Director of Public Prosecutions v Bakhour

[2022] VCC 2051

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-00697

DIRECTOR OF PUBLIC PROSECUTIONS

v

WALEID BAKHOUR

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JUDGE:	His Honour Judge Rozen
WHERE HELD:	Melbourne
DATE OF HEARING:	4 November 2022
DATE OF SENTENCE:	22 November 2022
CASE MAY BE CITED AS:	DPP v Bakhour
MEDIUM NEUTRAL CITATION:	[2022] VCC 2051

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW

Catchwords: Attempted Armed Robbery – Verdict following Trial – Unusual Features of Offending – Low-Level Example of Offence – Offender’s Mental Health – High Prospects of Rehabilitation – Community Correction Order

Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited: Cheung v The Queen (2001) 209 CLR 1; R v Mills [1998] 4 VR 235; Boulton v The Queen (2014) 46 VR 308

Sentence: 12 month Community Correction Order – 100 hours of unpaid work

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Teo	Office of Public Prosecutions
For the Accused	Mr M. Reardon	Victoria Legal Aid

HIS HONOUR:

1Waleid Bakhour, on 12 July 2022, a jury of 12 found you guilty of the offence of attempted armed robbery contrary to ss 321M and 75A of the Crimes Act 1958 (Vic). The maximum penalty for that offence is 20 years’ imprisonment.

2It is now my role to sentence you for this offending. The task of a sentencing judge following a jury verdict is clear.  The judge is obliged to determine the factual basis upon which the convicted person is to be sentenced.  The facts found must not be inconsistent with the jury's verdict and any adverse findings must be made to the criminal standard.[1]

[1] Cheung v The Queen (2001) 209 CLR 1, 19 [38].

3The circumstances of your offending are described in the Summary of Prosecution Opening dated 11 August 2021 (‘Opening’). In turn, the Opening was based largely on the evidence of the complainant, Daniel Pisano (‘the victim’). You are to be sentenced on the basis that the jury accepted the evidence of the victim as credible, reliable and honest. The following summary is drawn from the Opening.

4In late-2019 or early-2020 your cousin told you about a friend of hers called Angelique Ranno who you knew. She told you that Angelique’s boss at work had touched her inappropriately. You decided to take matters into your own hands to scare this man. You knew where he worked and what car he drove so you planned to follow him home.

5You spoke to a friend called Belal Naaman who drove a white Toyota. You arranged for him to pick you up and then to drive to the café where the victim worked and wait until he finished work. You asked Mr Naaman to drop you off where the victim stopped.

6On 10 January 2020, the victim closed the Sheesh Grill restaurant and left at around 2:35 to 2:40 AM. In his possession at the time he had some of the earnings in cash from the restaurant. As he was driving home, he observed a white vehicle which was behind him.

7After the victim arrived home, parked in the driveway, and got out of his car he observed you running towards him.

8The victim left everything in his car and immediately ran to his door to wake everyone in the house, and to activate the doorbell camera, which captured the incident. You yelled, “Give me your money, you should have stayed in your car.”

9The victim observed what appeared to be a knife, which you waved in your right hand. You banged on the back window of the complainant’s car but did not approach the victim who was still banging on his door. You again said, “Give me your money”.

10The victim yelled for his father to come and moved back towards his car. As he did so, you ran away.

11The victim’s neighbour, Mr James Miller, came out after hearing a car door slam and screams from outside. He heard a voice say something that ended with the word “money”.

12Mr Miller walked outside and saw the victim standing in the street. The victim told Mr Miller that he had been attacked and they had driven off in a white sedan. Mr Miller got into his car and drove around but could not locate you.

13The victim called 000 at about 2:53 AM. He stated that a guy with a mask had run after him with something in his hand that looked like a knife. The man had said “Give me your money” and was banging on his car. He also gave a description of the vehicle and the clothing you were wearing.

14Police investigated the circumstances and executed a search warrant at your house and interviewed you on 22 January 2020. You made a number of admissions.

15You were remanded in custody for 2 days before being granted bail.

Objective gravity

16Attempted armed robbery is a very serious criminal offence. However, your case has a number of unusual features.

17I accept your counsel’s submission that ‘the jury’s verdict necessarily entails a finding that it was satisfied beyond reasonable doubt that there was a demand [for money] made, with the accompanying intent’.[2] That intent was an intent to rob the victim.

[2] Outline of Submissions dated 31 October 2022 at [37].

18Your counsel also submitted that while the evidence is that a confrontation was planned (through the use of a mask and waiting the victim to finish work), ‘the appropriate finding is that the attempted armed robbery arose out of an evolving situation’.[3] He further submitted that there remains a reasonable possibility that you attended at the victim’s house with the intention to confront him over Ms Ranno’s complaint and ‘only formed the intention to demand money at the scene’.[4]

[3] Ibid at [38].

[4] Ibid at [38].

19Mr Teo, on behalf of the prosecution, conceded fairly at the hearing of your plea that such a factual finding is open to me as being not inconsistent with the verdict of the jury.

20In these circumstances, and having heard the evidence myself, I assess the objective gravity of the attempted armed robbery as low. In the broad spectrum of cases of attempted armed robbery, yours is a low level offence. In this regard, I take into account that there was no evidence that you were aware that the victim had the takings of the restaurant in his possession at the time of the confrontation. Further, you made no attempt to take the money from the victim’s car. You in fact remained some distance away from the victim at all times.

21Yours is an unusual case of attempted armed robbery. I accept that your primary reason for confronting the victim on the morning in question was to respond to the complaint made to you by your young family friend, Ms Ranno. It was for this reason that you travelled to the victim’s home with a knife and while wearing a mask.

Personal circumstances

22You were born in 1997 and are now 25 years old. You were 22 years old at the time that you committed these offences.

23You grew up in Melbourne and you were 17 when your parents separated. You lived with your mother and were distressed by the break-up. Your mother provided a reference dated 29 October 2022 about you to the court and she describes you as genuinely and deeply remorseful for your actions. She describes what a good father you are for your daughter.

24You completed year 10 at Roxborough College before attending SEDA College to play football. Your sporting career was curtailed by injury and you completed a carpentry apprenticeship at Kangan TAFE. You have worked in various jobs most recently as a self-employed contractor building decks.

25You have been in a relationship with Zaahirah Ali for 5 years and have lived together for the last 18 months. You have a daughter Myra who is 10 months old. I accept that any sentence of imprisonment that I impose will weigh heavily on you as you will miss some of the formative periods of Myra’s life.

26The court received a character reference from Ms Ali. She is a teacher and describes you as hardworking and says that your main focus in life is your family. She describes how you have matured since this offending and this is evidenced by the support you provide her and the daughter you share.

27You are actively involved as a volunteer coach with a local football team where you are a role model for young players.

28You have no substance abuse concerns.

29You have one prior conviction for possessing a dangerous article in a public place which dates back to 2016 when you were 19. You received a non-conviction fine.

30You also have one subsequent matter about which your counsel quite properly informed the court. The court was informed that in June 2018 you trafficked a large commercial quantity of cannabis in South Australia. Your co-offender was your then-fiancee’s brother. You were recently sentenced to a 2 ½ year suspended sentence by the South Australian District Court.

Mental Health

31You were assessed on 6 October 2022 by Ms Alison Mynard, clinical psychologist. Ms Mynard’s report, dated 20 October 2022 is before the court.[5] Ms Mynard describes your offending as impulsive and motivated by protecting Ms Ranno from further sexual assaults.[6]

[5] Exhibit A.

[6] Ibid at p 8.

32Ms Mynard considers you to be a low risk of reoffending due to the quite specific circumstances of your offending. She describes you as remorseful.[7]

[7] Exhibit A at p 9.

33Ms Mynard diagnoses you as suffering from an underlying depressive disorder which was exacerbated by your father’s death. Ms Mynard considers that you will struggle in custody and your mental health will likely deteriorate.[8]

[8] Ibid at p 8.

34Ms Mynard, who makes no mention of the recent trafficking sentence, describes your prospects of rehabilitation as high and states that they would strengthen more if you could engage in the treatment options she recommends.[9]

[9] Ibid see p 9.

A Community Correction Order?

35Your counsel submitted that a CCO could meet the applicable sentencing considerations in your case. I consider these to be general deterrence because citizens must be deterred from taking the law into their own hands. You must also be specifically deterred especially in light of the drug trafficking matter described earlier. There is also a role for just punishment.

36Because of your age, an important sentencing consideration in your case is your rehabilitation.[10] Both you and the broader community will benefit from a sentence that promotes your rehabilitation. Your counsel submits, and I agree, that there is a number of positive aspects of your life which would be disrupted by a sentence of imprisonment.

[10] See R v Mills [1998] 4 VR 235.

37The Court of Appeal has concluded that the various sentencing purposes to be achieved in a case such as yours can be met by the imposition of an appropriately crafted CCO.[11] I accept your counsel’s submission that a CCO is the appropriate disposition in your case noting that the prosecution agrees.

[11] Boulton v The Queen (2014) 46 VR 308, 335 [135].

38In a report dated 7 November 2022, you have been assessed as suitable for a CCO by Corrections Victoria.

Sentence

39On the charge of attempted armed robbery, I order that you serve a 12-month CCO with conviction.

40You are convicted and must serve a 12-month CCO under which you will be required to perform 100 hours of unpaid community work.

41I need to explain to you, Mr Bakhour, the standard terms attached to all community correction orders:

(a)   You must not commit, whether in or outside Victoria, during the period of the order an offence punishable by imprisonment.

(b)   You must comply with any obligations or requirement prescribed by the regulations.

(c)   You must report to and receive visits from the Secretary or their delegate during the period of the order.

(d)   You must report to the Community Corrections Centre specified in the order within two clear working days after the order comes into force, that is within two clear working days of today.

(e)   You must notify the Secretary or their delegate of any change of address or employment within two clear working days after the change.

(f)    You must not leave Victoria except with the permission of the Secretary or their delegate either generally or in relation to a particular case.

(g)   You must comply with any direction given by the Secretary or their delegate that is necessary for the Secretary or their delegate to give to ensure that you comply with the order.

42In addition, the following special conditions apply to the community corrections order that I impose today:

(h)   You must report to Coolaroo Justice Centre within two working days of today’s date.

(i)    You must complete 100 hours of unpaid community work.

(j)    You are to be supervised, monitored and managed as directed by the Secretary or their delegate.

43Given the MHARS assessment dated 18 November 2022, no treatment and rehabilitation condition addressing Mental health assessment and treatment will be ordered.

44Mr Bakhour, I cannot make a community correction order unless you agree to the terms and conditions.  Do you agree to comply with the community correction order with the terms and conditions which I have set out?

45ACCUSED:  Yes, Your Honour.

46HIS HONOUR:   You must understand, Mr Bakhour, that if you contravene any of the conditions of the community correction order which will commence forthwith, then that in itself is an offence punishable by a maximum of 3 months’ imprisonment.  Should that occur, you will be brought back before this court and it is possible that, depending upon the circumstances, the order will be cancelled, and you will be ordered to serve a term of imprisonment instead.

47I make the disposal order sought by the prosecution, noting that it is not opposed.