Director of Public Prosecutions v Bazouni
[2014] VCC 2093
•8 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01439
CR-14-01440
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BILLY BAZOUNI |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 October & 8 December 2014 | |
DATE OF SENTENCE: | 8 December 2014 | |
CASE MAY BE CITED AS: | DPP v Bazouni | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2093 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – pleas of guilty to aggravated burglary, armed robbery, theft and violence offences arising from two incidents – serious offending – youthful offender with very bad criminal history – offending whilst on ICO, bail and youth parole – unsuitability for YJC detention – TES 3½ years’ imprisonment with minimum of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Hogan | Office of Public Prosecutions |
| For the Offender | Mr A Lewin | Turnbull Lawyers |
HIS HONOUR:
1 Billy Bazouni, you have pleaded guilty to five offences arising from two separate incidents in April this year. The first involves aggravated burglary (charge 1), theft (charge 2) and common assault (charge 3) with respective maximums of 25, 10 and 5 years’ imprisonment. The second involves armed robbery (charge 4) and negligently causing serious injury (charge 5), with respective maximums of 25 and 10 years’ imprisonment.
2 Your offending stands as a potent example of the terrible effects of addiction to methylamphetamine, commonly known as ice. An agreed prosecution opening read in court provides the full circumstances. A summary will suffice.
First incident 22 April 2014
3 The first incident occurred on 22 April 2014, when at about 10am you climbed through an unlocked window of premises occupied by a 27 year old male who was unknown to you. You entered with the intent to assault whilst in possession of an offensive weapon, namely a screwdriver (charge 1). You were affected by ice. You were wearing black gloves but your face was uncovered. You confronted the occupant whilst he was asleep and demanded drugs and money. When the startled occupant sat up in his bed you forced the screwdriver into his neck (part of charge 3). The victim grabbed the weapon to prevent you from stabbing him and you told him that if he did that again you would stab him. You then marched him out of the bedroom with the screwdriver placed in the middle of his back (also part of charge 3), demanding that he produce drugs and money. The victim told you he did not know what you were talking about and that you had the wrong house. There is no evidence to suggest otherwise. The victim said you were erratic and unpredictable and appeared desperate for drugs. You looked in various places and then forced the victim back to the bedroom where you stole his laptop and mobile phone (charge 2). Before leaving, you told him that he could have his laptop back if he gave you money and drugs and then threatened that you would return with another person. The victim reported the matter to police and later positively identified you from a photo board.
4 I have received a Victim Impact Statement declared on 8 October 2014. Thankfully, the victim was not physically injured, but he underwent significant psychological trauma. Understandably, he was terrified that you were going to stab him with the screwdriver. He suffered sleeplessness for a week and was extremely anxious about another attack. A month later he moved out of his premises. The loss of his laptop resulted in him falling behind in his university work. The memory of the incident continues to be a stress in his life, although it is pleasing to note that things are improving for him.
Second incident 28 April 2014
5 The second incident occurred 6 days later, on 28 April 2014, in the early hours of the morning. You had been smoking a lot of ice with the 24 year old victim, whom you had met a week earlier. The victim was driving you around in his sister’s car. You were with associates who were purchasing ice. For reasons that are unclear, but probably because of paranoia provoked by use of ice, you suddenly attacked the victim by repeatedly punching him to the head with a clenched fist and struggling with him to get the keys to his car. Then you placed a knife to the victim’s throat and asked him if he wanted to be stabbed. In trying to wrestle the weapon from you, the victim suffered severe lacerations to his hands (charge 5). You punched him again to the head and, in defending himself; he stabbed you in the torso region. Undeterred, you continued to punch and wrestle with him until he handed over the keys to the car, which you then stole. The violence and use of the knife to get the keys and steal the car all forms part of charge 4, armed robbery of the vehicle.
6 That victim declined to make an impact statement. However, it is clear your offending caused significant physical and psychological trauma for him. He said that when you held the knife to his throat he thought he was going to die. He underwent surgery on both his hands, he suffered a lot of pain, he was hospitalised for two days and over two months he required significant outpatient rehabilitation until he was declared fit to return to light work.
7 You should feel a great deal of shame and remorse for what you did to each of the victims of your offending.
Police investigation and court process
8 You were arrested on 5 May 2014. When interviewed by police you gave predominantly “no comment” answers. You were charged and bail was refused. Although you were only 18, you were remanded in adult custody and have remained there to the present.[1] There is now 217 days pre-sentence detention up to, but not including, today.
[1]According to counsel, the law prevented remand in a Youth Justice Centre.
9 You entered early pleas at committal mention on 13 August last.
Background and personal circumstances
10 Your background and personal circumstances are set out in a psychological report of David Ball, dated 7 October, and in counsel’s helpful submission.
11 You are now 19½. You offended when you were 18, almost 19. You were born in Melbourne of a Lebanese father and Vietnamese mother. You have a 38 year old half-brother, who is in prison, and a 15 year old sister who lives with your mother. Your father was a violent alcoholic who physically abused you. Your parents separated when you were 12 - 14. Although you had a problematic relationship with your father, you went to live with him, but there was ongoing conflict and unstable accommodation. You went back to your mother for a short time in 2011 but ultimately spent a good deal of your adolescence in youth justice detention or “couch surfing” with friends or associates.
12 You were racially bullied at school and expelled in Year 7 following an assault. Essentially you have been unemployed since that time, other than for some occasional plastering and labouring and a short unsuccessful stint working with your father in his fruit shop.
13 For the past 12 months you have had a relationship with a young lady, but that situation has been strained since your incarceration.
14 You have had a serious drug problem since your early teens involving the use of cannabis and ice. Although it must be clear to you that your addiction has ravaged your short life, you told the psychologist that you did not feel the need to participate in any form of rehabilitation for this problem.
15 Regrettably, you have a very bad criminal history for such a young person. Between April 2010, when you were 14, and March 2014, when you were 18, from 10 court appearances you have been found guilty of no less than 91 offences. Leaving aside 10 motor traffic matters, there are 38 offences of dishonesty, including seven of burglary/attempted burglary or entering with intent to steal, and you were convicted of aggravated burglary (person present) in 2011. You have been convicted or found guilty of 10 offences of violence, including intentionally and recklessly causing injury or serious injury. You have been convicted or found guilty of robbery or attempted robbery on two occasions and convicted of armed robbery in 2011.
16 You have twice been granted good behaviour bonds, which you kept; once probation, which you breached; and twice youth supervision orders with drug/alcohol treatment and other programs to minimise offending, which, again, you breached. Between November 2011 and February 2013 you were sentenced on four separate occasions to various periods of detention in a youth justice centre. I have received a pre-sentence report as to your suitability for a Youth Justice Centre Order, dated 6 November (the pre-sentence report). It highlights that whilst in YJC detention, there have been significant management issues concerning your conduct, as follows:
“Mr Bazouni was involved in multiple incidents involving unprovoked assaults on co-clients, assaults on staff members, threats towards staff and their safety and he was engaging in dangerous behaviour. Departmental files further note Mr Bazouni was generally defiant, would refuse to follow staff direction, he made false allegations about staff and was derogatory towards female workers, he presented with bullying behaviours and was unwilling to engage with support services offered to him while in custody. Mr Bazouni was subject to a number of behavioural management plans due to his poor and violent behaviour.”
17 On your release at different times, you breached two Youth Parole Orders or failed to positively engage with therapeutic supports provided to you whilst on parole. Between 2010 and 2013, you were referred to the Youth Support and Advocacy Service, to address substance use issues; to the Adolescent Forensic Health Service, to address your emotional regulation and anger management problems; and to the “Be Real About Violence” Program, a specific anger management course. Although you initially engaged with the first two programs, that commitment deteriorated and your engagement ceased completely. You were assessed as unsuitable for the third program given your high resistance to co-operation. During this time, Youth Justice also made attempts to support your re-engagement with education and employment. In 2011, appointments were made with Gordon TAFE, however you refused to attend as required. In 2012, you were enrolled in a bricklaying course through NMIT. You were reported as displaying natural skills to develop into a bricklayer, but you dropped out of the course after experiencing issues with other students and supervisors while on work placements. In 2013, Youth Justice supported you to engage in a six week warehousing course but you did not complete this program.
18 You were last released on youth parole on 8 July 2013, which expired on 24 August this year. This offending breached that order.
19 Your counsel said today that you take issue with some of the matters outlined in the pre-sentence report, for instance as to alleged derogatory comments to female staff, but not such as to justify calling the author of the report for cross-examination. Generally, you concede your history of poor engagement with authorities and programs, both in and out of YJC detention.
20 On 6 March 2014, you were convicted of recklessly causing injury, assaulting police, possessing a controlled weapon, theft and other charges. This was your first appearance in the Magistrates’ Court. You were released on a Community Correction Order for 18 months with assessment and treatment for drugs, alcohol and mental health; programs for offending behaviour and judicial monitoring. Hence, you luckily avoided further incarceration but within six weeks you had committed these offences and breached that order. You are going to be breached on the CCO for alleged administrative failings and for this offending.
21 At the time of offending, you were also on bail having been charged with theft of a car, possessing a prohibited weapon and dishonesty offences. I am told these matters are to be dealt with this Wednesday in the Magistrates Court.
22 When you were examined by the psychologist on 30 September last, you presented as functionally illiterate and innumerate and were unable to complete any of the personality inventories presented to you. Your IQ was estimated by him to be in the borderline range, although he said you have the capacity to gain literacy and numeracy, and the pre-sentence report indicates you do not present as having an intellectual disability and have no history with Disability Client Services. The psychologist said you expressed little insight into your behaviour, its affects upon others or the gravity of your offending, although, by contrast, the author of the pre-sentence report said you did articulate some insight and victim empathy. You impressed the psychologist as having limited capacity for good judgment and significant impairment in your capacity to plan and execute positive and self-sustaining behaviour.
23 The psychologist’s opinion is that you are not suffering from any mental illness. However, he discerns significant antisocial features in your personality, associated with immaturity, anger and resentment, all of which is compromised by your association with negative peers and drug addiction. You were diagnosed as suffering from a Stimulant Use Disorder (in early remission) and an Antisocial Personality Disorder. Your rehabilitation and management in the community present a number of challenges and depend greatly upon you engaging meaningfully in treatment programs and complying with appropriately prescribed medication. The psychologist does not consider adult prison to be a “helpful or appropriate environment” for your rehabilitation. He states that the antisocial, oppositional and defiant features of your personality will place you at odds with other inmates and prison staff.
Suitability for detention in a Youth Justice Centre?
24 In these vexed circumstances, contrary to the prosecution submission, I accepted your counsel’s suggestion to have you assessed as to suitability for detention in a youth justice centre. Such a disposition may be imposed by the court, up to a maximum of 3 years detention, if there are “reasonable prospects” for your rehabilitation, or you are “particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison”.[2] I accept the parties submission that the court only need be satisfied that one of the four criteria be present to justify ordering YJC detention, but, of course, the total picture must be considered. In determining whether to make such an order, I must also have regard to the nature of your offending and to your age, character and past history.[3]
[2]Section 32(1) Sentencing Act 1991.
[3]Section 32(2).
25 The pre-sentence report unequivocally states that you are unsuitable for YJC detention. I am not bound to accept this conclusion, but I am satisfied that significant consideration and careful research by the responsible and informed authority underpins the report as to this important question.
26 I agree with the conclusion that you have low prospects for rehabilitation within the Youth Justice framework, and more generally, given what is described as your “…continued re-offending, failure to address [your] presenting risk/need issues including substance use, anger management, offending behaviour and poor attitude through engagement with therapeutic supports”. Indeed, the psychologist also considers you have a “quite poor” prognosis in this regard. While you have expressed your desire to go to Malmsbury Youth Justice Centre and engage in programs to address your offending behaviour, the genuineness of your ambition is rightly doubted by Youth Justice, given your previous failure to act consistently with such ambition, whether in or out of detention. Moreover, your prospects of rehabilitation have been significantly diminished by your offending a mere six weeks after your release on the CCO and whilst on bail and youth parole. I do not hold the pending matters against you in any way.
27 As to the other considerations, whilst you do present with a level of immaturity, you have not been assessed as a “particularly impressionable” young man who is likely to be subject to undesirable influences in adult prison. Of course, young offenders are always at such risk in a prison. Special steps need to be taken by authorities to isolate them from such undesirable and corrosive influences and to provide meaningful programs to them. It is reported that staff at Malmsbury “would hold significant concerns for the safety of other vulnerable youth offenders” if you were to return to youth justice centre detention, given your history of violent offending and behaviour issues. Whilst I must have regard to your likely position in an adult prison and not just youth detention, I consider it is significant that your history and behaviour with Youth Justice does not indicate you are a vulnerable young man, rather, as the pre-sentence report states, “more someone that could potentially negatively impact on other young offenders”.
28 You have been in an adult custodial setting now for approximately seven months, also a matter of some importance. The psychologist’s expectation that the oppositional features of your personality would likely place you at odds with other inmates and prison staff has come to pass. Whilst on remand, you have been involved in two separate alleged assaults on other prisoners, which led to your placement in management units. Presently, you are in such a unit, regrettably in lockdown 22 hours per day. You claim you were defending yourself on each occasion, but you also told the psychologist that in prison you had not been subject to any bullying or harassment by fellow inmates or prison staff. I make no finding against you as to the merits of these allegations, but they were serious enough for remedial action to be taken against you and I must take account the fact that a good deal of your remand time has been spent in management units where the chance for rehabilitation must be reduced. On the positive side, whilst on remand you have obtained two certificates in cleaning and kitchen operations; you have completed a voluntary 12 hour substance use and emotional management program; and provided two negative urine screens (in June and September last). And you have had occasional phone contact with your parents and siblings, although no visits to date from them or your partner.
29 I do consider you are immature and that, given your background and personality, you would be likely to be subject to undesirable influences in adult prison. However, in all the circumstances, I am satisfied that you are not suitable for YJC detention. Particularly, this is because you have low prospects of rehabilitation; you would not be a particularly impressionable young person in adult prison; the likelihood of you benefitting from detention in a youth justice environment is, given your past performance in and out of Youth Justice, very low indeed; and, although this is not a definitive aspect, your presence in such a setting would negatively impact on other vulnerable youth offenders there. My conclusion in this regard also takes account of your serious violent offending, your very bad criminal history, your failure to take advantage of rehabilitative programs offered to you in the past and the aggravating feature that you committed the offences within a very short time of your release on the CCO and whilst on bail and youth parole. I have also had regard to the fact that you have now been in the adult system for approximately seven months, and, although you have made some progress, it has not been plain sailing for you. I do intend to impose terms of imprisonment for your offending.
Mitigating circumstances.
30 Nevertheless, there are a number of mitigating circumstances in your favour. You are the product of a dysfunctional and dislocated family background, as I have explained. Whilst not strictly mitigating, your short life has been ravaged by the scourge of drug addiction, and, as a consequence, your schooling and employment opportunities have been severely curtailed. Your opportunities in life have been minimised by your intellectual deficits and the personality and behavioural difficulties and conditions identified by the psychologist. I note, however, that no reliance upon the Verdins principles was mounted on your behalf. However, I accept your submission, that the absence of an underlying psychiatric condition means that your problems are amenable to treatment.
31 Your pleas were made at the earliest time, thus saving considerable court time, inconvenience and expense. That utilitarian benefit has served the ends of justice, for which there should be a significant discount in penalty. I am also satisfied that your pleas are associated with remorse and some limited degree of insight into your offending behaviour. This is the first time you have been incarcerated in an adult prison, a not insignificant matter and whilst there to date you have demonstrated some rehabilitative tendencies.
32 You have also agreed to a compensation order for the first victim of $1,478. There is no evidence as to what injury you may have suffered when stabbed by the second victim, but no doubt that was a salutary experience for you.
33 Generally speaking, as the Mills principle dictates, when dealing with a youthful offender, rehabilitation is far more important than general deterrence. This is because punishment may, in fact, lead to further offending, in the sense that it is desirable to avoid placing young offenders in a prison context with hardened criminals who may seek to corrupt them. Where appropriate, the preferable course is for individualised treatment focussing on rehabilitation; and such an approach benefits the community as well as the offender. However, these principles are general propositions which are not of universal or automatic application. As is often said, every case must turn on its own facts and circumstances. Put another way, youth cannot in all cases keep an offender from jail.[4]
[4]See the general discussion as to sentencing principles concerning youth set out in Azzopardi & Ors v R [2011] VSCA 372, [34-44], per Redlich JA, with whom Coghlan and Macaulay AJJA agreed.
34 In Azzopardi,[5] following a review of important cases dealing with sentencing principles concerning youth, Redlich JA observed:
“The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth but only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigating consideration of youth be viewed as all but extinguished.”[6]
[5]ibid [34-44]
[6]ibid [44], citations omitted.
35 Whilst yours is very serious offending and you have a very bad criminal history, I am not satisfied that the mitigating consideration of youth should be treated as all but extinguished. Your youth is still an important consideration in this case, notwithstanding your criminal background and difficult personal circumstances. All hope is not lost, but much depends on your willingness to personally commit to a better life for yourself and those around you.
Other sentencing considerations
36 There are, of course, other important sentencing considerations. The offences of unprovoked aggravated burglary and armed robbery are very serious offences, as reflected in the maximum sentences to which I must have regard, associated as they are, with the infliction of violence upon the victim in each case. However, I do take account in your favour that charge 5 involves negligent conduct, not intentional or reckless violence. There has been serious victim impact for each of the victims. It is no excuse that you were drug-affected. Your offending occurred on two separate occasions, although it was only days apart.
37 The sentencing objectives of general and specific deterrence, denunciation, just punishment and protection of the community are all very important considerations. You need to understand that if you continue to offend in this way in the future, it is certain that you will be sentenced to ever longer and longer periods of imprisonment compared with those I intend to impose.
38 However, as I have said, your youth also remains an important consideration. The parties agree, and so do I, that because of that aspect it is appropriate to impose relatively light sentences with a lengthy parole period so as to give you some realistic expectation, and one last chance, of turning your life around both within prison and beyond. Certainly, whilst in prison, as recommended by the psychologist, you need to be provided with the advantage of intensive and structured relapse prevention treatment, ongoing educational opportunities, vocational assessment and training, psychological counselling and general treatment aimed at mitigating the antisocial features of your personality. But you must play an active role in all that. Putting it in blunt terms, it is time that you stopped thinking that you cannot improve your situation. You need to personally commit to and engage in any treatment programs offered to you. If you do not do that, you will have a miserable future ahead.
39 I must also have regard to current sentencing practices, the principles of proportionality and totality and the need to avoid imposing a crushing sentence upon such a young person, such as you are. I have done all that.
40 Finally, on behalf of the community, I strongly denounce your offending.
Sentence
41 Mr Bazouni, please stand up. On each charge you will be convicted.
42 On charge 1, you are sentenced to two years’ imprisonment.
43 On charge 2, you are sentenced to nine months’ imprisonment.
44 On charge 3, you are sentenced to six months’ imprisonment.
45 On charge 4, you are sentenced to two years’ imprisonment.
46 On charge 5, you are sentenced to twelve months’ imprisonment.
47 The sentence on charge 1 is the base sentence. I make the following orders for cumulation. Twelve months of the sentence on charge 4; four months of the sentence on charge 5 and two months of the sentence on charge 3 are to be served cumulatively upon the sentence imposed on charge 1 and upon each other. There is no cumulation on charge 2.
48 The total effective sentence is three and a half years’ imprisonment. I fix the period of two years’ imprisonment to be served before which you shall not be eligible for release upon parole.
49 I declare that the period of 217 days pre-sentence detention be reckoned as already served on that sentence and that such declaration be entered in the records of the Court.
50 But for your pleas of guilty, I would have imposed a sentence of five years’ imprisonment with a minimum of three years.
51 On charge 4, I order that all licences held by you are cancelled and that you be disqualified from obtaining another for 2 years.[7]
[7]Section 89(4) Sentencing Act.
Forensic sample, disposal and compensation orders
52 You have agreed to the making of a Forensic Sample Order. I am satisfied that the making of the order is justified given the seriousness of the offending, your criminal history, the order is by consent and its granting is in the public interest. Accordingly, pursuant to s464ZF(2) of the Crimes Act 1958, I order that you provide a scraping from your mouth and/or a blood sample in accordance with sub-division 30A of Part III of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.
53 Notwithstanding your present consent, police may use reasonable force, if necessary, to enable the forensic sample to be taken from you.
54 I will also make the Disposal Order which is agreed to by you.
55 I also order that by consent you pay to Thomas Baker compensation in the sum of $1,478. Please sit down for the moment.
56 I have signed the various orders provided to me by the prosecution and I hand them down. The prosecution will need to add some identifying entries.
57 Thank you to counsel for your assistance. Are there any matters arising as to the mechanics of this sentence and orders I have imposed?
58 COUNSEL: No, your Honour.
59 HIS HONOUR: Mr Bazouni, you need to go with the prison officer now. Thank you. Please remove the offender.
60 OFFENDER: Thank you.
61 [Offender removed.]
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