342.
Sentence: Community corrections order for a period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Triandos | Office of Public Prosecutions |
For the Offender | Mr J. Mortley | Sveit Lawyers |
HER HONOUR:
1Medhi Anwari, you have pleaded guilty to one charge of armed robbery and one charge of intentionally cause injury.
Circumstances of offending
2The circumstances of your offending are outlined in the prosecution opening of 21 November 2024 and were read out in court today. The victim of your offending was Muzey KinfuKinfu who was 20 years of age at the time. In summary the charges are put as follows.
3Charge 1, represents your use of a knife to cause injury to Mr Kinfu's left upper back and left arm and your complicity in the assault committed by your co-offenders which caused injuries to his face.
4Charge 2, represented your use of a knife to cause injuries to Mr Kinfu's left and right upper thigh in the company of your co-offenders and is the armed robbery charge.
5You were 19 years of age at the time and your co-accused, your brother Sayed, or Asad Anwari was aged 20, and Jack Atwell was also 19 years of age.
6On 13 March 2023 Mr Kinfu arranged to meet up with a female known to him as ‘Mary’, who he had met and exchanged phone numbers with at a Melbourne nightclub a week earlier. At approximately 8:30PM he drove his vehicle, a 2012 blue Mitsubishi Lancer sedan from his home address and, as nominated by ‘Mary’, to Brookside College and then to Federation Way, Caroline Springs.
7Upon arriving at Federation Way, Caroline Springs, ‘Mary’ and two unidentified female associates approached and entered Mr Kinfu's vehicle. On entering the vehicle ‘Mary’ told Mr Kinfu to drive to an unknown Cellarbrations liquor store which was approximately a 20 minute drive from their location. On discovering that it was closed, ‘Mary’ told Mr Kinfu to return to Federation Way. At this location Mr Kinfu and ‘Mary’ exited the vehicle and entered the nearby Stax liquor store. Once inside the store, ‘Mary’ asked Mr Kinfu for the keys to his vehicle and he handed his car keys to her and she left the store.
8After approximately two minutes Mr Kinfu exited the liquor store to look for ‘Mary’ and get his car keys. Upon locating ‘Mary’, Mr Kinfu asked her for his car keys. When Mr Kinfu did this ‘Mary’ told him that she had given them to her ‘friend’. Mr Kinfu then asked the friend for his cars, but she denied that she had taken possession of his car keys.
9While standing beside his parked vehicle, Mr Kinfu was approached by a male who offered to 'assist’ him in locating his car keys. The male then led Mr Kinfu to a group of approximately five males which included you, your brother, and Mr Atwell who were loitering nearby drinking alcohol. Mr Kinfu asked your group if they had his car keys and was told no.
10At approximately 9:08PM, Mr Atwell punched Mr Kinfu with a closed right fist in the forehead, causing him to fall to the ground and the group of males began to punch and kick Mr Kinfu while he was on the ground (Charge 1).
11At approximately 9:10PM, Mr Kinfu stood up from the ground and attempted to run away. You followed him and removed a small knife from your pants pocket. Holding the knife in your right hand you stabbed Mr Kinfu, causing a stab wound to the left side of his upper back and a laceration to his left arm (also part of Charge 1). Your brother then approached Mr Kinfu and made demands for his property. Mr Kinfu handed over his Apple iPhone and wallet with various cards.
12As the group of males continued confronting Mr Kinfu, Mr Atwell wrapped his left arm around his neck and placed him in a headlock saying 'don't shout, don't shout'. While Mr Kinfu was in the headlock your brother made further demands for Mr Kinfu's mobile phone and internet banking passcodes. Mr Kinfu refused to provide his mobile phone passcode and said he did not know his internet banking passcode.
13While Mr Kinfu was still being held in the headlock you again approached him with the small knife in your right hand and stabbed him in the left upper thigh area and a laceration to his right thigh, saying 'don't shout, why are you shouting' (which forms part of Charge 2).
14The group of male offenders continued to kick and punch Mr Kinfu before Mr Atwell threw him to the ground and kicked him in the stomach (part of charge 1). ‘Mary’ then told the males to ‘Stop’ and Mr Kinfu was released from the headlock and ran away, with one of the men chasing him, while bleeding from the stab wounds he had sustained.
15At approximately 9:20PM Mr Atwell and two unidentified co-offenders entered Mr Kinfu's 2012 blue Mitsubishi Lancer sedan and drove away.
16Between 10:30PM and 11:00PM, Mr Kinfu arrived at his home and his brother and sister drove him to the Sunshine Hospital.
17On 15 March 2023, Mr Kinfu was released from hospital.
18At approximately 10:18PM a witness and non-duty paramedic from Ambulance Victoria, Jacarath Jaselle, saw several teenage males running away from Mr Kinfu's 2012 blue Mitsubishi Lancer sedan which had been involved in a collision on the corner of East Esplanade and Taylors Road, St Albans. Mr Jaselle saw the males then enter a white Audi sedan, unknown registration, before it drove away travelling east along East Esplanade.
19At approximately 10:29PM, First Constables Tyson Lyons and Alex Reid located Mr Kinfu's stolen Mitsubishi Lancer sedan. First Constable Reid took a series of photographs of the vehicle and items contained within. First Constable Lyons located and seized Mr Kinfu's Mitsubishi Lancer car key and silver Apple iPhone 8. Police tried contacting him and then attended his home and were told that he was at the hospital, where they later spoke with him.
20Police undertook further investigations as outlined in the prosecution opening including interrogating call charge records and identifying closed circuit television footage, ultimately leading to your arrest on 23 March 2023. Medical records from Western Health obtained by investigators indicate that during the incident Mr Kinfu sustained a 1.5 centimetre stab wound to his left posterior upper thorax, a 1.5 centimetre stab wound to his left posterior upper thigh, a 2 centimetre laceration to his inner upper right thigh, and a superficial laceration to his left arm that needed suturing, as well as head and facial injuries.
21You were arrested on 23 March 2023 as already noted, and remanded overnight to the filing hearing, where bail was granted. You have one day in pre-sentence detention in total.
22Your sentence resolved at a sentence indication hearing. I take into account the material and submissions filed and relied upon by both prosecution and defence at the sentence indication hearing and at today's plea hearing. At today's hearing both Counsel indicated that they largely deferred to and relied upon the submissions made on the previous occasion.
Gravity of offending
23Mr Anwari, the offending that you have pleaded guilty to is plainly serious, as reflected in the available maximum penalties. The charge of intentionally cause injury attracts a maximum term of 10 years' imprisonment. The charge of armed robbery has a maximum sentence of 25 years' imprisonment and in your case is a category 2 offence. In other words, s5(2H) of the Act requires the imposition of a custodial sentence for this offence unless the circumstances set out in paragraph (a)-(e) of that sub-section exist. I will return to this in a moment.
24At both the sentence indication and for the purpose of sentencing you, I have watched the recorded video footage which lasts for four minutes and
12 seconds. It shows a group of males menacing and assaulting a young man. The assault on Mr Kinfu was brutal and cowardly, betraying a deplorable mob mentality. It was entirely unprovoked and he was defenceless. I accept given the circumstances, and even without the benefit of a victim impact statement, that the experience would have been a terrifying one for him. As the prosecution submit, this was serious offending and a public display of gratuitous violence. Considerations of general and specific deterrence loom large.25As for your own conduct, you joined in the group attack and you were equipped with a knife, and on two separate occasions you approached and stabbed Mr Kinfu. On the last occasion the footage shows that you distanced yourself from the group, returned and then you take two stabbing motions towards his upper thighs, at a time when he is surrounded by the others and well outnumbered.
26The intentionally cause injury charge is a rolled-up one and I take into consideration all of the acts that constitute it. I also take into account the various and multiple injuries suffered by Mr Kinfu as outlined in the prosecution opening.
27You also used your knife in connection with and in order to affect the theft of his property.
28In my assessment of the gravity of your offending I do take into account that although constituted by separate acts, your offending occurred within a relatively confined period of time. The prosecution submit that there was a level of planning involved in the offending. Beyond a degree of planning that may be suggested by you and your co-offenders acting in complicity during the offending itself, I am unable to find that your offending or involvement was premeditated or preplanned.
29In your recent assessment with Corrections you stated that at the time of your offending you were under the influence of Xanax and alcohol, stating that the combination of the two was 'not good' and that your memory of the events was 'pretty blurry'. Prior to the offending you were all drinking and then 'drugs came out'. I accept that you were likely disinhibited as a result of your consumption of alcohol and drugs, but of course this is not an excuse and does not reduce your moral culpability.
30Your counsel submits that you found yourself there on the day because of your brother. You had met up with him earlier in the day to give him his telephone. You then met up with other people, commenced drinking alcohol around midday, and then consumed Xanax later in the afternoon.
31While you were clearly capable of making your own decisions, I accept that your brother exercised some influence over you, introducing you to drugs and alcohol at an earlier time and the wrong crowd. Given your family's grim circumstances you grew up with your older brother as a father figure, with you aspiring to 'follow [in] his footsteps'.
32Pursuant to s5(2H)(e), your counsel submits that there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3. Given the centrality of this provision it is appropriate this issue at the outset.
Mandatory provisions
33The scope and operation of s5(2H(e) is outlined in s5(2HC) which provides as follows:
In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1) ;
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence;
(c) must not have regard to—
(i) the offender's previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
34In addition, subsection 2I provides that:
In determining whether there are substantial and compelling circumstances … the court must have regard to—
(a) the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community corrections order in accordance with section 44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
Subject to [these provisions] a court must not impose a sentence that is more severe than what is necessary to achieve sentencing purposes and must not impose a sentence that involves the confinement of the offender, unless it considers that the purpose of sentence cannot be alternatively achieved.
35The Court of Appeal has also offered guidance in the application of these provisions. In Farmer v The Queen the Court described s5(2H)(e) as a very high hurdle that will not often be surmounted[1]. The legislative norm is that category 2 offences will attract an immediate term of imprisonment, drug treatment or detention in a Youth Justice Centre or Youth Residential Centre.
[1]Farmer v The Queen [2020] VSCA 140.
36In the case of Lombardo, the Court stated that:
… it is apparent that the inquiry under (2H)(e) has two key steps. First, the court must identify whether there are 'substantial and compelling circumstances'[2].
[2]DPP v Lombardo [2022] VSCA 204.
37That is circumstances that are weighty and forceful and powerful issues. Whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence.
The second critical step, if the circumstances are substantial and compelling … asks whether they are also 'exceptional and rare'.
38This is to be regarded as a composite phrase. It is a threshold which must be met before it is open to impose a non-custodial sentence. Properly understood, it refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence:
Applying the two steps to the mandated analysis calls for the sentencing judge to make an 'evaluative judgment' once the underlying facts have been established, and unaffected by notions of burden of proof. It is possible that a set of circumstances may engage the exception in combination, even where the … circumstances are mainly, or even wholly, 'relatively common'.
39In the case of Fariah v The Queen, the applicant was 21 years of age when he committed an armed robbery[3]. He was born in Somalia and raised in an environment of war and conflict. Both his parents were killed when he was an infant and he emigrated to Australia, helped by his supportive older sister. He was diagnosed with suffering from complex trauma, along with various alcohol and substance use disorders, together with clinically significant depressive and Post Traumatic Stress Disorder symptoms. A complaint was made that the sentencing judge erroneously applied s5(2H)(e) and should have found the provision engaged.
[3]Fariah v The Queen [2021] VSCA 213.
40In dealing with these submissions the Court stated at paragraph 25:
We also consider that the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare. Every case will necessarily depend on its particular facts. Circumstances which individually are relatively common may in combination enliven the exception …. Indeed, in our view, the applicant's appalling childhood experiences, coupled with his youth and other factors relied upon, were sufficient in combination to engage [it][4].
[4] Ibid [25].
41In another case of Makieng v The Queen, the applicant pleaded guilty to charges of aggravated home invasion and armed robbery and was on bail and Youth Parole at the time of the offending[5]. In that case the Court of Appeal considered that the constellation of factors including the applicant's youth, childhood of trauma and disadvantage overseas, and his assistance to police on an unrelated matter, did not compel the judge to find the existence of substantial and compelling circumstances that are exceptional and rare.
[5]Makieng v The Queen [2022] VSCA 52.
42Within the bounds of reasonableness, whether an applicant's or an accused person's circumstances meet the threshold requirement of s5(2H)(e) is ultimately for the sentencing judge to determine and evaluate.
43In summary, your counsel submits that the cumulative effect of the following matters amount to substantial and compelling circumstances that are exceptional and rare:
·Your young age;
·The absence of a criminal history;
·The plea of guilty and the facilitation of justice;
·Your personal circumstances which include a history of poverty and trauma;
·Subsequent to being charged the loss and grief experienced arising from the death of your younger brother;
·Your diagnosis of Post Traumatic Stress Disorder and generalised anxiety disorder;
·Your exemplary work ethic;
·The reduced need for specific deterrence coupled with your compliance with Youth Justice since your arrest; and
·The risk of deportation.
44The prosecution submit that these factors do not meet the exception pursuant to s5(2H)(e) and that the overall nature and gravity of your offending calls for an immediate term of imprisonment to be imposed. It was submitted that the case of Fariah v The Queen involved circumstances that were 'worse or more compelling' than the factors relied upon on your behalf.
Your young age and lack of criminal history
45Turning to your age and lack of history. You were born in December 2003, meaning that you are a ‘young offender’ within the meaning of s3 of the Sentencing Act 1991. You were 19 at the time of the offending and you are turning 21 at the end of this year. Your youth must be given significant weight as the higher courts have often emphasised, youth must be a primary consideration when sentencing a young person[6].
[6]See also Seualega; R v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] VSCA 372.
46In Azzopardi v The Queen, Redlich J identified three considerations which underlie the general primacy afforded to an offender's youth as a sentencing consideration[7].
First, young offenders being immature are prone to make ill-considered or rash decisions. In that respect they may lack the degree of insight, judgement and self-control possessed by a more mature adult. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
Secondly, the courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’.
Thirdly, the courts are conscious that incarceration of a young person for an extended period in adult prison may be counterproductive by introducing an offender to, and entrenching him or her in, the antisocial influences of fellow prisoners.
[7] [2011] VSCA 372.
47Given the legislative provisions that apply in your case, the usual prominence given to rehabilitation for youthful offenders must however give way to general deterrence and denunciation. As was seen in the cases of Farmer and Fariah, your youth nevertheless remains an important consideration.
48In her report psychologist, Ms Gina Cidoni, notes that at [43]:
Despite [your] maturity in certain areas such as [your] role as the primary provider for [your] family, [you] displayed signs of emotional immaturity linked to [your age] and possibly [your] past traumas.
49I take into account that you also have no prior convictions or criminal history. For completeness, I note that you were on bail at the time for a matter involving your sister. As confirmed with Counsel today, you were subsequently dealt with for this offending and received a without conviction bond in the Children's Court.
Your plea of guilty
50You entered a plea of guilty following a sentence indication on 1 November 2024. Your trial that was listed on 6 November 2024 was then vacated. The main issue for trial related to your complicity in any theft and the usage of the knife for the purpose of the robbery. Your plea is not an early one, noting that in any event, the Court is not entitled to take into account the early nature of a plea on this assessment.
51I take into account your plea of guilty itself and your expressions of insight and remorse. Ms Cidoni considers that your response to the offences suggest remorse as you appear to be aware of the impact of your offending and you have the capacity for self-reflection (at [68]). In this regard, I note that the recent Corrections assessment records that you feel ‘regret’ for your actions and that ‘it was a mistake’.
52In your letter to the Court you say 'I am sorry for all my wrongs and I would do anything to make up for the things that I have done wrong to people'.
Personal circumstances, including history of poverty and trauma
53Turning to your personal circumstances. They were canvased by your counsel and further in the report of Ms Cidoni of 28 October 2024. I am mindful that I must give less weight to an offender's personal circumstances than to the nature and gravity of the offending, when considering these provisions.
54You were born in Sangi-Masha Village, Ghazni City, Afghanistan. Your family lived in a village where you farmed to produce food due to extreme poverty. You reflected in your discussions with Ms Cidoni that your childhood felt 'unsafe and uncertain' and you now realise that you 'never truly experienced a normal childhood'.
55In 2012 when you were about nine, a bomb blast occurred approximately 100 metres from where you and your brother were. You remember the chaos and fear and your uncle, who was then aged 20, lost one of his legs in the explosion. Travelling in Afghanistan was always dangerous, and you and your family often feared that it might be the last time you would see each other. You recall the frequent sound of gunfire and regularly experiencing flashbacks.
56You had no opportunity for formal schooling in Afghanistan as your family were too poor to send you to school. Instead, from around the age of five, you were put to work on the farm.
57Your father fled Afghanistan and sought asylum in Australia. He spent several months in immigration detention on Christmas Island awaiting the processing of his application. He had been living in Australia since 2010. You and the rest of the family arrived in Australia in 2015 when you were approximately 11 years of age.
58You and your family had to manage without him for several years, which was very difficult. In your letter to the court you write:
I grew up in Afghanistan without a dad, so my older brother was the father figure for me throughout those years since we had no one else there, just me and my family, my Mum, sister and two brothers. In Afghanistan we had a lot [of] traumatic experiences from shootings and bombings to being robbed, experiences that still replay in my head to this day ...
59In Australia your family initially rented a one-bedroom apartment in Sunshine North and later moved to Caroline Springs. Your family recently moved to Frasier Rise where the family bought a home. Previously your father worked in the scrap metal industry.
60On arriving in Australia you attended an English language school. You found education very challenging due to the language barriers and the added pressure of your parents' high expectations of you. You ended up leaving school in Year 11 in order to start working. Your first paid job was in a fish and chip shop where you worked for about four months. You then worked in an internet café from 2022 until August 2023. You currently work full time in Caroline Springs at a kebab shop.
61Ms Cidoni notes that in terms of your mental health you struggle with high stress levels which you attribute to your upbringing and exposure to war in Afghanistan. You describe feeling frequently depressed. You initially started drinking alcohol to cope and it offered you some escape. Your older brother and co-accused had left school early and became involved in alcohol and drugs. Initially he kept it well hidden from the family. In around 2012 your brother invited you to a friend's birthday party, you saw him drinking and decided to copy him. You instruct that the effect of relief was immediate and from that moment you commenced drinking daily.
62By late 2021 you were consuming about 1 litre or so of spirits daily, often experiencing blackouts. Also in early 2023 until June 2023 you started using Xanax which your brother also introduced you to. Though a challenging process, you stopped drinking in November 2023. You have also not engaged in any substance use for almost 12 months.
63In terms of your personal history, Mr Anwari, I accept that it has been one marked by disadvantage, trauma and displacement. As a young child and up until around the age of 11 when you came to Australia, you experienced constant instability and insecurity, and you were exposed to violence and the devastating effects of war in your country. In sentencing you, I accept that the Bugmy principles have application[8]. Adopting the general approach, I accept that your subject culpability cannot be equated with that of a person who has had the advantage of a stable and safe environment, free of trauma and an exposure to violence. These complex factors are relevant to the instinctive synthesis and the sentence to be imposed in your case.
[8]Bugmy v The Queen [2013] HCA 37.
Your recent loss and experience of grief arising from the death of your sibling
64As already noted, you were arrested in March 2023. Your family had booked a three month trip to Afghanistan for May, being the first time since coming to Australia that they would be returning to their country of origin. They travelled on 31 May 2023 and you had to remain in Australia due to your bail conditions. You had some support from your uncle but otherwise managed the family home alone during this period while your parents were overseas and your older brother was in custody.
65Your nine-year-old brother, Mohamed, who had a heart condition died in 2023 during this trip. He fell ill and despite visiting several hospitals he was unable to receive effective treatment. Your family attended six or seven hospitals before finally being told that they would need to travel overseas by plane to find a hospital that could assist. Mohamed passed away before the family could fly out. He was buried in Afghanistan and your family do not know the precise cause of death.
66You were unable to attend the funeral and did not get to say goodbye to him. During this period you were grieving and living in self-imposed isolation in a state of shock. In the Youth Justice progress report of 21 July 2023, you were noted to be engaging honestly and confided that you were not coping as you were struggling with your grief. During this period your mood was observed to be lowered and you were struggling with sleep and with eating. You state in your letter that:
Things got harder last year when my little brother passed away in Afghanistan. I had no one here with me and my family was in Afghanistan, my brother was in prison. I was by myself in Australia where I had to deal with the loss of my brother passing away in March 2023. My close friend, ‘Deng’, had committed suicide. Last year was the hardest year of my life. I couldn't take it any more. I tried committing suicide and I used to cut my hands to deal with my issues, to which I still have the scars. My parents come back from their trip to Afghanistan, my mum was in the worst condition I have ever seen her, she was really bad depression. My dad had to always look after her. I had to step up and be the support for my family financially and emotionally.
67Your mother has been profoundly affected by the passing of her son. Your father presently does not work as he now primarily takes care of her. You are the main income earner for the family at the moment. Your older brother was released from custody in December 2023 and it was hoped that he might be able to support and assist the family. You state however that he is 'stuck in his old ways' and he has since returned to custody, which has further impacted your mother's health.
68To be clear, family hardship was not relied upon by your Counsel and I have not assessed these circumstances against this high threshold. However, I have taken into account as an important factor the significant loss and grief you have experienced since you have been charged and its impact on you. Also, rather than derailing you or further entrenching you in the criminal justice system, it appears to have provided you with the impetus to 'step up' and commit yourself to change.
Your diagnosis of post-traumatic stress disorder and generalised anxiety disorder
69Ms Cidoni administered the MCM1-1 which is a standardised 195-item self-report questionnaire designed for use with adult clinical populations. It assesses the presence of clinical syndromes in the context of personality traits or disorders, and assists in conceptualising these emotional and behavioural patterns on a spectrum of adaptive to maladaptive levels of functioning. Ms Cidoni considers that your experiences of fluctuating mood, distressing memories and limited coping mechanisms likely affected your behaviour at the time of the offending, impacting your ability to make considered decisions (at [52]). I note in this respect that you were, on your own account, significantly impaired by substances.
70Ms Cidoni's assessment indicates that you meet the DSM-5 TR criteria for generalised anxiety disorder as you frequently experience persistent and excessive worry that impacts your daily functioning (at [53]); your anxiety, which lacks a specific focus, creates pervasive restlessness and tension underscoring generalised distress affecting various aspects of your life (at [54]). She also opines that you meet the criteria for Post Traumatic Stress Disorder. She states the following at paragraph 54:
He re-experiences past traumatic events through flashbacks and heightened arousal, which disrupts his everyday functioning. These symptoms are related to the traumatic events he witnessed in Afghanistan, which continue to resurface, causing him to avoid specific triggers and experience significant distress. His hypervigilance and heightened reaction to trauma related stimuli align closely with the re-experiencing avoidance and hyperarousal criteria central to PTSD.
71In your letter to the Court you refer to your mental health struggles and the cultural shame in speaking about such matters. You refer to previous suicidal thoughts and attempts and you instruct your counsel that you have panic attacks at least once per day, mostly at nighttime, intrusive thoughts and flashbacks to times in Afghanistan.
72Ms Cidoni also opines that your history of substance use meets substance use disorder criteria, as you previously relied on alcohol and Xanax to manage your emotional struggles. Further, Ms Cidoni considers that in a prison setting your PTSD and generalised anxiety disorder would likely exacerbate your vulnerability to stress. She concludes at paragraph 65:
Together these factors would likely intensify the psychological strain of imprisonment, placing [you] at risk of deteriorating mental health. [Your] youth and impressionability increase these risks, impacting [your] capacity to establish constructive relationships or seek appropriate support.
73I take these matters into account.
Other factors
74Consideration of specific deterrence and the need to protect the community may be taken into account in this assessment, without treating them as bearing on your prospects of rehabilitation[9]. In your letter, you refer to how you have changed your life around, 'I have been clean from alcohol and drugs for nearly a year job. I have a good paying job. I am the only one in my family bringing income'.
[9]Lombardo [82].
75Your current employer, Ahmet Gurkan, provided a letter to the Court. He is the director of Galata Kebab and Grill and you have been a part of his team for some time now. You spend 50 plus hours working, six days a week. He speaks of your progress over this time and of your ambitions and goals. He has entrusted you with working in his small family business and you are also a frequent visitor to his home.
76The Youth Justice reports confirm that you were released on supervised bail on 24 March 2023. You were under the care and supervision of Youth Justice for nearly eight months, up until mid-November 2023. The reports document some of your challenges during this period, as already canvased. The report of 9 November 2023 refers to you taking bail compliance seriously, as demonstrating ‘a strong level of commitment’ and as utilising the opportunity of being released into the community. Importantly, for a sustained period of time now, you have also stopped using substances.
The risk of deportation
77You are not an Australian citizen and as such a prison sentence, if it exceeds 12 months, is likely to trigger mandatory cancellation provisions in the Migration Act. You have been concerned and anxious as to this prospect given your previous experience and trauma and instability in Afghanistan. Also, you have now lived in Australia permanently since you were around
11 years of age and all of your immediate family are here and you have ties to this community.78In Guden v The Queen, it was recognised that the prospect of deportation is a factor which may increase the impact which a sentence of imprisonment will have upon an offender[10].
[10]Guden v The Queen [2010] VSCA 196.
79Further, as stated in Akot v The Queen, deportation, should it occur, can constitute an additional punishment[11]. While a sentence should not be artificially tailored to avoid such consequences, a court can impose a sentence which avoids exposing an accused to deportation thereby negating their rehabilitation, if it is appropriate and possible to do so without adversely affecting any other sentencing purposes[12]. It is not submitted that in your case the sentence indicated will trigger any mandatory cancellation provisions. I do however take into account as relevant, the concern of deportation that you have experienced while the outcome of your matter has been unknown and uncertain.
[11]Akot v The Queen [2020] VSCA 55.
[12]Matamata v The Queen [2021] VSCA 253 [91].
80For completeness, Mr Anwari, I note that your co-accused have both had their matters finalised in the Magistrate's Court. Their cases resolved on a different factual basis to yours and in respect of this particular offending, they entered pleas of guilty to robbery charges and intentionally cause injury.
81Your brother was sentenced on a consolidation of over 50 charges occurring between September 2021 to March of 2023, and had a prior criminal history, though limited. On the robbery charge he was sentenced to 10 months' imprisonment. He was sentenced to a total effective term of 11 months' imprisonment and a community corrections order of 18 months.
82Mr Atwell was also dealt with for a consolidation of matters including a breach of a community corrections order. He was sentenced to eight months' imprisonment and received a total effective term of eight months' imprisonment.
83Both co-accused were therefore sentenced on less serious charges in relation to this incident and also in respect of other unrelated matters, which do not concern you. Also, there are differences as to your circumstances including the assessment of rehabilitative prospects. Overall there is a basis for disparity in sentencing, with different factors pulling in different directions. In any event I note that the court is prohibited from taking into account parity on this particular assessment.
84To conclude, in respect of all of these matters I consider that a combination of the factors relied upon and canvased are of the most mitigating kind and do constitute circumstances that are ‘substantial and compelling, so as to justify not imposing a custodial sentence’. I also consider that the cumulative effect of these circumstances in your case are significant and ‘exceptional and rare’.
General sentencing principles
85Having made this finding, I must consider relevant sentencing matters and principles in your case. The purpose of sentencing are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. General deterrence and denunciation are particularly important given the nature of the offending. Specific deterrence and community protection are relevant but may be accorded less weight in your case, for the reasons I have canvased.
86I take into account all the factors I have already referred to, including my assessment of the gravity of the offending, your personal history, your health issues as canvased in the report of Ms Cidoni, and your personal circumstances.
87I give full weight to your plea of guilty, though noting it was one entered at a late stage and what I assess to be your strong prospects of ongoing and future rehabilitation. Making appropriate allowance for the seriousness of the offending I consider in your case, particularly given your lack of previous criminal history, that your youth is a prominent and a significant consideration.
88I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant in your case. I have had regard also to the general sentencing landscape for the offences of armed robbery and intentionally cause injury, noting of course that while they have provided guidance, each case turns on an assessment of its own particular circumstances. I also take into account the principles of parsimony, proportionality and totality.
89Ms Cidoni makes a number of recommendations in her report. She suggests that structured mental health interventions will likely reduce risk. She recommends a trauma informed care approach and targeted therapeutic interventions.
90As already noted, you were recently assessed for a corrections order and you were assessed as suitable. A community corrections order is capable of constituting a significant punishment. It is also a particularly important sentencing option in the case of young offenders, as the Court of Appeal in the case of Boulton stated, 'It may reconcile the perceived conflict between the need to punish an offender and rehabilitate'. The Court stated:
Since the community corrections order can be used to rehabilitate and punish simultaneously, the conflict is likely to be reduced instead of needing to give less weight to denunciation or specific or general deterrence in order to promote the young offender's rehabilitation. The court will be able to fashion a community corrections order which adequately achieves all of those purposes at once[13].
[13]Boulton v The Queen [2014] VSCA 342.
91In all of the circumstances and after much consideration I consider that a significant community corrections order is capable of addressing the punitive and denunciatory purposes of sentencing, while also ensuring that your process of rehabilitation, in which the community has a vested interest, is able to continue. It will, Mr Anwari, operate for a substantial period of time and it will have attached punitive conditions that you must comply with for its duration. If you can stand please.
Sentence
92Synthesising all relevant matters, you are convicted and sentenced as follows.
93On both charges you are sentenced to a community corrections order of three years' duration. The conditions that attach to the order are as follows: supervision, treatment and rehabilitation for drugs, treatment and rehabilitation for alcohol, treatment and rehabilitation for mental health, treatment and rehabilitation for programs.
94I also require you to undertake and perform 300 hours of community work. I will offset 120 hours against treatment.
95Mr Anwari, as I have made plain, both at the sentence indication hearing and earlier today, this order has a number of punitive conditions. It lasts for a long period of time, that is every day for three years. It has attached requirements including substantial work hours. You are in full time employment; you need to prioritise this and manage it. Nobody wants you to be derailed or to lose your job, you need to work with Corrections and you need to organise your affairs. Do you understand? I have imposed these conditions appreciating your circumstances and your current commitment, all right.
96Now in terms of Corrections, as I understand it you have an appointment tomorrow. You have been directed to attend at Sunshine, 2:00PM on
27 November, which is tomorrow. The order simply reads that you are required within two days to attend, that is the requirement but an appointment has been made in your case. So what time is it?97OFFENDER: Two o'clock.
98HER HONOUR: Tomorrow. All right. Now s6AAA is, I must say, a complicated task in this matter because of the operation of the mandatory provisions, but I can indicate that but for your plea of guilty I would have sentenced you to a period of some three years' imprisonment with a non-parole period of one year and nine months' imprisonment.
99No ancillary orders are sought and I will not make any.
100COUNSEL: As the court pleases.
101HER HONOUR: You can take a seat. Now that order is ready. Can it be provided to counsel please. You can both look at it, ensure that it is consistent with the order that I have made in court and then Mr Mortley, you can approach Mr Anwari.
102MR MORTLEY: Thank you, Your Honour.
103HER HONOUR: Thank you. Counsel, there is a signed copy, that should be given to Mr Anwari before he leaves court, and it will be provided to counsel by email also. Is there anything further before we adjourn?
104MR TRIANDOS: No, Your Honour.
105HER HONOUR: Thank you. All right, thank you very much counsel.
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