Director of Public Prosecutions v Asaad

[2019] VCC 426

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02221

DIRECTOR OF PUBLIC PROSECUTIONS

v

KHALED ASAAD

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2019
DATE OF SENTENCE:	2 April 2019
CASE MAY BE CITED AS:	DPP v Asaad
MEDIUM NEUTRAL CITATION:	[2019] VCC 426

REASONS FOR SENTENCE
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Subject: Attempted armed robbery; Using a firearm with reckless disregard for the safety of
             persons
Sentence: 4 years' imprisonment; 2 years 9 months non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Rins
For the Accused	Mr J. Selimi

HIS HONOUR: 

1Khaled Asaad, you have pleaded guilty to a number of offences which occurred on two separate days in 2018.  Indictment J12665684 deals with offending that occurred on the 18^th January 2018.  Arising from that indictment you have pleaded guilty to one charge of criminal damage for which the maximum penalty is imprisonment for 10 years.  You also pleaded guilty to a charge of intentionally causing injury for which the maximum penalty is also imprisonment for 10 years.

2Indictment J12161290 deals with offending by you on 20 May 2018.  Arising from that indictment you have pleaded guilty to one charge of attempted armed robbery for which the maximum penalty is imprisonment for 20 years.  You also pleaded guilty to using a firearm with reckless disregard for the safety of any person for which the maximum penalty is imprisonment for 10 years.  You also pleaded guilty to one charge of being a prohibited person in possession of a firearm for which the maximum penalty is imprisonment for 10 years or 1200 penalty units.  You also pleaded guilty to one charge of possession of a drug of dependence, namely anabolic and androgenic steroidal agents, for which the maximum penalty in the circumstances of this case is 30 penalty units or imprisonment for 12 months or both.

3In addition, you pleaded guilty to two related summary offences that also occurred on 20 May 2018 and you agreed to me dealing with those matters in this court.  Those charges were possession of two boxes of .22 calibre ammunition for which the maximum penalty is 40 penalty units and driving a motor vehicle displaying registration plates not issued to that motor vehicle for which the maximum penalty is 10 penalty units.

4You have pleaded guilty to the charges and I treat you as having done so at an early time.  That is to your credit.  By pleading guilty to all of the charges you are entitled to a reduction in sentence and this will be reflected in the overall total effective sentence that I will shortly pass.  By pleading guilty you have now admitted responsibility for your offending and you have advanced the administration of justice.  You have saved the time and costs of two trials and, importantly, you have saved the victims of your attempted armed robbery and the victim whom you injured, from having to be called to give evidence against you.

5Your offending on 18 January 2018 is described in a prosecution summary which was tendered in evidence and read to the court by the prosecutor, Ms Ring.  Your counsel, Mr Selimi agreed that the prosecution summary was accurate and forms a proper basis from which I can proceed to sentence you for that offending.  In those circumstances it is not necessary that I here set out again that which is contained in the summary, except in an abbreviated way.

6You were the driver of a vehicle on the Melton Highway Taylors' Lakes when you became involved in an altercation with the victim who was driving in the same direction as you.  You had a passenger with you.  He threw a paper cup containing some ice and some drink at the victim's car.  When the victim threw the cup back at you, you stopped your car and you and your passenger got out.  You went to the driver's side window of the victim's car and punched him in the nose.  You then kicked the side door and mirror of his car damaging both.  Then you again went to the driver's side window and struck the victim in the face three more times whilst asking him “What's wrong”.  The victim suffered from a swollen lip, swollen nose, a chipped tooth, a sore finger and nose and he required medical attention.

7You were later identified from photographs of you taken by the victim.  You were interviewed and arrested and remanded on 16 August 2018.  You made a
“no comment” record of interview as is your right.

8Occurring as it did in a road-rage situation your offending is a serious example of this kind of offending which unfortunately is all too prevalent.  You were unprovoked and had time to think.  Sentencing for this kind of offending must properly reflect general deterrence, just punishment and denunciation.

9Your offending on 20 May 2018 is far more serious.  Your offending on this day is again described in a separate prosecution summary which was also tendered in evidence and read to the court by the prosecutor, Ms Ring.  Your counsel, Mr Selimi also agreed that the further prosecution summary was accurate and forms a proper basis from which I can proceed to sentence you for that offending. In those circumstances it is again not necessary that I here set out that which is contained in the summary, except in an abbreviated way.

10You drove a vehicle belonging to a company owned by one of your brothers.  You had a co-offender as a passenger and at about 4.30pm you went to a convenience store in Ardeer which was operated by an Asian gentleman who was alone and unarmed.  You entered the store armed with a loaded semi-automatic handgun.  Both you and your accomplice were wearing face masks, dark clothing, gloves and sunglasses.  You were both disguised such that the victim was unable to identify either your skin or hair colour.

11Brandishing your gun you demanded cash from the cash register and you repeatedly demanded that the victim open the cash register.  You then moved around the counter and stood to the victim's right.  You fired a shot from the gun which impacted the ground.  You then tried to open the register by striking it with your gun at which point the gun discharged a second time.  The victim ran from the store to call police.  You and your accomplice fled empty handed.  You were arrested on 16 August 2018 after some good detective work linked you to the vehicle used in the armed robbery.  You have been on remand ever since, two bail applications having been rejected.  You have served 228 days
pre-sentence detention.

12At the time you committed the attempted armed robbery you were drug affected.  I was told and accept that you had a methamphetamine habit consuming 1 gram per day of that drug known as Ice.

13This is clearly high-level offending of this kind.  It was planned, you were armed with a gun which was twice fired.  You were disguised to prevent detection.  You were foiled only because the cash register would not open.  You clearly subjected the victim to acts of violence.  It must have been a terrifying experience for him.  Your moral culpability for the offending in the attempted armed robbery is high.  I reject any argument that I should regard your moral culpability as having been reduced because of an unknown psychotic illness.  The fact remains you were drug affected.  That explains your offending but it does not excuse it.

14Mr Selemi filed a brief outline of submissions in writing which I marked as Exhibit 1 on the plea.  Appropriately he relied upon the fact that this offending aside you have no prior convictions.  At the time of offending you were subject to intervention orders obtained by your first wife in relation to her and the children of your first marriage.  Those intervention orders meant that you were a prohibited person from holding a firearm.

15Mr Selimi also relied upon the fact you have pleaded guilty to the charges at an early time including having the charges of intentionally causing injury and criminal damage heard in this court, where there are higher maximum penalties, instead of the Magistrates' Court.  In arriving at my sentence I have taken all of this into account.

16You are approaching your 33^rd birthday having been born in Lebanon on 7May 1986.  You are one of 7 children.  Your father died when you were aged 4.  You fled Lebanon and came to Australia in 2008.  You soon after married your first wife with whom you have two children aged 3 and 7 respectively.  You separated in 2015 and then remarried in 2016.  You finished year 8 at school and commenced an apprenticeship as a motor mechanic and you have been in Australia working as a motor mechanic ever since.  At the time of the offending you were employed at a business run by one of your brothers as a motor mechanic.

17Your wife and some members of your family still reside in Lebanon. You have two brothers in Australia both of whom gave evidence on your behalf as did your wife a school teacher.

18You started using cannabis in 2012 and you developed a dependency using that drug over a period of 5 years.  Around the end of 2016 and up until the time of the offending you were using methyl amphetamine and had developed a habit using 1 gram per day.

19I received into evidence a psychological report from Ian Mackinnon dated 21 January 2019.  He saw you for that purpose at Port Phillip prison where you have been working as a billet.  Mr Mackinnon thought you to be suffering from a psychotic disorder type unspecified managed by antipsychotic medication and depressed mood disorder.  He thought you have functional intelligence within normal range and that since being incarcerated you have overcome your substance abuse disorder.  I received into evidence certificates of urine analysis showing negative testing.  That is to be expected in a prison setting.

20Mr Mackinnon opined that your offending was precipitated by the emergence of mild to moderate psychotic disorder type unknown and illicit substance abuse.  You expressed regret at your offending to Mr Mackinnon and that comes through from all of the evidence that I have received, including a letter from you which you penned to me, telling me of your regret and apologising to your victim in the attempted armed robbery (Exhibit 3).  I accept you are remorseful.  I note that Mr Mackinnon makes no mention in his report related to your road rage incident and the offences you committed at that time.  He expressed the opinion that your chances for rehabilitation are good without taking into account the other charges. 

21I received into evidence a letter from Mid-West Area Mental Health Service dated 10 August 2017.  You were hospitalised on an involuntary basis in June and July of 2017.  Dr Eva Amerasinghe diagnosed you at that time as suffering from Amphetamine Induced Psychotic Disorder which she thought to be complicated by a dual diagnosis of methamphetamine abuse and continued psycho social stressors including financial debt and custody and fatherhood matters.

22I have concluded that although you may have some on-going mental health issues they are not significant and that your offending occurred in a background where you were drug affected by Ice.

23You seem to have adapted well to your first time in custody.  As I said you work as a billet and you have undertaken and completed various courses; certificates reflecting this were tendered in evidence.  I heard evidence from your brother Mahommed.  He said that you are a good person and a good family man.  He said that things changed for you when you and your first wife separated and you have had issues seeing your children from your first marriage.  You turned to drugs.  He said he has visited you in jail and he has noticed a change in you for the better now that you are drug free.  He said he and your other brother would look after you upon release from prison.

24I also heard evidence from your other brother Abdullah.  His evidence was similar.  He knew you were addicted to Ice.  He also said you appear to now be a better person because you are no longer drug affected.

25Your wife gave evidence describing you as ambitious, loyal, helpful and generous, a caring and loving man.  She said she first became aware of your drug use after your release from psychiatric care in July 2017.

26I have concluded that you have good family support and this will be helpful to you when you are released from prison although I note that even though members of your family knew of your Ice addiction well before this offending, their support at that time did not assist you to break your addiction.  Further, there seems to me to be somewhat of a conflict in the evidence relating to you.  Whilst the witnesses speak glowingly of you as a person, that sits uncomfortably with the fact that not only were you a drug addict but you also managed to possess and arm yourself with a semi-automatic firearm which you used as a weapon.  Just how and why you came into possession of such a weapon was never explained to me and there was no evidence about this.  The fact you had it and used it, sits in contrast to the picture of good character painted by those genuine family members who gave evidence about you.

27Mr Selimi urged me to sentence you on the basis of time served and then to impose a Community Corrections Order.  Ms Rins submitted that a combination sentence limiting the prison term to 12 months was not appropriate having regard to the level of offending that you have engaged in.  I accept that submission.  On the plea I indicated that I regard the level of your offending as being most serious and that in my view a sentence of imprisonment in combination with a Community Corrections Order would not meet the purposes of sentencing in a case like this. 

28Here the purposes of sentencing must properly address general deterrence, denunciation and just punishment as well as your rehabilitation.  In the circumstances of your offending, general deterrence should not be moderated.  You offended because you were affected by the drug Ice.

29It was submitted that your prospects for rehabilitation are good based on your acceptance of your wrong doing, your remorse and the fact you are now drug free and you have family support after you are released.  Whilst I accept all of that, the fact remains you were a drug addict with a methylamphetamine habit of 1 gram per day.  That is a very bad drug addiction and experience shows me that one must be cautious trying to predict the future without proper treatment.  In my view your prospects for rehabilitation must remain guarded.  Whether you remain drug free outside of a prison setting remains to be seen.

30Dealing with the charges first in indictment J12665684.

31On the charge of criminal damage, you are convicted and sentenced to a term of imprisonment of one month.

32On the charge of intentionally causing injury, you are convicted and sentenced to a term of imprisonment of 6 months.

33Dealing with the charges in indictment J12161290.

34On the charge of attempted armed robbery, you are convicted and sentenced to a term of imprisonment of three years and nine months.

35On the charge of use of a firearm with reckless disregard for the safety of any person, you are convicted and sentenced to a term of imprisonment of 6 months.

36On the charge of prohibited person possess a firearm, you are convicted and sentenced to a term of imprisonment of 6 months.

37On the charge of possession of a drug of dependence, you are convicted and discharged.

38On the summary charge of possession of two boxes of .22 calibre ammunition, you are convicted and fined $500.

39On the summary charge of driving a motor vehicle displaying registration plates not issued to that motor vehicle, you are convicted and fined $200.

40I direct that three months of the sentence imposed on Charge 2 in indictment J12665684 (intentionally causing injury) cumulate upon the sentence imposed on Charge 1 in indictment J12161290 (attempted armed robbery), making a total effective sentence of four (4) years imprisonment.

41I direct that you serve a minimum period of two years and eight months before being eligible for release on parole.

42I declare there has been 228 days pre-sentence detention and that 228 days be reckoned as having been already served under the sentences passed this day, be entered into the records of the court and be deducted administratively.

43For the purposes of s.6AAA of the Sentencing Act I state that had it not been for your early guilty pleas to the charges, I would have imposed a total effective sentence of six (6) years imprisonment and I would have fixed a non-parole period of four (4) years.

44Now Ms McGregor, I understand that there is a dispute about my calculation of the pre-sentence detention?

45MS McGREGOR:  Yes, Your Honour.

46HIS HONOUR:  Have you and Mr Radebe agreed on 229 days?

47MS McGREGOR:  We have it as 229 days from 16 August to 2 April, not including today, Your Honour.  So there is an ‑ ‑ ‑

48HIS HONOUR:  Two hundred and twenty-nine?

49MS McGREGOR:  Two hundred and twenty-nine, Your Honour.

50HIS HONOUR:  Well, I will amend my sentence to direct that 229 days be reckoned as the pre-sentence detention.  Now there is a disposal order, is there not?

51MS McGREGOR:  Yes, Your Honour.

52HIS HONOUR:  Relating to the drugs?

53MS McGREGOR:  Yes.

54HIS HONOUR:  That is not opposed, is it, Mr Radebe?

55MR RADEBE:  No, Your Honour.

56HIS HONOUR:  In those circumstances, I will sign the disposal order for the drugs.  Thank you.  Would you remove Mr Asaad, please?

57(At this stage the accused left the court.)

58MR RADEBE:  May I be excused, Your Honour?

59HIS HONOUR:  Yes, certainly.  I will just be adjourning the court in a moment.

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