Director of Public Prosecutions v Azimi

[2020] VCC 875

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00594

DIRECTOR OF PUBLIC PROSECUTIONS

v

SARAH AZIMI

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2020
DATE OF SENTENCE:	17 June 2020
CASE MAY BE CITED AS:	DPP v Azimi
MEDIUM NEUTRAL CITATION:	[2020] VCC 875

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nankin	Office of Public Prosecutions
For the Accused	Mr R. De Krester	Stary Norton Halphen

HER HONOUR: 

1Sarah Azimi, you have pleaded guilty before me to one charge of armed robbery and one summary charge of harassing a witness.  The facts underlying your offending are as follows.  May I begin by saying the extremely detailed prosecution opening is attached as an exhibit to my sentencing remarks and I will cover the facts underlying your offending in very brief terms. 

2Essentially, the situation was that at 9.30 pm on 19 November 2019, the two victims Mohammed Rezai and Danny Tang were sitting in a parked car in Doveton at which time your brother, Omar Kakar, came from behind in a black Volkswagen Jetta.  He got out of the car and got into the back seat of Mr Rezai and Mr Tang's car, carrying a sawn-off longarm.  He demanded that the two of them give him their, 'phone and everything you have'.  During this incident, Mr Kakar discharged the firearm towards the windscreen.  The two young men in the car gave him $35 and a mobile phone. 

3Mr Kakar then told the complainants to get out of the car, then drove the car away yelling out as he did, 'I have your license, I know where you live, don't call the police or I'll come back and finish you off'.  The black Volkswagen Jetta in which Mr Kakar had arrived at the scene was then driven away behind him as he drove from the scene in the victim's car.  That stolen car was found out the front of 28 Blossom Drive in Doveton and seized by police.

4Mr Kakar and his girlfriend, Ms Wang resided at 36A Blossom Drive in Doveton.  On 20 November 2019, police executed a search warrant at those premises.  Amongst other items, a CCT hard drive from a security camera in the area was seized.  On examining the footage, police discovered that about 10 minutes before the offending Mr Kakar, you Ms Azimi and other co-offenders walked out the front of the house and up to the black Volkswagen Jetta from which Omar Kakar retrieved a sawn-off longarm from the boot.

5At that stage Mr Kakar got into the driver's seat of the car and everyone else present got into the car, you being seated in the front passenger seat.  That car was driven off at 9.23 pm the crime occurring at 9.30 pm, and the black Volkswagen Jetta returning to 36A Blossom Street with your sister, Naso Kakar driving and you still in the passenger seat. 

6On 4 December 2019, a search warrant was executed at Naso Kakar's address in Cranbourne North where her mobile phone was seized on which police found a text message exchange with you showing your knowledge of the armed robbery of the car.  You were arrested on 5 December 2019.  Originally you were not cooperative with police but in a police cell following your arrest you admitted to an undercover police operative that you were present during the incident.

7During a second record of interview, police showed you footage from the CCTV camera and you provided some background to the incident saying that Mohammed Rezai who was the brother of one of the two young men in the car owed you $10,000 and that with the co-accused you had planned to meet him under the guise of buying drugs so that you could rob him in view of the moneys owned.  You told police that you believed an imitation firearm was to be used to scare Mr Rezai but you noted that it was his brother who attended instead together with another person.  Your offer to plead to the charge of armed robbery was ultimately accepted instead of the original charge of aggravated carjacking on the basis of the following agreed facts – the first that the property of the armed robbery included cash, drugs, a telephone and an acceptance that you were aware of the possibility of the theft of the car.

8Secondly, that you did not expressly agree the theft of the car and thirdly that you believed that the offensive weapon used would be and was an imitation firearm.  You were bailed on 6 December 2019.  On 23 December 2019, police executed a search warrant at Mohammed Rezai's residence where his mobile phone was seized and a text message exchange with you was identified showing you telling Mr Rezai to drop the charges because you did not want to “lose your kids for something you hadn't done”.

9You were then re-arrested and remanded in custody and charged with the summary charge of harassing a witness.  The exchange with Mr Rezai from you involved about 50 messages and essentially looking at p.12 of the prosecution summary where an extract of those messages was contained, related not to asking Mr Rezai to change his evidence but asking him to drop the charges stating 'I'm getting locked up for, it's not fair' and 'whoever made that charge against me now better tell the police they knew me because if I'm going to lose my kids over this, I'm taking every single person down with'.  'Yeah, I know what you're doing, I'm not stupid, plus I want the charges gone, otherwise by Friday, I'm gonna see your parents and tell them exactly what you're up to, I'm not losing my kids over your stupidity'.  This matter proceeded to the point that at a second committal case conference, the matter was resolved and listed for a plea in the County Court. 

10I now turn to your personal circumstances.  You are 33 years of age and you have no prior convictions.  You were born in Pakistan where your family had fled to escape the war in Afghanistan.  You have two sons aged 11 and five.  You came to Australia with your family in 1991 when you were aged four, your parents settling in Perth.  Your father worked in the industry of dismantling cars but is now on a disability support pension following a serious motor vehicle accident which has left him blind in one eye and confined to a wheelchair.

11Your mother works in home duties and as your father's carer.  You are the second eldest of six children born to your parents.  Your brother, Omar has a long history of offending and it is clear that his girlfriend who was also involved in this offending has an equally long history.  Both of them have been involved in drug use and associated offending for many years.  You told psychologist, Geoff Cummins whose report was tendered on the plea, that you came from a loving family but then exhibited evident distress over physically abusive discipline which was meted out to you by your father.

12This was so extreme that as a 15 year old you were removed from your family for a period of about 18 months after teachers noted welts on your arms as a result of a beating from your father.  You told Mr Cummins that you were in foster care for about 18 months and in that time did not see one member of your family.  Your brother, Omar, was apparently also removed for a period of time.  You were eventually returned because your father's behaviour had improved and you told Mr Cummins that you forgave your father who you said, in those days smoked a lot of cannabis and you felt his drug habit underlay his behaviour towards you and other members of the family.

13Your whole family moved to Melbourne when you were age 17.  You completed year 11 before coming across to Melbourne.  At the age of 18 you were told by your father that the whole family was going to Afghanistan where you were to meet your future husband, Noor, the marriage with him having been arranged without your knowledge or consent.  You went to Afghanistan and were there married to Noor and then returned with him to Australia.  You then began what, in my view, is an extremely impressive work history.

14You started working 12-hour days, seven days a week in a charcoal chicken shop in Berwick which was owned by a family friend.  You kept working when you fell pregnant at the age of 21, at the same time attending a six-month course at Dandenong TAFE in community pharmacy.  You then obtained work in a pharmacy in Endeavour Hills where you worked from 2011 until November 2019 along the way undertaking a number of extra certificates and education in that field, copies of which were included in the brief.  You rose to the position of manager at that store.

15During that time you were the sole breadwinner.  Your husband was abusive and never worked and your marriage to him ended when you left him about five or six years ago.  He has no contact with your sons and has never offered any financial support.  According to Mr Cummins you are a practising Muslim.  You do not drink alcohol or use drugs.  You essentially became, as your counsel described it, the glue in your family.  You are the one who has driven your father to numerous medical appointments, you have contributed financially to your family for many years.  You organise your parents affairs, as they have little or no English.

16Your oldest sister suffers from schizophrenia as does another brother.  Your brother Omar as I said has been in trouble for many years.  You have your 22-year-old sister, Naso and then you have a 17-year-old sister undertaking VCE.  All of them live at your family home.  Eventually, you met another man, Menad Mohammed who works in security.  You married him in late 2018 after this offending and a week after your wedding you were arrested in relation to these matters.  He is a, as I understand it, upstanding man with no prior history, a husband whom you love and whom you have chosen. 

17As a result of being placed back in custody, your children have been returned to your family's home, your husband who has no children of his own and has never been married before, was not in a position to care for your sons.  They have been living, as your counsel put it, in a very crowded household, involving an extremely disabled grandfather and two mentally very unwell adults - their aunt and uncle.  You have been particularly concerned at missing your youngest son's first day at school.  Your younger sisters have assisted them with home schooling but I agree with your counsel's submission that this is certainly not an ideal environment for your children to be placed in.

18The background to your offending, as I understand it, was that you lent the brother of the complainant, Mohammed Rezai $10,000.  He was a family friend and your understanding was that he needed that money in order to pay for urgent and serious surgery on his father.  You were promised that the money would be returned swiftly.  You made a number of attempts to obtain the money back in about September and October of 2019 but eventually learned that your money had in fact not been spent on surgery but used by this man to fund his gambling problem and to be used by him in a drug dealing business that he was setting up.

19Eventually it seems you became enraged.  Unfortunately your brother Omar became involved and the plan was made to order the bags of cocaine were to be them on-sold as a way of recouping what you regarded as your hard-earned money.  This was of course, extremely stupid and serious offending by you but I am satisfied it was very much out of character.  My understanding is that at the time that you engaged in harassment of Mohammed Rezai, you had been charged with aggravated carjacking and had been informed that you would serve several years in gaol as a result of the mandatory minimum term attached to such offending.  It would seem that you had some difficulty in understanding the law of complicity and certainly it is now accepted by the prosecution that the way in which the armed robbery was carried out by your brother, Omar, went well beyond what you had planned or expected.  That is clear from the basis on which the plea to armed robbery was accepted by the prosecution and by the fact that you are now charged with armed robbery in such a way and in such circumstances that the mandatory minimum and the standard sentencing that can apply both in relation to aggravated carjacking and armed robbery, does not apply to you.  The court is therefore not restricted in the sort of disposition it can hand down in your case.

20The prosecution submission was that I should deal with you by way of a term of imprisonment comprising a maximum and a minimum term.  It was conceded by the learned prosecutor, however, that mercy was a feature and a principle to which the court could have regard in this case.  It is clear you got nothing from this armed robbery and that the circumstances of it were somewhat unique.  I am in no way approving of what you decided to do, Ms Azimi.  It was, quite apart from being very serious and stupid, what could be termed as a vigilante action on your part in order to obtain the money.

21Whilst in custody you have been working in horticulture five days a week and have undertaken whatever courses there that you can.  I am satisfied that you are remorseful for your offending, as indicated by your plea of guilty and by what you have told other members of your family from whom I received written references and in relation to what you said to Mr Cummins.  I am satisfied, given your prior very good history and hardworking nature that you have very good prospects of rehabilitation.  Indeed, Mr Cummins himself was of that view.  Your situation has been worsened by the onset of the COVID-19 restrictions which have meant that for the past three months you have had no direct contact with your children.  This is a situation which it would seem could go on indefinitely. 

22The concept or the principle of mercy was classically outlined by King C J in the case R v Ozenawski [1983] 3 South Australian State Reports, p.12 which is:

'There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of a case'.

23Your counsel submitted that I should deal with you by way of a combination sentence, that is the imposition of a term of imprisonment combined with a community corrections order, relying on the mitigating factors in your case and the principle of mercy.  In particular, he referred to the case of Bolton which is extremely well known to this Court.  In particular, he relied on the observations by the Court of Appeal in that case, that a community corrections order may be imposed in the sorts of cases which might otherwise be regarded as extremely serious. The way Their Honours put it was that:

'The sentencing judge may find that in view of the objective gravity and the personal circumstances of the offender, a properly conditioned community corrections order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment whilst affording the best prospects of rehabilitation'.

24What Their Honours had to say in Bolton's case combined with the principle of mercy has led me to the decision that you should be dealt with by a combination community corrections order and term of imprisonment as proposed by your counsel. 

25I do so for the following reasons.  Firstly, your prior very good history which you have carved out for yourself in the face of a very difficult family upbringing, involving excessive punitive discipline and the arrangement by your parents of an unsatisfactory marriage from which you received no support.  Against considerable odds you have stayed out of trouble.  You have been a mainstay support to your family, I am satisfied and you have carved out for yourself a most praiseworthy career.  You have of course lost that career now as a result of your actions, which I regard to some extent as what is called extra-curial punishment, that is punishment simply arising as a result of the offending, that is the loss of that hard-earned career.

26I am satisfied your prospects of rehabilitation are excellent and that the principle of specific deterrence and protection of the community have no part in the sentencing exercise before me.  I am satisfied, secondly, that you are remorseful for your actions.  I regard your reason for offending, which I do not in any way seek to trivialise as anything other that serious as being somewhat unique.  This was not an offence carried out for reasons of greed or in order to support some illicit habit.  Essentially you had been unscrupulously cheated out of your hard-earned money which was given in an act of generosity.  As I have said, this in no way provides an adequate excuse for your offending but it is a unique reason for undertaking it.

27On the other hand, this is a double-edged sword. As I have said, what you did amounts in many respects to an act of vigilantism to which the courts must always react sternly.  I take that into account in reaching the decision that I have but do nevertheless find your situation to be singluar.  In relation to the charge of harassment, I am satisfied that occurred in the context of your situation at the time where the crime that had been carried out in a way which well exceeded what you had expected and had occurred in the context of someone you knew well, essentially dudding you out of your money.

28That harassment did not involve you seeking to urge this person to give a false view of events and in my view was fuelled to some extent by panic at the situation that you found yourself in.  Again, I do not regard that as an excuse but it is some sort of explanation.  You still enjoy the support of your husband who wrote a reference to that effect and you are in a particularly difficult situation in gaol where because of the COVID-19 restrictions, you are unable to see your children, to have contact with them and this is a situation that could go on indefinitely.

29Certainly, I regard the fact that you have been unable to have contact with your children in the last three months also as a form of extra-curial punishment.  Essentially general deterrence remains the main punitive factor in the sentencing exercise in this case in my view.  The prosecution do accept this armed robbery went far beyond what was planned by you, however, do urge that because of this principle, I deal with you in the way that I have outlined in terms of their submission.

30Overall, I regard this offending as occurring in a set of circumstances which are unlikely to be repeated.  In my view the principle of general deterrence is adequately met in these unusual circumstances by the imposition of a combination of gaol and then release on to a community corrections order.  At the last hearing, I indicated that I would probably deal with you by way of a term of imprisonment which involved one or two more months in custody, however in reviewing and considering my decision, I have determined that I should sentence you to a term of imprisonment comprising the time you have already served.

31Mr Prosecutor could you please let me know what the current PSD is?

32MR NANKIN:  Your Honour, I have 175 days.

33HER HONOUR:  Thank you very much.  I will therefore sentence you to a term of imprisonment on an aggregate basis of 175 days which sentence I declare to have already been served by way of pre-sentence detention and to place you on a community corrections order for a period of two and a half years.  Do you understand what I am saying, Ms Azimi?  I am not sentencing you to any extra time in gaol, all right?  Can you hear me?

34OFFENDER:  Yes, I can.

35HER HONOUR:  Thank you.  Before I can place you on a community corrections order, however, I must first receive your consent and I have to outline the conditions of that order to you.  They are that you must report to the community corrections office within two workings days of the making of this order, that is by Friday of this week.  The order will last for two and a half years.  Whilst on that order you must not commit another offence punishable by imprisonment.  Now, you have to be really careful here. 

36OFFENDER:  Yep.

37HER HONOUR:  That does not mean you commit an offence for which you are sent to gaol.  If you commit an offence which theoretically you could be gaoled for, like stealing a box of matches from Coles, that would breach the order and you would be brought back to court and you would be re-sentenced for this offending.  Whilst on the order, you may not leave Victoria without the permission of the Community Corrections Office.  You must report any change of address or employment to the Community Corrections Office within 48 hours of the making of that change.

38You must report to and receive visits from the Community Corrections Office.  You must report to Corrections under the influence of drugs or alcohol and you must obey all lawful directions of the Community Corrections Office.  I am going to order that you undertake 200 hours of unpaid community work.  Now, the Community Corrections Office is presently not assigning unpaid community work but that will change over time.  You also indicated to Mr Cummins and to the assessing officer that you have been getting some mental health treatment whilst in custody and this is something that you would like to continue.

39It has been recommended therefore that I place you on a condition which I will do to seek treatment and rehabilitation for mental health difficulties.  I am also going to order supervision, all right?

40OFFENDER:  Yep.  Yep.

41HER HONOUR:  Are you prepared to enter this order?

42OFFENDER:  Yes, I am.

43HER HONOUR:  Thank you very much.  Now, what we have to do, is I am going to stand down whilst my associate gets the paperwork ready and she will explain what the situation will be about you signing that and us getting that to you at the gaol as soon as possible.  Because essentially what my sentence means is that you should be released today, all right?

44OFFENDER:  Thank you.

45HER HONOUR:  Thank you very much.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of two and a half years and order that you serve a minimum term of 18 months.  Actually, I withdraw that, sorry, I withdraw that.  That would not be enough.  I would sentence you to a term of imprisonment of three years and six months and order that you serve a minimum term of 18 month.  Again, because of the unique circumstances surrounding this offending.  Is that all that I need to attend to, gentlemen?

46MR DE KRESTER:  Yes, Your Honour, I just wanted to, I think it might have cut out.  I have got 175 days, that is the declaration that Your Honour has made in relation to the sentence?

47HER HONOUR:  I think, was it 175 or 179, Mr Nankin?

48MR NANKIN:  I have 175.

49HER HONOUR:  A hundred and seventy-five days, yes.

50MR NANKIN:  Yes.

51HER HONOUR:  Yes, that is correct.

52MR DE KRESTER:  That is my calculation too, yes, thanks, Your Honour.

53HER HONOUR:  Thank you.  I am just going to stand down whilst the paperwork is sorted out.

54MR DE KRESTER:  If Your Honour pleases.

55MR NANKIN:  If Your Honour pleases.

56HER HONOUR:  Thank you very much.

57(Short adjournment.)

58HER HONOUR:  Thank you.  All right, now we have had a bit of a filing number difficulty, is that right and we need you, Mr Nankin to formally state the case number in relation to the harassment charge is not pursued.

59MR NANKIN:  Yes, in relation to the case number ending with three ‑ ‑ ‑

60HER HONOUR:  Yes.

61MR NANKIN:  ‑ ‑ ‑ the summary charge will not be pursued.  Instead it has been amended to the case number ending in four.

62HER HONOUR:  Thank you very much for that.  All right, that means I can therefore deal with the matters in an aggregate way.  There is no problem with my doing that as far as I can see, Mr Prosecutor?

63MR NANKIN:  Not that I can see either, Your Honour.

64HER HONOUR:  I am going to take the unusual step of being the first one to sign this because we need to get it off to the gaol.  Has anyone got any difficulties with me doing that?

65MR DE KRESTER:  No, Your Honour.

66HER HONOUR:  No, thank you.  Well, I am signing that now.  All right, I will give you that and I will sign the - excuse me.  Yes, that is fine.  I have signed all that too.  All right, thank you very much.  Good luck, Ms Azimi.  I thank counsel very much for their assistance.  We will stand down till midday, thank you.

67COUNSEL:  If Your Honour pleases.

68HER HONOUR:  Thank you.

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