Director of Public Prosecutions v Bahsa
[2017] VCC 2065
•12 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication | |
Case No.17-00038
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAHA BAHSA |
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JUDGE: | HIS HONOUR JUDGE BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 September 2017 | |
CASE MAY BE CITED AS: | DPP v Bahsa | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 2065 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Sharpley | |
| For the Accused | Ms R. Rocca |
HIS HONOUR:
1 Mr Taha Bahsa, you are to be sentenced for one charge of armed robbery. The maximum sentence is 25 years imprisonment.
2 You pleaded guilty before me on 4 May 2017. When interviewed by police on 19 October 2016 you initially denied the offending; but on the same day made a statement admitting your involvement. The committal went by hand-up brief on 16 January 2017 after which you pleaded guilty. The matter was then listed for plea hearing in this court.
3 You receive the benefit of your plea of guilty and that level of cooperation, both at and from an earlier stage. You have thereby facilitated the interests of justice. I accept that you are remorseful.
4 At the plea hearing, which ran on 5 September, Mr Sharpley, for the Crown, tendered a written Crown opening, the police statements of your victim Rohulla Mohebi and co-offender Shanra Pearmain and photographs of the location of offending and injury to Rohulla Mohebi.
5 Ms Rocca, for you, tendered a number of letters of work and character reference and your own police statement of 19 October 2016.
6 The immediate circumstances of your offending are set out in the tendered Crown opening, which is Exhibit A. My own summary also has had reference to the tendered police statements just identified and to submissions put to me on your behalf.
7 The explanation in your police statement of the circumstances leading to the offence are not challenged.
8 As at date 21 August 2016, you were aged 19. Your co-offenders, Ali Al-Bab and Shanra Pearmain, 19 and 17 respectively, and your victim, Rohulla Mohebi, 20. Shanra Pearmain knew Mohebi. She was romantically involved with Al-Bab. You knew and were a friend of Al-Bab. I sentenced Al-Bab to a term of youth justice detention on 7 July.
9 On 20 August you had booked a room for him at the hotel Mantra on Jolimont. He told you that he wanted to bring a girl there. The girl was Pearmain. You, unlike him, had a credit card. You spent some time at the room and returned there on Sunday 21 August. Pearmain was there. It was decided to buy cannabis. Pearmain knew Mohebi and rang him to arrange a sale. Ultimately Mohebi made contact and wanted to meet Pearmain outside. He said he did not have the cannabis. There is suggestion of Pearmain having some grievance against Mohebi.
10 The decision was made to rob him. In your statement you say you felt pressure to be involved arising out of friendship with Al-Bab. Pearmain arranged to meet Mohebi at the back of the hotel. Al-Bab armed himself with a carving fork taken from the hotel room kitchen. You all wore hooded jackets or tops.
11 As to the immediate circumstances of the armed robbery you will be sentenced on the basis of the Crown opening which in turn reflects Mohebi's account. I do not accept those aspects in your statement which conflict with the Crown opening. I refer particularly to paragraphs 13 and 14 of your statement.
12 The Crown opening was also the basis of my sentence of Al-Bab. It is appropriate that I quote from that part of my sentence of him. There is some paraphrase to clarify identity. I quote:
"Mohebi was waiting for a friend, Pearmain, in or near Jolimont Lane in East Melbourne. Bahsa, pretending to ask for directions, assaulted him grabbing his head and pulling it down. He demanded his wallet. You, Al-Bab, and Pearmain were nearby. You, Al-Bab, joined in armed with what is described as a carving fork. You, Al-Bab, threatened to stab Mohebi posturing as if to do so. You, Al-Bab, demanded what he had and went through his pockets. Mohebi was still held by Bahsa. You stole his mobile phone, wallet and car keys and then his car. Bahsa further assaulted him, punching and throwing him to the ground. Mohebi stated to the police that he was in fear of his life.”
His injuries are stated as follows at paragraph 10 of the Crown opening. “At the time of making his statement on 28 August 2016 the victim's neck was still sore. Both sides of his jaw hurt and he had sustained a cut to his left elbow."
13 Mohebi has not made a victim impact statement.
14 I accept (it is not challenged) that you received no benefit or proceeds.
15 You are a 20 year old man who has no prior criminal history. There is a subsequent matter in that you appeared before the Magistrates' Court in April of this year charged with handling stolen goods. I was told this morning that the offending occurred shortly before sentence in April. I was told that you received a good behaviour bond for that offending.
16 Ms Rocca detailed your personal history which in some ways has been harsh. You are of Lebanese background, but born in Australia. Your mother left the family when you were aged 18 months and you have been raised by your father and stepmother. At your age of four your father re-partnered. You have a good relationship with your stepmother. That with your father has been more difficult. Features have been physical discipline and abuse, further the requirement that in your early to mid-teenage years you work to support the family. You have six younger stepsiblings. There has also been a premature expectation of your role in care for them.
17 However, you still live with the family. Ms Rocca described a culturally formed respect for your father. Your father's angry and violent behaviour became particularly so during an acrimonious family law proceeding in respect of your mother when you were aged 11 to 12. At times he has been away from Australia and you have been required to play his authoritative role in care of the family.
18 Such demands as Ms Rocca set out affected your schooling, at which you showed ability and promise. A part of the tendered material is the letter of a senior teacher at your secondary school. You seem to have left school at Year 10. Your father wanted you to do so.
19 In the context of this upbringing you have an impressive employment record, both during and after school. For example, your first job was at 13. Sometimes there have been two jobs at the same time. Variously, you have worked at food outlets such Red Rooster and Hungry Jack's, as a shop assistant and a fabric manufacturer. In 2014 you began and completed 12 months of a plumbing apprenticeship, leaving that for better money installing CCTV cameras. You worked at that company in 2015 to 2017, entrusted to install security cameras at hotels, apartments, police stations and privately for police officers.
20 Ms Rocca placed emphasis on what has happened since the offending. She stated that you now have no contact with Pearmain or Al-Bab whom you had known as a friend for some years. You have resumed a second year apprenticeship in plumbing. You have a stable relationship with a young woman, begun since this offending. Her letter is part of the tendered material. I was told that you abstain from drugs and alcohol.
21 As was raised in discussion with counsel this morning I note and have borne in mind that, in April of this year, as I have earlier described, you were before the courts for offending in April, receiving a good behaviour bond for the offence of handling stolen goods.
22 Armed robbery is a serious offence, for example, measured by its high maximum sentence. I stated as follows to Ali Al-Bab when sentencing him and it is applicable to you and your role. I quote:
23 "This was a frightening and cowardly attack upon your victim. You", this was a reference to Al-Bab not to you, "You have prior offending some particularly relevant. Your offending is escalating." Again, I interrupt to say that was a particular reference to Al-Bab not you.
"Such circumstances make relevant sentencing considerations of deterrence, your moral culpability, the need to express condemnation of what you did and to punish proportionately."
24 As I will further develop later in my sentencing reasons I see you to be in a different situation to Al-Bab. However, those sentencing considerations that I have just identified and identified to him are still applicable to your sentence.
25 I sentenced Al-Bab to youth justice centre detention for two and a half years. 117 days of pre-sentence detention were declared. He served that in the adult system.
26 However, in your case I find strong factors personal to you which justify a non-custodial sentence. They include the following matters.
27 One, your plea of guilty and cooperation. As stated, I find that you are remorseful.
28 Two, the circumstances of your personal background. It is not only the hardship shown, but that you present with qualities which support a strong capacity for rehabilitation.
29 Three, to some extent the circumstances leading to your involvement. For example, I accept the proposition that the social limitations of your background made you, at a young age, vulnerable to the pressure of loyalty to a friendship group.
30 Four, you are still young and rehabilitation is an important sentencing consideration. I see you as having genuine prospects for that. You seem to have managed your life since consistent with that. Again I note that I bear in mind that you were before the court in April of this year, however.
31 I have not applied parity of sentence with Al-Bab. A significant difference between you is his greater number of prior and, particularly at time of sentence, subsequent and pending matters. Your prospects for rehabilitation should be seen as good and capable of being enhanced without youth justice custody. As is seen in my sentence of Al-Bab, whilst because of his youth rehabilitation was a significant consideration I expressed some reservation about the present likelihood of it. I refer to that remark and also my reference to relevant parts of the assessment of his suitability for youth justice detention provided to me.
32 I have decided that the proper sentence is a community corrections order. There should be both punitive and rehabilitative conditions. I see such a sentence to meet the relevant purposes and the Crown does not argue that such a sentence is not within range.
33 I have received the assessment report of Rebecca Edwards of Community Corrections. You are found suitable for such an order. Her recommendations were discussed between myself and counsel this morning before I commenced my formal sentence. In accordance with those indications I am going to sentence you now.
34 Stand up please. You are convicted and I impose a community corrections order of two years. The usual terms apply. There are the additional special conditions as follows.
35 You shall perform 300 hours of unpaid community work during the course of those two years. You will be under supervision. I impose a non-association order in that you are not to associate during the course of the order with Ali Al-Bab and with Shanra Pearmain. I also impose a condition that you comply with offence specific programs as you are directed.
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HIS HONOUR: Now we will prepare that document now. If you could sit down. Thank you. You can come out of the dock and stand near Ms Rocca please. I need to explain the terms and conditions of the order. I will do that now.
I have imposed a community corrections order of two years, so it will last until 11 September 2019. Now the usual terms of these, that you do not commit another offence for which you could be imprisoned during the time that the order is enforced. I give you this caution. Do not be fooled by the phrase "for which you could be imprisoned." Almost all offences under our system are punishable by imprisonment. So you would not have to get imprisonment before you came back before me.
You must comply with an obligation described by a regulation of the sentencing regulations that you do not attend any work program, appointment or the like affected by alcohol or drugs or in possession of illegal drugs. You must report to and receive visits from Community Corrections. You must report to the relevant Community Corrections Centre which is noted here as Carlton Community Correctional Services within two working days of this order. That is of today. You must let a Community Corrections officer know within two working days of a change of address or job. You must not leave Victoria without getting permission from them to do so and you must obey all lawful instructions and directions of Community Corrections.
Now the additional conditions are these. That you perform 300 hours of unpaid community work over those two years, as you are directed. That you be under the supervision of a Community Corrections officer. That you participate in programs or courses that address factors particularly relating to this offending as you are directed. That you must not contact or associate with Ali Al-Bab and Shanra Pearmain for a period of two years. Now do you understand all of that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: Yes and do you agree to it?
OFFENDER: I agree.
HIS HONOUR: All right. Well I'll get you to sign. It's Carlton. It's probably Broadmeadows. Yes, we'll have to - I'm sorry, take - you can take a seat behind Ms Rocca.
MS ROCCA: Thank you, Your Honour.
HIS HONOUR: We'll have to correct that. Where did Carlton - did they put Carlton? No, it's - they've put Broadmeadows. All right. Well we've changed that. Now it can be taken down and you can sign it. All right. That'll be fitted out for him, will it? All right. Now you can go in a moment. Now I need to - stand up. I need to explain to you that if you breach this order by not complying with these conditions or committing an offence punishable by imprisonment you come back before me and I look at it all again, all right? I don't see that I'd have much choice but to impose a sentence like the one I imposed on your friend. You understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right. Good. All right. Well - - -
MR SHARPLEY: Your Honour, there is a 464ZF application.
HIS HONOUR: Is there? All right. We need to do that. Is that the only - now I also
- I don't have to state a s.6AAA application if I don't sentence to custody, is that right?
MR SHARPLEY: I think that's the situation, Your Honour.
HIS HONOUR: Well I won't then. I think you indicated some opposition to this, didn't you?
MS ROCCA: I did, Your Honour.
HIS HONOUR: Is there any particular reason? Other than the fact that he hasn't got prior - - -
MS ROCCA: No priors, Your Honour, and just from a rehabilitation point.
HIS HONOUR: Right. How would it stop his rehabilitation?
MS ROCCA: Just to give him that - to know that he's been - the way the sentence is and - - -
HIS HONOUR: Well I think he's - it's very unusual for somebody who's committed an armed robbery not to get - to get into some sort of custodial situation, isn't it, Mr Sharpley?
MR SHARPLEY: Indeed, Your Honour, yes.
HIS HONOUR: Look, I think the seriousness of this offending and the fact that such a sample, if stored on the database as you expect to happen, can be of particular benefit to investigators by way of DNA residue, for example, that I think I should make the order. I think it would be irresponsible not to do it. Now you - stand up. I just need to explain this. What this means is that you have to supply a sample of your saliva. You'll organise that with the police at Broadmeadows after waiting for four weeks but before another four weeks goes by. So you've got eight weeks. As I said, they use a cotton swab. Place it inside your mouth and you supply it in that way. It doesn't sound hard to me although I've not seen it. If you cooperate in that that's the end of it. If you don't they sample - a sample of blood may be taken by injection and reasonable force use, all right? Now I stated my reasons for this. It's really the seriousness of this offending. This offending attracts a 25 year maximum sentence of imprisonment. It's a very serious matter. I think you've been given a good go. All right. Take a seat and I'll sign it now. There you go. Can you give it to him? All right. He's going to get that now, is he? Isn't there a copy for him too? How's he expected to make arrangements to do it if he doesn't get a copy? Give him a copy. Do we not usually give a copy? Well I think that's ridiculous. I'm not blaming you but I think it's ridiculous. Fancy requiring somebody to do something by a certain time and you don't even give him the document. I'll make sure it happens in the future.
MS ROCCA: Thank you, Your Honour.
HIS HONOUR: Good, all right. You can go now. Thank you, Mr Sharpley.
MR SHARPLEY: Thank you very much, Your Honour.
MS ROCCA: Thank you.
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