Director of Public Prosecutions v Azad
[2020] VCC 2058
•18 December 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR-20-01604
CR-20-01418
Indictment No. C2013786
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW AZAD EMANWIL MADING |
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| JUDGE: | HER HONOUR JUDGE DALZIEL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 December 2020 |
| DATE OF SENTENCE: | 18 December 2020 |
| CASE MAY BE CITED AS: | DPP v Azad & Anor |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 2058 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Armed Robbery – Young offender – Plea of guilty
Cases Cited:R v McKee & Anor (2003) 138 A Crim R 88; Farmer v The Queen [2020] VSCA 140;
Sentence:Total effective sentence:
Youth Justice Centre Order for a period of 2 years and 6 months (Azad);
Youth Justice Centre Order for a period of 2 years and 6 months (Mading).
Section 6AAA declaration:
3 years and 3 months imprisonment (Azad);
3 years and 3 months imprisonment (Mading).
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Norris | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr L. Gwynn for Azad | Victoria Legal Aid Greg Thomas Barrister and Solicitor |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
220983250
HER HONOUR:
1Matthew Azad and Emanwil Mading, you have each pleaded guilty to a single charge of armed robbery.
2This charge covers an armed robbery carried out by you both on 12 August 2020, when you entered a chemist store in Carnegie and between you robbed the two workers in the store of money and prescription medication. You were both armed with bladed weapons, Mr Mading with a knife with a blade 33 cm long, and Mr Azad with a small bladed weapon.
3The offending was captured on CCTV cameras in and outside the chemist. At around 8.20 am you both walked past the shop. Each of you was wearing a hooded top, and a blue and white medical face mask. You both were wearing hoodies and Mr Azad was carrying a large shopping bag. A minute or so later you both walked back to the store and entered.
4Mr Azad entered first and started up the aisle leading from the door towards the prescription counter at the rear of the shop. Mr Azad gestured towards Mr Mading to join him, but Mr Mading had turned left into the service area next to the entrance. The first victim was behind that counter.
5Mr Mading pushed the first victim with his hand on her upper left arm and moved the knife he was holding towards her, poking it near her face and upper chest. Mr Azad joined them near that counter, but when Mr Mading gestured towards the back of the store Mr Azad left that area[1] and went back to the prescription counter. Mr Mading continued to crowd the first victim and gesture with the knife. He said 'Where’s the money? If you don’t give me the money I will hurt you.' At some point the first victim asked him to stop poking her with the knife, so she could get what he wanted from the register.
[1] CCTV Footage (Exhibit P2), Track 1, at 03m04s.
6The first victim opened the register and Mr Mading collected the cash. He asked where the other money was kept in the store. Mr Mading them moved with this victim up the aisle towards the back of the store, still holding the knife in his right hand.
7Mr Azad had, meanwhile, moved to the back of the store. As he walked up the aisle it can be seen in the footage that his mask is in place and he is wearing something on his hands.
8At the rear of the store was the dispensary counter where the second victim was working. Mr Azad said to her 'Give me the Benzos. I want your Benzos.' He was holding a small bladed weapon of some kind.
9Mr Azad said words to the effect of 'Give me the Benzos. I want the Temazepam.' While he was doing this, he threatened the second victim with the weapon. She said: 'Can you not stand so close.' He said 'I am not going to hurt you. Just give me the benzos, I know they are here.' She said: 'They are not here, they are in the safe' and asked him to move back. He did so and the second victim opened the drug safe. Mr Azad took various prescription medications, including benzodiazepine and pseudoephedrine, putting them in the shopping bag.
10You were both in the store for approximately one minute and 45 seconds. It is clear from the CCTV footage that you were working as a team.
11You both ran out of the store. Mr Mading dropped the knife. You ran away, dropping some of the stolen goods along the way and discarding the yellow hoodie worn by Mr Mading, and Mr Azad’s shoes.
12Mr Mading was arrested at around 8.35 am. He had $170 of the stolen money and some of the stolen medication with him. He had dropped $160 nearby. Mr Mading was interviewed by the police and denied committing the offence.
13Mr Azad was arrested at around 9.00 am, at a nearby motel. The body camera footage shows that he was behaving strangely. The police found the orange vest he wore during the offending, in his motel room. He was taken to hospital as he was acting erratically, and was complaining of a sore ankle. On discharge he was taken to the police station where police decided that it would not be appropriate to interview him.
Azad Personal Circumstances
14Your family is Iranian. Your mother left that country with you and your brother when you were still very young. After a period of time living in Malaysia she brought you to Australia when you were around five years old. You spent around nine months living in the Baxter Immigration Centre where you were exposed to people living in states of extreme distress. You were assaulted, and separated from your mother for a time.[2]
[2] See Psychological Report of Guy Coffey dated 1 December 2020 [17] (‘Coffey Report’).
15When you had moved to live in the community you were repeatedly abused by a man who should have been caring for you. This man also abused your mother. You were compelled by your mother’s partner to consume drugs when you were only 12 years old. You say he forced you to take diazepam and codeine, which I note you were seeking in this offending. Although you could not have done anything to protect them you felt guilty for not protecting your mother and brother.[3]
[3] See Letter of Apology and Coffey Report [20]-[23].
16When you were 15 you suffered a back injury for which you were prescribed opioid pain killers. You became addicted to these. In March 2020 your family was subjected to a home invasion in which you were stabbed.[4]
[4] Coffey Report [42].
17These repeated traumas impacted your schooling and your behaviour. You used drugs and self-harmed. When you were 18 or so your behaviour really started to deteriorate, with drug use and criminal behaviour.[5] In June 2020 your drug fuelled behaviour led to police being called to your home and then a family violence intervention order being made, protecting your mother and brother from you. You breached that order.
[5] Coffey Report [34]-[38].
18Despite the issues plaguing you, you completed Year 11 and then commenced certificates at TAFE in carpentry and electrical engineering. You have worked part-time in various jobs. You have the intelligence and capacity to work, when not affected by drugs.
19After the home invasion in which you were stabbed things went downhill for you. Your mental health deteriorated and you increased the amount of Xanax you were taking, as well as drinking cough syrup.[6] After you were released from prison in mid-2020 you could not live with your family and were placed in temporary accommodation at a motel in Carnegie, where you were living at the time of this offence. You relapsed into drug use. Your mental health was poor and you self-harmed.[7] When you were arrested after this offence your behaviour was reflective of your emotional instability and drug use, but it was not psychotic or disorganised.[8]
[6] Coffey Report [43].
[7] Coffey Report [46]-[50].
[8] Coffey Report [53].
Mental Health & Drug Abuse
20In view of the different and serious traumas that have afflicted your life you suffer from Complex Post-Traumatic Stress Disorder. Mr Coffey also diagnosed you as suffering from Opioid Use Disorder and Anxiolytic Use Disorder, that is abuse of drugs to deal with anxiety.
21Mr Coffey summarised your history and its effect as follows:[9]
'Mr Azad was a child refugee when he arrived in Australia at the age of five. He did not find in his country of asylum an environment which provided for his secure development. He experienced violence and neglect in an immigration detention centre and then prolonged violence in his home. It has been known for a long time clinically, and is now well established by epidemiological research, that the number of childhood adverse events, most potently in relation to incidents of interpersonal violence and abuse, is directly correlated to the probability of adult mental illness.'
[9] Coffey Report [111].
22Letters from Headspace and Jesuit Social Services indicate that you sought assistance over the period of 2016 to 2019 for your mental health and drug issues. You told Mr Coffey that whilst you were in Malmsbury you still craved codeine. While you were on youth parole you continued to use drugs, although in reduced quantities.[10] Regrettably you were not able to resist the lure of drugs when things went downhill for you before this offending. Your past attempts to address these issues are not determinative of how you will go in the future. It is encouraging that you understand that you need assistance in these areas.
[10] Coffey Report [39]-[40].
Plea of Guilty and Remorse
23You indicated that you would plead guilty at the earliest opportunity. Your counsel submitted that your plea was an indication of remorse and that by it, and your letter of apology, you wished to apologise to your victims. Furthermore, the plea of guilty has substantial utilitarian value and facilitates the administration of justice, and carries particular weight in mitigation in view of the impact of the COVID-19 pandemic upon the business of the courts.
24Your letter of apology expresses empathy with the victims, and an understanding of the causes of your offending. You express the desire to engage in drug rehabilitation. I note also your comments to Mr Coffey in this respect[11] and I accept you are remorseful for your conduct.
[11] Coffey Report [59].
Verdins
25Your counsel relied on your mental state as a mitigating factor in respect to the type of disposition to be imposed. It is also one of the factors relevant to consider in deciding whether you meet the requirements that would enable me to make a youth justice centre order in respect to your confinement.
26I accept that the effect of your mental state upon your experience of detention and the effect detention would have on your mental health are both factors in mitigation.
27Your offending here was committed whilst affected by drugs and was done in order to get more drugs. As discussed in the plea hearing I consider that the circumstances in which you became addicted to drugs falls outside what might otherwise be seen as a decision made freely to engage in using drugs. This makes your case one where the effect of drugs upon your capacity to think clearly, and your addiction as a motivation, do carry some degree of mitigation.[12]
[12]R v McKee & Anor (2003) 138 A Crim R 88, 92-93 [13].
Youth
28You have a substantial criminal record for a person of your age. It commences with a charge of theft in the Children’s Court in 2018, and progresses to the adult jurisdiction in 2019 for drug offences, breaches of bail and of family violence intervention order. You have prior convictions for possessing weapons, burglary and other dishonesty offences. You have previously been sentenced to detention in a YTC, and received a time served sentence of 20 days in adult custody in March 2020. On that day you were also sentenced to an 18 month CCO, which you were on at the time of this offending. You received a two month adult prison sentence in June 2020 for breaching a family violence intervention order.
Prospects of Rehabilitation
29The many traumas you suffered as a child and a teenager are also part of your personal make-up and they thus mitigate the sentence to be imposed, but at the same time the effect that your history has on you will make it more difficult for you to remain drug and offence free in future, and so is relevant to the protection of the community.[13]
[13]Bugmy v R (21013) 249 CLR 571, 594-595 [43], [44]
30Your rehabilitation is linked to your ability to refrain from using drugs and addressing your mental health concerns. You were honest in telling Mr Coffey that you feel a strong urge to abuse drugs and that you know that it is likely that you will succumb to drug use again without regular treatment and monitoring. Your insight in this area is important, but it is clear that you have a lot of hard work to do in order to address these issues. It is hopeful that you understand that this is the case and that you have expressed your determination to do so.
31You do have prospects for rehabilitation. In imposing the period of a confinement that I will do, it is my understanding that you will be able to commence this process. The sentence I will impose is intended to assist you in this respect.
Mading Personal Circumstances
32You are currently 20 years old, and will turn 21 in February 2021. I was provided with very few details regarding your personal circumstances.
33You were born in South Sudan. Your parents were exposed to the trauma of war there, and your left with your family when you were around two years old. Between that age and five you and your family lived in Egypt, in high-rise flats. You report that you have no memory of living in South Sudan, and nothing is reported by you about your experiences in Egypt.
34In 2005 you, your mother and two older siblings came to Australia. Your family lived in Dandenong until you were 14, and you have described this as a calm and stable home environment.[14]
[14] Psychological Report of Gina Cidoni dated 30 November 2020 [18] (‘Cidoni Report’).
35Your father lives in the United States, and you report that you and your family were not able to emigrate to America. You last saw your father in 2016.
36You completed Year 11 at school. You reported to Ms Cidoni that you were suspended at school several times for bad behaviour. You attributed your behaviour to being influenced by other students, and to being disinterested in school. Your brother told Ms Cidoni that there were issues with racism against you and your family.
37You had work for three months when you were 19 but you ceased as you did not like working from 9 until 5. It was difficult for you to find work in 2020 due to the COVID-19 issues, and this pending plea also caused issues with getting work. You now have a job working as a sorter and labourer, and are keen to retain this employment.
38You began drinking alcohol at age 17 and problematically you started using drugs from around the age of 18. You report using cough syrup, Xanax, Valium and MDMA, frequently. You reported being hospitalised three times between the age of 19 and 20 for overdoses of Xanax.[15]
[15] Cidoni Report [31], [33].
39You told Ms Cidoni that you stopped using drugs when you were released on bail.
40The explanation given for your offending on this occasion is that you argued with your mother and went to visit Mr Azad. You say that you had been awake for around 24 hours, abusing alcohol and drugs including at least four Xanax tablets, Cannabis and cough medicine. You and Mr Azad decided to steal cough medicine.
Mental Health
41In September 2020 you were referred to Foundation House for assistance with your mental health and drug and alcohol abuse. The report from Ms Bakopanos says:[16]
'The referral for Emanwil was accepted on the basis of his refugee background and experiences of displacement, trauma and loss at a very young age, intergenerational trauma, his psychological symptoms, and problematic use of alcohol and illicit drugs, resulting in risk to himself and to others, and involvement in offending with peers
The referral specified problematic behaviour and psychological symptoms including persistent lack of expression of positive emotions, aggressive behaviour, alcohol and substance use, and persistent and severe sleep difficulties. The referrer indicated that both his current AOD use and mental health difficulties are coexisting and contributing to his current situation.'
[16] Report of Christine Bakopanos, Counsellor Advocate at Foundation House dated 2 December 2020, p 1 (‘Bakopanos Report’).
42Ms Bakopanos referred to the impact underlying childhood trauma, as well as family and community trauma, can have upon the psychological functioning and mental health of people so affected. Whilst the underlying causes of your mental state have not been elaborated upon, this is perhaps due to the short period of time you have been working with Ms Bakopanos and the lack of face to face interactions with her.
43Ms Cidoni listed a series of concerning negative thought habits and behaviours, and emotional dysregulation.[17] She summarised this as 'Personality testing indicated depression that is interspersed with hypomania and problems with emotional regulation.'[18] She said 'Clinical syndromes were indicated in the areas Bipolar Affective Disorder, Major Depression, and Substance Use Disorder according to the DSM-5.'[19]
[17] Cidoni Report [37].
[18] Cidoni Report [44].
[19] Cidoni Report [45].
44Regarding the links of your substance abuse to your mental health, she said:[20]
'Alcohol abuse started at age 17 and drug use including MDMA and Xanax from age 18. He continues to drink alcohol and I suspect he drinks to alleviate the psychological discomfort he would be experiencing. His excessive drinking and drug use are linked to disinhibition and risk taking, also his pronounced immaturity.'
[20] Cidoni Report [47].
45Ms Cidoni considered that your mental state impacted upon your decision to use drugs, which in turn effected your judgment and ability to make calm and rational choices before the offending.[21] She raised concerns about your ability to cope in adult custody due to your immaturity and impressionable character, together with your poor mental health.
[21] Cidoni Report [49]-[51].
Verdins
46Ms Cidoni linked your drug and alcohol abuse to your immaturity and inability to deal appropriately with your emotional and mental state. Even accepting that is the case, I do not think that the effect the drugs had upon your judgment and clear thinking at the time of this offending is mitigating. You commenced abusing drugs at age 18. The link drawn by Ms Cidoni between your substance abuse and mental health is not of the same degree and quality as the causes of Mr Azad’s drug abuse.
47I do accept that your mental state, together with your youth, are relevant to the type of disposition, and your experience of custody. Whilst I accept that custody may have a negative effect on your mental health, I do not think that there is a serious risk that it will have a significantly adverse effect upon you.
Progress on Bail
48You had been on bail prior to this offending, and were sentenced on those charges on 20 January 2020. On the period of bail for those earlier offences you did not raise any issues about mental health or drug abuse, and so these underlying issues did not receive any attention.
49You have been on bail for this offence since 2 Sept 2020. During that three months you have done well, despite the less than ideal situation of phone contact rather than face to face. The reports from Foundation House, and YSAS, as well as the evidence from Ms Wolff are all evidence that you do have reasonable prospects for rehabilitation.
50Your plea of guilty, which was entered at the first possible occasion, and which had been foreshadowed from the filing hearing, has substantial utilitarian benefit and facilitates the administration of justice, particularly so in the circumstances of the impact of the COVID-19 pandemic upon the operation of the Court. Your plea is a demonstration of your remorse for your offending. I note that you have expressed shame for your behaviour, and an understanding that it impacts others such as your mother and family.[22]
[22] Bakopanos Report, p 4.
Prospects of Rehabilitation
51The support of your family is an important factor in assisting your prospects for rehabilitation, as is your progress whilst on bail. It is encouraging that you have engaged well with Ms Bakopanos and YSAS whilst on bail.[23] Your rehabilitation whilst important is not, however, the only factor in sentencing. Furthermore, whilst I accept that in sentencing a young offender such as your rehabilitation is a powerful factor, for the reasons I will come to shortly I am not satisfied that your circumstances meet the criteria of any of the exceptions to s.5(2H) of the Sentencing Act, and thus I am constrained in what sort of sentence can be imposed.
[23] See Bakopanos Report, Report of Lynette Ulukaya of Youth Support and Advocacy Service dated 9 December 2020, and Supervised Bail Progress Reports and evidence of Ms Heidi Wolff.
52Your criminal history is limited, but it is clearly relevant. It is of concern that in those offences, like this one, your offending was in the company of others.
Other Factors
53Your period on remand for these offences was stressful and you are anxious about being sent back into custody. Whilst the time leading up to the plea has been stressful for you, this matter has been listed quite quickly and it is now just over four months since the offence occurred.
Sentencing Act Section 5(2H)(e)
54The factors relied upon by your counsel do not establish that there are substantial and compelling reasons which are rare and exceptional that justify not making an order for incarceration, which is not combined with a community correction order. This is a stringent test.[24] Clearly there are mitigating factors but they do not rise to the level of substantial and compelling reasons which are rare and exceptional. Whilst in some cases a term of imprisonment or detention in a Youth Justice Centre would be unjustified, this is not such a case. Furthermore, I would have been required to have regard to the matters set out in s.5(2HC) and (2HI), which would further militate against being satisfied as required under s.5(2H)(e).
[24]Farmer v The Queen [2020] VSCA 140 [51].
Sentences
55This was a planned armed robbery. Mr Azad was carrying the shopping bag when you walked past the chemist minutes before the offending. You were both carrying weapons and although Mr Mading’s knife was larger and more frightening. Whilst masks were mandatory at the time, because of the pandemic, you had both taken steps to disguise yourself beyond mask wearing. The hoods of your jumpers were up and Mr Azad had covered his hands.
56The charge covers the actions of both of you, as you were each complicit in the other’s actions. Two workers were subjected to your demands and threatened with blades. Customers in the store were also affected by your actions.
57Whilst I accept that both of you were drug affected and offended to get more drugs, in Mr Mading’s case this is not mitigatory, although it is to a degree in respect to Mr Azad, for the reasons I have already given.
58The offending calls for denunciation, and the sentences I impose are intended to deter both you and others from engaging in this type of behaviour. Furthermore, just punishment is a relevant factor.
59Whilst your rehabilitation will be the best way to protect the community from you, and in view of your youth promoting your rehabilitation is a powerful purpose in sentencing, in all the circumstances of the case I have concluded that each of you must be sentenced to custody. I note that Mr Azad’s counsel did not argue against this. In respect to Mr Mading it was submitted that a CCO could meet all the various sentencing purposes. Taking into account the gravity and nature of the offence and Mr Mading’s personal circumstances I have concluded that such a sentence would be clearly inadequate, even if I had been satisfied that that there were substantial and compelling reasons which were exceptional and rare that justify not making an order for incarceration which is not combined with a community correction order.
Youth Justice Centres Order
60In order to make a youth justice centre order rather than imposing a period of imprisonment in adult gaol, I must be satisfied either that you have reasonable prospects of rehabilitation, or that you are particularly impressionable, immature or likely to be subjected to undesirable influences in adult prison. I have received a pre-sentence report in respect to both of you.
61Mr Azad, in your case I am not sure that your prospects of rehabilitation are reasonable, but I do believe that you would be likely to be subjected to undesirable influences in adult prison. In coming to this position I have taken into account the pre-sentence report prepared by Mr Riordan, and the other material presented on the plea.
62Mr Mading, in respect to you, both Ms Cidoni and Ms Bakopanos raised concerns about you going into adult prison, in view of your impressionability and immaturity.[25] I consider that you have reasonable prospects for rehabilitation, and that you are particularly impressionable, immature or likely to be subjected to undesirable influences in adult prison.
Parity
[25] Cidoni Report [52]; Bakopanos Report, p 5.
63The offending to which you both pleaded guilty is very similar. Having watched the footage several times I have concluded that you were working as a team with neither of you more in charge than the other. Mr Mading was carrying a fearsome weapon. He repeatedly pushed and crowded the first victim, and moved the knife towards her.
64Mr Mading’s criminal history is relevant but less serious than Mr Azad’s, and his prospects for rehabilitation are somewhat more favourable than Mr Azad’s. Mr Azad’s sentence is mitigated by reason of his personal history which includes significant trauma . He was on a CCO at the time, however, which is an aggravating factor.
65Balancing all these matters I have concluded that you should each receive the same sentence.
66Mr Mading, could you please stand up? You can keep your mask on. Mr Mading, you are sentenced to two years and six months in a youth justice centre. You can sit down, thank you.
67Mr Azad, you are sentenced to two years and six months youth justice centre order.
68In respect to Mr Mading I declare pursuant to s.35(4) of the Sentencing Act that you have served 22 days as presentence detention and I direct that this declaration be entered into the records of the Court.
69In respect to Mr Azad I declare pursuant to s.35(4) of the Sentencing Act that you have served 128 days as presentence detention and I direct that this declaration be entered into the records of the Court.
70Each of those presentence detentions declarations does not include today.
71Pursuant to s.6AAA of the Sentencing Act, I declare that if each offender had not pleaded guilty I would have imposed a sentence of three years and three months gaol on each of them.
72I will make the disposal and forfeiture orders sought by the prosecution. Now are those presentence detention figures correct? Ms Sutherland?
73MS SUTHERLAND: Yes Your Honour.
74HER HONOUR: Mr Gwynn?
75MR GWYNN: Yes Your Honour.
76HER HONOUR: Is there anything else? All right, we'll adjourn the court and if Mr Mading can be taken out after I've left, so he can have an opportunity to speak to Ms Wolff and Ms Sutherland.
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