Director of Public Prosecutions v Assaad

[2019] VCC 2232

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01316

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMMAD ASSAAD

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2019
DATE OF SENTENCE:	19 December 2019
CASE MAY BE CITED AS:	DPP v Assaad
MEDIUM NEUTRAL CITATION:	[2019] VCC 2232

REASONS FOR SENTENCE
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Subject: Theft, robbery and attempted armed robbery
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Teo	OPP
For the Accused	Ms P. Smith	Emma Turnbull Lawyers

HER HONOUR: 

1Mohammad Assaad, you have pleaded guilty to theft, robbery and attempted armed robbery.  The maximum penalty for theft is 10 years, for robbery is 15 years and attempted armed robbery 20 years.

2The circumstances of your offending are contained in the prosecution opening dated 26 September 2019 (Exhibit A).  On 12 March 2019 at about 6.30 pm, you went to a Mini Mart in Pascoe Vale.  You asked the attendant if you could withdraw $70 cash using your card.  She turned the ATM machine towards you whilst holding $70 and waiting for you to use your card.  You then snatched the cash from her and ran out of the store then drove away.  That is Charge 1, theft.

3On 18 March 2019 you went to the meat section at Nepal Bazaar in Glenroy.  You approached the attendant and said, 'If you don't give me the money, I will kill you'.  She opened the register and you took all the money out, saying. 'Don't tell anyone', before leaving the store.  (Charge 2, robbery).

4On 1 April 2019 at approximately 8 pm you went to a seafood shop in Glenroy.  You asked the attendant if the owner was at the shop.  She was at the cooker and she turned and saw you standing near the cash register holding a knife with a brown handle that was approximately 15 centimetres long.  You pointed it at her and she screamed.  Another worker then saw you with her and the knife.  The attendant backed away from you and continued screaming and you ran out of the shop.  (Charge 3, attempted armed robbery).

5CCTV footage was available in respect of your offending.  You were arrested on 3 April 2019 and deemed unfit for interview.  A search of your home and car was conducted and various items of clothing and a knife were discovered linking you with this offending.

6Each of the victims were approached to make a victim impact statement but did not do so.  It goes without saying that particularly the victim in the seafood shop would have been frightened by your actions. 

7I received a report from Gina Cidoni, consultant psychologist, dated 11 December 2018, which was prepared in respect of some other unrelated matters.  Additionally I was provided a letter from Maria Karefilakis, psychologist, who you saw in September 2018.  At the time the matter was first before me, your counsel requested that I order a Forensicare report.  That was completed and made available to the parties on or about 16 December 2019. 

8You were born in Lebanon and migrated to Australia via Indonesia in 2013.  You are currently 28 years.  Your parents remained in Lebanon and you are one of four children.  You attended school to the Year 7 equivalent in Lebanon.  You then engaged in hospitality work and then occasional labouring.  You left Lebanon as you suffered from discrimination due to your religion and fear of being conscripted.

9Your trip to Australia by water was traumatic and treacherous with you travelling to this country in a dilapidated boat.  As a consequence you suffer an intense phobia of water and suffer nightmares and flashbacks.  You spent 20 days on Christmas Island in detention, then ultimately came to Melbourne and met up with one of your brothers, who resides in this country.  You obtained some work with your brother though not on a consistent basis and at the time of your arrest you were in receipt of government payments.

10You married an Australian citizen in 2016 and lived in Hoppers Crossing, though divorced during 2018.  I was informed that since the breakdown of your marriage your life has been transient and chaotic with use of drugs and lack of accommodation.  You have been involved in a couple of other traumatic incidents, namely a car accident in 2014, and you were robbed and beaten during 2016 where you sustained multiple bruises and was hospitalised.

11You were diagnosed with depression in 2014.  In 2016, you sought counselling and were prescribed antidepressants.  When assessed by Ms Cidoni, psychological testing revealed a profile indicative of severe distress and disturbance.  She noted a salient feature in your day-to-day functioning was a marked lack of insight concerning underlying causes of your symptoms.   She noted your anxiety was reflected by agitation, ruminative behaviour, brooding, sleep disturbance, tension and exaggerated startle response. 

12She opined that you presented as a psychologically disturbed man, with evidence of post-traumatic stress disorder with depressed mood, according to the DSM-5; that you had a history of trauma from Lebanon and your passage to Australia, the car accident and as being a victim of an assault; you have post-traumatic symptoms and phobic avoidance.  She viewed that your poor mental health contributed to the accumulation and failure to deal with the fines imposed in the period between 2014 and 2016 and that she suspected you were psychologically unwell in this time.

13A more recent report was prepared by Dr Fiona Toal, consultant forensic psychiatrist from Victorian Institute of Forensic Mental Health dated 16 December 2019.  It was noted in that report that collateral information from  Forensicare staff in custody observed you to have 'some  adjustment issues initially' and that you remained on medication that was prescribed to you in the community prior to prison.  Further it was noted that you see psychiatric nurse at Hopkins regularly

14Dr Toal indicated ongoing reports of low-grade depressive and anxiety symptoms such as poor sleep, low energy and low motivation.  She opined that this seemed largely related to the stresses of upcoming court.  

Opinion and recommendations

15Dr Toal opined that you had a historical diagnosis of post-traumatic stress disorder with varying symptoms of depressed mood and anxiety.  You currently present with some variable mood symptoms and ongoing despondent themes related to his ex-partner.  

16Your history indicated your mood varies on a daily basis, which is more consistent with the mood variance than would be seen with a diagnosis such as PTSD disorder rather than symptoms of acute depression.  Similarly she viewed your description of voices as more likely to be accounted for by your longstanding anxiety symptoms exacerbated in the confines of prison.  You have been diagnosed with adjustment disorder within the prison and are currently under review and supported by psychiatric nursing staff.

17Dr Toal viewed that a significant complicating factor to these charges was your abuse of cannabis and methamphetamine, both of which adversely affected your mood, anxiety and behaviour in the lead-up to the offences.  She opined the information available to her suggested your current difficulties regulating your emotions should be viewed in the context of the significant adversity you have experienced in both Lebanon and travelling to Australia and that that likely contributed to your substance abuse.

18In addition to your mental health issues you suffer from an eye condition called keratoconus in both eyes.  This condition requires regular eye tests with continually changing contact lens-fitting issues.  You have received regular treatment for this condition since October 2013. 

Plea of guilty

19You have pleaded guilty to these matters at the first opportunity.  I accept your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  None of those involved in your offending have been required to give evidence and relive the traumatic incident.  I accept that your plea is also indicative of remorse.

Prior criminal record

20You were previously convicted of two charges of unlawful assault on 5 February 2019 at the Sunshine Magistrates' Court and placed on a CCO.  You were on that CCO when these offences were committed.  I was informed that you were compliant with that order, though after you were the victim of an assault your level of compliance declined.  I was informed that you also have other outstanding matters alleged to have occurred early last year, which I understand are yet to be determined by the court, with dates in January of next year.

Immigration status

21I take into account your immigration status.  I was informed that you were on a bridging visa and that on 20 September 2019 you were informed of a notice to cancel your visa.  You are now an unlawful citizen.  I accept the prospect of deportation is capable of bearing on the sentence I impose in the following ways:

·the uncertainty and expectation of deportation increases the burden of imprisonment on you as compared to others without that issue; and

·the prospect of your deportation is a significant and further punishing consequence of your offending, given you had been in this country and settled for six years, and you will be vulnerable on your return if deported.

Aggravating features

22Your offending was against soft targets.  People are entitled to feel safe in their workplace and going out their business.  It occurred on three separate occasions and you were on a CCO at the time.  I accept that there was little planning, no use of disguise and that your offending lacked sophistication.

Sentencing submissions

23Your counsel conceded the only option available to me was a sentence of imprisonment.  General deterrence, specific deterrence, just punishment and denunciation are all relevant sentencing considerations.  These must be balanced with matters put on your behalf, including your mental health, immigration status and plea of guilty. 

24If you could please stand, Mr Assaad.

25In respect of Charge 1, theft, you are convicted and sentenced to a term of imprisonment of 14 days.  In respect of Charge 2, robbery, you are convicted and sentenced to a term of imprisonment of six months.  In respect of Charge 3, attempted armed robbery, you are convicted and sentenced to a term of imprisonment of two years and nine months.  Three months of the sentence imposed on Charge 2 will be cumulative on the sentence imposed on Charge 3, giving a total effective sentence of three years with a non-parole period of 18 months.

26I declare pre-sentence detention of 260 days. Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to these matters I would have imposed a sentence of four years and three months with a non-parole period of two years and three months. 

27Are there any other orders I need to make?

28MR TEO:  Your Honour, on the previous occasion Your Honour made forfeiture and disposal orders but not the forensic sample order to today, so there's still a forensic ‑ ‑ ‑

29HER HONOUR:  Hasn't that now changed and they're retained?  It's all right, I'm happy to sign it, but I didn't think it was necessary anymore. 

30MR TEO:  My instructor has copies, Your Honour, I'm told.

31HER HONOUR:  Thank you.  You can sit down, Mr Assaad.  Ms Smith, could you just go through with the interpreter this order, what that means.

32MS SMITH:  Yes, Your Honour, I'll do that.

33HER HONOUR:  Thank you.  Thank you.

34MS SMITH:  As Your Honour pleases.

35MR TEO:  Thank you.

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