Director of Public Prosecutions v Barahuee, Miad
[2012] VCC 2029
•13 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-02188
CR-12-01930
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MIAD BARAHUEE |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 December 2012 | |
DATE OF SENTENCE: | 13 December 2012 | |
CASE MAY BE CITED AS: | DPP v Barahuee, Miad | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2029 | |
REASONS FOR SENTENCE
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Catchwords: Plea – sentencing – two indictments – criminal damage – armed robbery – theft - arson
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APPEARANCES: | Counsel | Solicitors |
| For the Crown at hearing For the Crown at sentence | Ms. F. Holmes Ms. G. Coghlan | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Mr K. Oldis Mr B. Nibbs | C Marshall & Associates |
HIS HONOUR:
1 Miad Barahuee, you have pleaded guilty to one charge of criminal damage and one charge of armed robbery on Indictment Number B10756009.1 and one charge of armed robbery, one charge of theft and one charge of arson on Indictment Number C12044463.
- Criminal Damage carries a maximum penalty of 10 years’ imprisonment.
- Armed Robbery carries a maximum penalty of 25 years’ imprisonment..
- Theft carries a maximum penalty of 10 years’ imprisonment.
- Arson carries a maximum penalty of 15 years’ imprisonment.
2 You are presently 20 years of age, having been born on 26 May 1992, and you were aged 18 when the offending on the first indictment occurred and 20 in the case of the second indictment. The offending on the second indictment also occurred whilst you were on bail for other earlier offending. Your bail was revoked by consent on 1 August 2012.
3 You have developed an extensive criminal history for one so young, commencing with an appearance at the Heidelberg Children's Court in September 2009 at the age of 17 where, on various offences including theft and criminal damage, you were placed on 12 months' probation. Four more appearances at the Heidelberg Children's Court followed, at one of which, on 12 May 2010 just before you turned 18, you received six months’ detention in a Youth Justice Centre. On 18 March 2011 you were sentenced at the Heidelberg Magistrates' Court to 14 days' imprisonment (which in fact you had already served by way of pre-sentence detention, so you were released forthwith) and also given a 12-month Community-based Order. Four days later you committed the offences on the first indictment.
4 The circumstances of the offending as to Indictment B10756009.1 are as follows.
5 On 22 March 2011, you and a number of other people committed an armed robbery and caused criminal damage to a Club X store in Coburg North and at the time a firearm was present.
6 The other people involved were Jacob Kake, Joshua Morrison and James Coriakula. There is CCTV footage of the Club X store which depicts the offences.
7 On 22 March 2011 at approximately 10 pm, a police surveillance unit was watching the house of Mr Kake at 4 Grace Court, Lalor. The surveillance unit observed you and your co-offenders leave this address at around 10 pm and drive away in a white Toyota Camry hatchback that was registered to a person named Michael Thompson, who was also a resident at that address.
8 The four of you were observed to travel to a Coles Supermarket in High Street, Reservoir and buy a packet of Ansell multi-coloured disposable gloves. There is CCTV footage which shows you, Mr Morrison and Mr Coriakula at Coles. You then drove from the Coles Supermarket to Leamington Street, Reservoir. Mr Kake, who was driving the car, pulled up at a house under construction and got out of the car. He picked up two bricks from the house and got back in the car.
9 You all then drove straight to the vicinity of the Club X store situated at 159 Newlands Road, Coburg North. You drove around the block where Club X was situated a number of times.
10 At approximately 10.32 pm, Mr Kake parked the car near the Club X store. At approximately 10.40 pm, the four of you got out of the car and walked towards the Club X store whilst covering your faces with disguises and also having changed some of your clothing since being at Coles.
11 Mr Coriakula reached the front door of the store and attempted to open it, but it was locked. At this time the store was open but locked, given the time of night. Inside the store was a lone female staff member, Ms Ocean Reeve, and two male customers.
12 Mr Morrisson and Mr Kake threw two bricks that had earlier been sourced by Mr Kake at the door. The bricks did not completely break the glass, so Mr Morrison and Mr Kake commenced to kick the glass door in. This conduct constitutes Charge 1, criminal damage.
13 At this point, Ms Reeve locked herself in the staff room but the two male customers were still in the store.
14 One of your group entered the store brandishing a hand gun. Your group were also carrying machetes. One of you saw a male customer, a Mr Guarisco, at the back of the store and ran towards him with the gun raised and pointed at him. That offender demanded that the customer hand over a set of keys he was holding or he would shoot him.
15 Your group then assaulted the customer in an attempt to get his keys from him.
16 Meanwhile, Mr Morrison and Mr Coriakula were at the sales counter. Mr Coriakula attempted to disable the CCTV recording box, while Mr Morrison attempted to open the cash register. They were unable to open the cash register.
17 Mr Coriakula left the sales counter and headed to the back room where you and Mr Kake were trying to get the keys from Mr Guarisco. Mr Coriakula pointed his machete at Mr Guarisco and said if he did not hand over his keys Mr Coriakula would kill him. Mr Guarisco handed over his keys.
18 Mr Morrison then joined the others in the back room where Mr Guarisco was lying on the ground being kicked by Mr Kake and yelled at by Mr Coriakula and said it was time to go.
19 Your group exited the store via the broken door with stolen cigarettes and one of you carrying the unopened cash register. This conduct constitutes Charge 2, armed robbery.
20 The four of you got into the Toyota which was parked a short distance away. The entire incident lasted approximately four minutes.
21 In total, the following was stolen from the store during the armed robbery:
(a) a cash register contained $327 in cash; and
(b) 19 packets of cigarettes.
22 The damage to the door cost $2000 to fix.
23 The surveillance unit was still maintaining surveillance of your group as you left the store and got into the Toyota. At approximately 10.47 pm, the surveillance unit activated the emergency lights on their unmarked police car.
24 Mr Kake, who was driving the Toyota, drove the car straight at the unmarked police car. The Toyota hit the front of the police car and caused minor damage to it. The Toyota mounted a kerb after hitting the police car and sped from the scene. The surveillance unit continued in pursuit of the Toyota. The pursuit was terminated by the surveillance unit shortly after 10.47 pm.
25 Later the surveillance unit drove to 26 Oulton Street, Fawkner where they observed the Toyota parked out the front of that residence. This was the address of a friend of yours.
26 You, Mr Barahuee approached the house and asked whether your friend was home but were told he was not. You and another were observed to enter the house and later leave in a taxi at approximately 11.30 pm. Police intercepted the taxi at 11.36 and you and your co-offenders were arrested.
27 Later, the car was searched and the following items were found: a black machete; a white cash register taken from Club X; various items of clothing worn during the armed robbery; a packet of Ansell multi-coloured gloves and an imitation firearm.
28 You were interviewed by police the following day. You denied involvement in the offences.
29 The circumstances of the offending as to Indictment Number C12044463 are as follows.
30 On Sunday 1 July 2012, you parked a car belonging to a friend in a car park adjacent to the Subway restaurant at 623 Ferntree Gully Road, Mt Waverley.
31 At approximately 9.59 pm, you entered the Subway store and approached the front counter. Victims Vanessa Lakic and Claire Inder were working behind the counter at the time. You wore clothing which disguised your appearance, including a cloth which covered your nose and mouth. You were in possession of a tyre iron which you held above your head.
32 You screamed at the victims to "Give me the money".
33 Ms Lakic saw the tyre iron and ran to the back of the store to hide as she was in fear for her safety. You then jumped over the counter and approached both victims, this time saying "Give me the fucking safe".
34 The victims told you they did not know how to get into the safe, at which time you began hitting the drop safe that was located below the front counter with the tyre iron before kicking it free.
35 You then made the victims open the till and told them put the money that it contained in a bag for you, which they did.
36 You then ran from the store and yelled out as you left "Don't call the cops or I'll come back". You stole approximately $1626.85 in cash, as well as the drop safe. This conduct is represented by Charge 1 on the second indictment, armed robbery.
37 You then returned to your friend's car and put the tyre iron under the front passenger seat. The car would not start so you got out of it, dumped the hooded jumper and T-shirt that you had worn during the armed robbery behind the car and walked into the Sette Bello Restaurant nearby and got staff there to call you a taxi.
38 You took the taxi to Glen Waverley railway station. There you left your phone with the taxi driver to hold as security until you were able to pay him later that night.
39 You then attended The Ridge Glen Waverley, where you stole a 1991 silver Toyota Camry station wagon. This conduct is represented by Charge 2, theft.
40 You then drove that vehicle to Swanston Street in Melbourne to locate and pay the taxi driver the outstanding fare and collect your mobile phone.
41 At approximately 2.30 am on Thursday 5 July 2012, you set fire to the stolen Camry, destroying the vehicle which was valued at $3000. This conduct is represented by Charge 3, arson.
42 On Thursday 19 July 2012 you were interviewed at Heidelberg Police Station during which you made no admissions of any value.
43 The victim impact statements tendered give expression to the very understandable fear and anxiety that is felt by victims of this type of offending. That anxiety can be felt for extended periods.
44 I now turn to your personal circumstances.
45 As I noted earlier, you are now aged 20 and you were 18 and 20 at the different times of offending.
46 You have had an unfortunate and disrupted childhood. You were born in Iran and your parents’ marriage dissolved when you were four. Your father has a significant offence history in Iran involving violence and drug and people trafficking. You, your brother and your sister were taken by your father against your mother's wishes and you did not see your mother for a year. She eventually located you and your brother and successfully escaped with you to hiding in Pakistan, where you remained for five years. Your mother was unable to get your sister, who was a virtual captive of your father.
47 You returned to Iran with your mother and brother, but your father discovered your return so your mother arranged for you and your brother to be smuggled to Turkey. You lived with other refugees in Turkey before being reunited with your mother. The three of you eventually managed to locate to Melbourne in 2006, when you were approximately 15.
48 Your mother was depressed on her arrival in Australia, given that she had not obtained custody of her daughter. She received advice that her brother had been murdered by your father for his assistance in hiding her. Your mother worked and was not able to give you support. You found it hard to adjust, not speaking English initially.
49 Your sister eventually also escaped your father and was sponsored from Turkey to be with you. She is significantly traumatised from her experiences and suffers a range of mental health difficulties.
50 You attended English language courses and entered Year 9 at school. You gave priority, however, to social activity and your activity was not closely monitored at home because of your mother's and sister's challenges. You drifted to negative peers and anti-social pursuits including increasing cannabis and alcohol use. You had begun a daily use of amphetamines by age 17. You report that this gave you a sense of euphoria and improved well-being and that your negative peer associations additionally empowered you and you became attracted to an offending and anti-social lifestyle.
51 A report from Mr Michael Bilyk, psychologist, was tendered on your plea. Mr Bilyk interviewed you and conducted psychometric testing. Unsurprisingly, you meet diagnostic criteria for substance abuse, which abuse has impaired your social, emotional and vocational functioning. This has combined with your unfortunate past where you have not had the benefit of guidance with appropriate behavioural boundaries. You are not unwell psychologically, you have an absence of major mental illness and have a capacity to be relatively insightful. You do have elevated scales of temper and impulsivity, responding angrily with little provocation. Whilst I am guarded about your motivation for rehabilitation, I believe you do have the capacity for it if you set your mind to it, and the sentences I intend to impose are designed to encourage that process.
52 Your mother gave evidence on the plea and confirmed your early history of family disruption and escape from Iran. She also explained her difficult circumstances after arriving in Australia and her depression and inability to supervise you. Your mother also explained how you have a deep interest in cars, that your brother has established a motor mechanic business and that you are enthusiastic about working with him upon your eventual release. You will also have the availability of accommodation at her recently acquired home.
53 Your offending is very serious. Armed robbery, in particular, is regarded as one of the most serious of offences and its seriousness is partly reflected in the maximum penalty of 25 years' imprisonment imposed by Parliament. Your offending on the two indictments now before me is a serious advance on the type of offending in your past, which had been principally motor vehicle theft and associated vehicle offences. Furthermore, an imitation firearm was carried amongst your group during the course of the Club X robbery.
54 Whilst your youth remains an important consideration in sentencing, requiring an emphasis on rehabilitation, the serious nature and the repetition of these current offences also requires that principles of denunciation and general and specific deterrence be given appropriate effect.
55 In mitigation, I have taken into account the matters urged upon me by your counsel including:
· your pleas of guilty;
· your very disadvantaged and dislocated childhood which has led to a dysfunctional life;
· your now relatively entrenched drug habit;
· the fact that you have had no previous history of violent offending before this group of offences;
· your youth and your capacity for rehabilitation; and
· the support you have from your mother and brother.
56 I have also considered issues of parity with your co-offenders. Mr Coriakula was sentenced by me as to the earlier offending on 10 November 2011 on four charges of armed robbery and one charge of criminal damage. He received a total effective sentence of four years' imprisonment with a non-parole period of 24 months. I note that Mr Coriakula had an extensive prior criminal history and he was 19 at the time of offending.
57 Mr Morrison was also sentenced by me as to the earlier offending on 10 November 2011 on three charges of armed robbery and one charge of criminal damage and received a 20-month Youth Justice Centre Detention Order. I note that Mr Morrison had no prior criminal history, was aged 18 at the time of offending and was assessed as suitable for Youth Justice Centre attendance.
58 Mr Kake was sentenced as to the earlier offending by the Melbourne Children's Court on 13 July 2011. He received a total effective sentence of 15 months' detention in a Youth Justice Centre, with convictions for three armed robberies and one theft of a motor vehicle.
59 I have carefully considered whether your sentence should be by way of Youth Justice detention. In my view, the seriousness of your offending on these matters, your history of offending, its regular repetition, the more serious development of the type of offending, that the first armed robbery was committed just four days after you had been placed on a Community-based Order, that the second group of offences were committed whilst you were on bail and that you have been assessed as not suitable for Youth Justice detention, all persuade me that such a course is not desirable.
60 I note that because the offences on Indictment C12044463 were committed when you were released on bail for other offending, the usual presumption of concurrency of sentences is, pursuant to s.16(1A)(e) and (3C) of the Sentencing Act, rebutted, and any terms of imprisonment imposed on you for these offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on you. Because of considerations of totality and the circumstances of your youth, I propose to direct part concurrency between these two indictments.
61 Mr Barahuee, as to Indictment C12044463:
- on Charge 1 of armed robbery you are convicted and sentenced to 18 months' imprisonment;
- on Charge 2 of theft you are convicted and sentenced to 12 months' imprisonment;
- on Charge 3 of arson you are convicted and sentenced to 12 months' imprisonment.
62 Charge 1 is the base sentence. I direct three months of the sentence imposed on Charge 2 and three months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 1 and upon each other.
63 The total effective sentence on Indictment C12044463 is two years' imprisonment.
64 As to the charges on Indictment B10756009.1:
- on Charge 1 of criminal damage you are convicted and sentenced to two months' imprisonment;
- on Charge 2 of armed robbery you are convicted and sentenced to 18 months' imprisonment.
65 Charge 2 is the base sentence. I direct that one month of the sentence imposed on Charge 1 be served cumulatively on Charge 2.
66 The total effective sentence on Indictment B10756009.1 is 19 months' imprisonment.
67 I direct that six months of the sentence imposed on Indictment B10756009.1 be served cumulatively on the sentence imposed on Indictment C12044463.
68 The overall total effective sentence imposed over both indictments is two and a half years' imprisonment.
69 I direct that you serve 16 months' imprisonment before being eligible for parole.
70 I declare that the period that you have already spent in custody on these matters, namely 253 days not including today, be reckoned as a period of imprisonment already served under this sentence and is to be deducted administratively.
71 For the purpose of s.6AAA of the Sentencing Act 1991, but for your pleas of guilty the overall total effective sentence that would have been imposed over both indictments is a term of imprisonment of three and a half years, with a non-parole period of two and a half years.
72 At the plea hearing the Crown sought disposal and forfeiture orders which were not opposed and I have made those orders today.
73 At the plea hearing the Crown also sought an order for the taking of a forensic sample of a scraping from the mouth and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, your prior convictions are such as to warrant the making of the order, the order is not opposed and the making of the order is in the public interest.
74 I must inform you, Mr Barahuee, that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the Police Force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Barahuee?
75 PRISONER: Yes.
76 HIS HONOUR: Your conviction for theft of a motor vehicle has enlivened s.89(4) of the Sentencing Act, and pursuant to that section I further order that any driver's licence you hold is cancelled and that you are disqualified from obtaining a driver's licence for a period of 24 months, effective from today.
77 Are there any other matters from either counsel?
78 MS COGHLAN: No, Your Honour.
79 MR NIBBS: No, Your Honour.
80 HIS HONOUR: Mr Barahuee, you are really at a crossroad and that can often be said. I formed the impression that you are not an unintelligent man. You've got good health, you've got a capacity to present yourself well, there's absolutely no reason at all why you should not, if you are prepared to, apply yourself to working with your brother on your ultimate release, maintain your interest in cars in a legitimate way and you will be able to establish yourself and develop a good lifestyle here in Australia.
81 You have not started off in a particularly good way. The record that is seen at this stage is one familiar to all of us in these courts, one that indicates the high probability that it will continue, and continue with a lifestyle that ultimately means you will spend most of your time in gaol, if you maintain the same attitude that you have until now. That is what the future holds for you unless you are prepared to really apply yourself to change your life. You are still a young man, you have a lot ahead of you and you have a great capacity to do well. But if you choose the life that you have currently taken, you will spend most of the rest of your life in gaol. We see it all the time. So you need to reflect on that.
82 Very well, ten o'clock tomorrow.
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