Director of Public Prosecutions v Biniamen
[2015] VCC 1645
•17 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01788
CR-14-01789
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SANDIE BINIAMEN |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 November 2015 | |
DATE OF SENTENCE: | 17 November 2015 | |
CASE MAY BE CITED AS: | DPP v Biniamen | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1645 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: One charge of attempted armed robbery; four charges of armed robbery; and two charges of handling stolen goods – defendant was 18 years old and played the main role in attempted armed robbery and armed robberies by holding a firearm and pointing it at victims – total effective sentence of 6 years 9 months' imprisonment, with non-parole period of 3 years and 5 months. Fine of $1,000 on each charge of handling stolen goods.
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G Coghlan | Solicitor for Office Public Prosecutions |
| For the Accused | Mr A Lewin | Turnbull Lawyers |
HER HONOUR:
1 Sandie Biniamen, you have pleaded guilty to one charge of attempted armed robbery which carries a maximum penalty of 20 years' imprisonment; four charges of armed robbery, each of which carries a maximum penalty of 25 years' imprisonment; and two charges of handling stolen goods, each of which carries a maximum penalty of 15 years' imprisonment.
2 The circumstances of your offending are outlined in the Summary of Prosecution Opening (Exhibit “A”). All of your offending was committed in a period of less than three months between 23 August 2013 and 14 November 2013. You played the lead role in a group of young men who committed the attempted armed robbery and four armed robberies in that, on each of the occasions of offending, you were armed with a double-barrelled shortened shotgun, which you either pointed at victims or used to terrify victims into complying with your demands to get down and lie on the floor or to give you access to where money was being stored. During the offending on Charges 6 and 7, one of your co-offenders also carried a knife.
3 Your offending was facilitated by the use of a stolen motor vehicle (the subject of Charge 3, handling stolen goods) and stolen registration plates (the subject of Charge 4, handling stolen goods). The firearm which you used in the offending, also, was stolen.
4 In the course of your offending, you and your co-offenders disguised yourselves by wearing hooded clothing or other items covering your face, as well as gloves. You and your co-offenders attended a Coles supermarket and purchased three packets of rubber gloves, an 8 inch Wiltshire cooking knife and a white pillow case shortly before the last armed robbery committed by you (Charge 7).
5 A total amount of $56,412.10 was stolen in the armed robberies.
6 Shortly after the commission of the last armed robbery by you at the Club Italia Sporting Club (Charge 7), you were intercepted by the police whilst you were in your Audi vehicle. In that vehicle, police found a pillow case containing $41,800 cash stolen from Club Italia, four black gloves and various items of clothing which you had worn whilst committing the offences. On the opposite side of the road to where your vehicle was intercepted, was the stolen Toyota Aurion vehicle which had been used in your offending. In it, police found the shotgun (unloaded) which had been used by you in committing the attempted armed robbery and the four armed robberies. Also, they found a black handled Wiltshire kitchen knife and plastic Wiltshire cook’s knife, various other items of clothing worn by you and your co-offenders whilst committing the offences, and a quantity of white plastic bin liner-bags and Ansell glove packaging.
7 You were arrested by police and interviewed early on the morning of 15 November 2013. You were largely uncooperative with police. You were evasive in many of your answers or gave “no comment” responses. You made limited admissions in relation to having been at the Club Italia Sporting Club earlier on the evening of the armed robbery and stated that, later, you disappeared from the group with whom you were mixing to get ready to do an armed robbery. You admitted returning to the club, but claimed that you could not remember what happened when you got there, but recalled that you departed from the club in the grey Toyota Aurion and went to your car where you were arrested. Later, you seemed to acknowledge that you had committed an armed robbery at Club Italia, but were unable to explain your reasons for doing so, save for claiming that you had been suffering some form of depression over six or seven months. However, you claimed that you could not remember what role you had played.
8 You gave no assistance to police concerning any of your co-offenders or the items which were found in the cars. You claimed not to know that the Toyota Aurion vehicle was stolen or to whom it belonged, or how it came to be in your possession. In relation to the other armed robberies and the attempted armed robberies, you either told a lie claiming that you knew nothing about them, or gave “no comment” answers to police questions.
9 After being charged by police, you conducted a contested committal hearing on the issue of identity, during which a number of your victims were subjected to cross-examination. The prosecution were put to the time, trouble and expense of investigating all of your criminal conduct and preparing the matter to go to trial. You were committed for trial, but, ultimately, pleaded guilty at a further final directions hearing on 5 August 2015.
10 In a plea on your behalf by Mr Lewin, the Court was told that you were aged eighteen years at the time of commission of the offences and are now twenty years old. You were born on 1 June 1995. You come before the Court with no prior criminal history. You were born in Turkey and are the second youngest of seven children. You and your family suffered displacement due to the border conflict with Iraq and migrated to seek refuge in Australia when you were 2½ years old. Your parents and all of your siblings are productive, law abiding citizens. Mr Lewin commented that there is a complete absence of explanation for your offending conduct. You are not an abuser of substances; you were not in a situation of privation and come from a loving, stable family. Your parents and two of your older brothers were in Court to support you. Five character references were tendered on your behalf (Exhibit “2”) testifying that you are regarded as a respectable, family-oriented person, who is religious and for whom this offending is out of character.
11 You attended Kolbe Catholic College in Craigieburn, but were not academically inclined. You apparently did not pass Year 11 and then transferred to Craigieburn Secondary School, but left partway through Year 11. Your offending began only about one month after you ceased attending school.
12 Tendered as Exhibit “C” was a Victim Impact Statement from Donna Warlock, the store attendant on duty at the time of commission of Charge 2. She describes the horror of the gun being so close to her face and being powerless to do anything about it. Two years later, she is still unable to return to work because of Post-Traumatic Stress Disorder, anxiety and depressive symptoms, which are described in an attached psychological report as being quite severe and requiring her to have contact with her psychologist on two to four occasions per week. The material reveals that she re-lives the trauma of what you did, is very jumpy, cannot sleep and does not go out and socialise anymore. She is only two years older than you and states, “I just want to be young and enjoy my life like I once did”.
13 Tendered as Exhibit “D” is a Victim Impact Statement made by one of your victims on Charge 5, Susil Fernando, dated 7 September 2015. Two years after your offending, she still thinks of the incident every time she goes to work at night and states that, as long as she continues to work in this industry, your offending will continue to affect her emotionally and psychologically.
14 Two of your victims on Charge 6 made Victim Impact Statements which were tendered as Exhibit “E”. Billie-Jo Hawthorne, Assistant Manager at the Vale Hotel in Mulgrave, in her statement dated 10 June 2014, described suffering nightmares and being anxious and fearful. She got to the point of being suicidal and self-harming and, at the time of making her statement, was still regularly seeing a psychologist and suffering financial loss through being unable to work. She described suffering ongoing lack of confidence and self-esteem, feeling helpless, angry and struggling with fear every day.
15 Soulla Dionysiou was a patron at the Vale Hotel in Mulgrave. In her Victim Impact Statement made on 25 June 2014, she describes fearing to go out at night to restaurants or pubs and having become socially withdrawn, feeling trapped and housebound and suffering from stress, sleep difficulties and anxiety. She states that your crime has impacted upon her feeling of safety, her ability to work and her financial well-being.
16 Tendered as Exhibit “F” were statements from two of your victims on Charge 7. George Camilleri, who was working as a cashier at Club Italia, describes losing his capacity to enjoy life because he feels so angry and fearful, has trouble concentrating and cannot sleep. He has been treated by his doctor for depression and was still seeing a counsellor at the time of making his Victim Impact Statement and still experiencing an inability to go out and socialise, as he did before your offending.
17 Nikola Milanovic, who was also working at Club Italia, in her Victim Impact Statement made on 14 June 2014, also describes suffering sleeplessness, flashbacks from seeing the gun pointed at her head and feeling constantly stressed.
18 The Victim Impact Statements to which I have referred are from only a relatively small portion of your victims. With the exception of Charge 1, where there was one victim, all other offences had multiple victims who were either staff or patrons at the venue in question, and who were made to lie on the floor as you shouted directions, while pointing the gun. In the wake of your appalling criminal behaviour, you have left a host of traumatised people with fractured lives. These people were either just doing their job or out enjoying themselves for the evening. All of the consequences mentioned in the Victim Impact Statements are understandable and foreseeable consequences of your violent, thuggish behaviour.
19 Your counsel stated that the gun was unloaded, but this was not known to your victims. Your clear intention was to terrify them into submission and you succeeded in doing so.
20 These are very serious offences. They include a number of aggravating factors. They were obviously pre-meditated to some significant degree. They were committed in suburbs of Melbourne which were considerable distances apart,[1] so that, on their face, the crimes would appear to be unconnected and, hence, the perpetrators would be more difficult to identify. Your co-offenders on Charges 1, 2 and 5 have still not been detected. You used the gun which had been stolen at some earlier time, and the stolen car, to which stolen number plates had been affixed. You personally had checked out the gaming area of Club Italia a few hours prior to the commission of the armed robbery. You were with your co-offenders at shopping centres prior to the commission of Charges 6 and 7 when items were purchased in preparation for those armed robberies. On all occasions, you used disguises to avoid detection, namely, hooded tops, and items wrapped around your face to prevent recognition, as well as gloves to avoid leaving fingerprints. You succeeded in stealing tens of thousands of dollars in a total of $56,412.
[1] Reservoir (Charge 1), Campbellfield (Charge 2), Point Cook (Charge 5), Mulgrave (Charge 6), and Sunshine
North (Charge 7)
21 In sentencing you for these serious crimes, the Court must denounce your conduct and place emphasis on general deterrence. Your repeated offending also calls for emphasis on specific deterrence, and just punishment must be imposed.
22 These sentencing considerations must be weighed against the fact that you are a youthful offender and a consideration of your prospects of rehabilitation. The principle of totality must be borne in mind in order that an overall just sentence is imposed, rather than one which would be crushing, particularly having regard to your youth.
23 The identity of your co-offenders on Charges 1, 2, 4 and 5 is unknown. Mr Lewin urged the Court to consider parity in relation to Charges 6 and 7. I am told that your co-offenders on these charges were aged 16 and 17 years respectively at the time of offending and were dealt with in the Children’s Court by each being placed on a Youth Supervision Order for a period of nine months. It is unclear, but each of those offenders may have had one prior appearance in the Children’s Court jurisdiction. You were two years older than your co-accused, Ahmed al-Hamza, and one year older than your co-accused, Jesse Marrogi. You had turned 18 years of age on 1 June 2013, not quite two months prior to the commission of Charge 1, and five and a half months prior to the commission of Charge 7.
24 Whilst it is true that like penalties generally should be applied for like offending, the issue of parity becomes difficult when your co-accused are dealt with in an entirely different jurisdiction, which has special sentencing considerations which apply to offenders because they are children. When passing sentence, the Children’s Court must have regard to a number of matters which differ significantly from the matters to which I must have regard in the Sentencing Act 1991. Moreover, the factual foundation upon which your co-offenders were sentenced in the Children’s Court is not something to which I am privy. The fact of the matter is that you committed Charges 6 and 7 with children and it would be inappropriate that you should receive more lenient treatment by reason of that fact alone. Moreover, you have pleaded guilty to the three earlier offences, one of attempted armed robbery and two armed robberies, whereas your co-offenders were not charged with such offences. By the time you committed Charges 6 and 7, you were an experienced armed robber. All I know about your two co-accused is that they committed these two last offences with you.
25 I am satisfied in relation to all offences that you have held a lead role by reason of being armed with the gun. Moreover, the Audi vehicle, which was registered in your name, was used in order to meet up with your co-offenders, and to travel to supermarkets in order to purchase items used in committing Charges 6 and 7. Your greater experience in having committed the two earlier armed robberies and the attempted armed robbery, coupled with the lead role that you played in all of the offences, in my view, means that parity can have little role to play in this sentencing exercise.
26 Further, your co-offenders resolved their matters into pleas without any committal or cross-examination of witnesses. They were respectively aged 18 and 17 at the time of sentence. You are now 20 years old, and that is because yours have been relatively late pleas of guilty. As you are a youthful offender that generally results in an emphasis in sentencing upon your rehabilitation. Your youth is an important consideration, but, in my view, the number and gravity of your offences are such that the emphasis upon rehabilitation can, at best, partially displace the emphasis which must be placed on general deterrence and denunciation of your conduct. Moreover, courts must protect the community from such repeated, terrifying behaviour which strikes at the heart of every citizen’s entitlement to feel safe while at work or out enjoying leisure activities. There is an irony in the fact that your parents brought you and the rest of your family to this country in order to escape displacement in Turkey so that you could feel safe, yet you have been responsible for countless members of our community feeling unsafe and traumatised.
27 Tendered at the plea hearing was a report from Dr Aaron Cunningham, forensic psychologist, dated 6 November 2015 (Exhibit “1”). Somewhat at odds with the character references which have been tendered, which painted you as a respectful and well-behaved person, you gave a history to Dr Cunningham that you were constantly in trouble at school and had been expelled. You claimed that you had been sexually abused for a period of six months when you were five years old, but had not disclosed this to anyone and had become depressed and angry and frustrated and claimed that this contributed to your offending because you wanted to be in control and regain power. If this was so, you certainly kept it well-hidden from your family and the authors of the character references. They variously describe you as respectable and polite, a care-free and fun-loving character, a kind man with a good character, someone who is dedicated to his religion, someone who had always been generous, loyal and ambitious and someone who strived to be the best at whatever you did and were optimistic.
28 It is difficult, indeed, to reconcile these descriptions with the description which you have given to Dr Cunningham. Dr Cunningham found no evidence of any mental disorder and, save for reciting the history you gave to him about sexual abuse and anger and frustration, he did not opine that it was connected with your offending. He assessed your full scale IQ as being 74, within a range of 70-79, that is, 96 per cent of your age peers would do better than you intellectually. He described your overall thinking and reasoning skills as being in the borderline range. He stated that this intellectual level would likely have contributed to your difficulty at school and led to increased vulnerability to the influence of others. However, there is simply no material which would enable me to conclude, on the balance of probabilities, that your offending behaviour occurred because you were somehow under the influence of or subject to the direction of another person or persons. The evidence is to the contrary. You seem to be the one who has the lead role in the offending, carrying the firearm, pointing it at victims, and yelling orders to your victims in what was described by one of them in her statement to police as “a big booming voice, a huge voice”.[2]
[2]Statement of Billie-Jo Hawthorne, page 770 of the deposition
29 You pointed the gun in the faces of victims. You ordered staff and patrons to lie on the floor and made demands of staff to give you access to cash at the various premises. Your behaviour was brazen and arrogant. You even jumped over a cahier counter at one venue, behaving like a gangster out of a low grade movie. There are many people in our society who have an intelligence level comparable to yours or who have suffered experiences which may make them feel depressed but they do not terrorise innocent people as you did.
30 There are many things which were not explained at all on the plea hearing. These included how an 18 year old, who only recently, had dropped out of school and had apparently held a position as an apprentice carpenter for some two or three weeks prior to being arrested, was driving around in an Audi vehicle which you claimed to own. Also unexplained, is why you would have a mobile phone registered in a false name as you told police.[3] Finally, it is not at all clear how such a young and ostensibly religious and family-oriented man was at large on multiple nights in disparate parts of Melbourne committing these serious offences, whilst living at home with his family.
[3]Answer to Q218 of the defendant’s record of interview
31 It seems to me that you were not under supervision by your family and were leading a self-indulgent existence. I can only assume that you committed these offences because you were greedy for wealth and, possibly, because you were on some sort of immature power trip. In circumstances where you had secure accommodation, a loving and supportive family, the ability to obtain a job, and no evidence of a mental disorder, there is no mitigatory material in relation to the actual offending itself.
32 Mr Lewin, on your behalf, urged the Court to find that you have developed insight into your offending and that you are remorseful. He relied upon you having stated to Dr Cunningham on 4 November 2015 that, “The abuse [you] caused the victims and [your] family hits [you] hard every day” and “That [you] had showed [your] family” and “The victims’ trauma will last them a lifetime”.
In this regard, I have already noted that your pleas of guilty are relatively late ones entered on 5 August this year at a further final directions hearing prior to trial. Also, as I have previously commented, you put a number of victims through the trauma of giving cross-examination at committal and police had to devote enormous amounts of time to investigating your offending and taking statements from many, many witnesses. It is possible that, having served some eight months in custody from the time of your arrest on 15 November 2013 until you made a successful bail application on 17 July 2014, you had time for reflection on your life and have developed some insight into the impact of your offending, but it seems that any remorse is relatively recent. Indeed, none of the references tendered on your behalf made any mention that you had reflected upon the plight of your victims but, rather, comment on the impact that being on remand had on you, and your complaint about what you described as the violent apprehension of yourself and your co-accused by the Special Operations Group. One of your referees, Franco Mazzotta, stated, ”I know deeply that he is very remorseful”. However, as he also stated, “it is unfortunate that he was in the wrong place at the wrong time”, one must wonder whether he has any real appreciation of the nature and extent of your offending.
33 The impression I have is that you are primarily sorry for the situation in which you have put yourself and the shame that you have brought on your family. However, it would appear that there is some small degree of remorse that is developing and, quite apart from that, you are entitled to credit for pleading guilty to the offences albeit at a relatively late stage, facilitating the course of justice, and saving the cost of a trial.
34 Mr Lewin submitted that your prospects of rehabilitation should be good as you have the support of your family and stable accommodation. Also, you have an offer of employment from one of your referees, Stivin Allos, who gave you work as an apprentice electrician after you were released from custody on bail and before I remanded you in custody again after the plea hearing. In addition, Mr Lewin noted that you have the support of your church. However, all of these factors which are described by Dr Cunningham as being “protective”, in that they may reduce your risk of re-offending, were present and available to you prior to your offending.
35 It seems to me that the primary factor in your favour is your young age. Prior to this three months of serious offending, you had had no contact with the criminal justice system. As I have mentioned, the law does recognise that, where an offender is as young as you, usually there should be emphasis upon rehabilitation in the sentencing process. There are some signs that bode well for your rehabilitation. You complied with your bail conditions for 16 months. They were relatively onerous and included daily reporting to police and a curfew. During this time, you completed a 12 month on-line building course at a TAFE. Also, according to the reference from Stivin Allos, you worked hard as an apprentice in his electrical business. Further, as I have said, you appear to be developing some remorse concerning the suffering that you have caused your victims.
36 Thus, although you had the presence of a supportive family and employment at the time of the commission of these offences, it is likely that the period of approximately eight months that you spent in adult custody before being granted bail on 17 July 2014 has caused you to engage in some serious reflection about the way you were living your life. It may be that Mr Allos is correct when he states that you have learned the value of freedom and the simple luxuries of life, which you will no longer take for granted. Certainly, a number of the authors of the references which were tendered commented on your more subdued presentation after being released from custody.
37 However, I am still somewhat guarded about your prospects of rehabilitation, given that the reasons behind your very serious offending remains unexplained. Effective rehabilitation requires not only acknowledgement of your offending, which you have done, but also insight into the reasons for it and a preparedness to do something about those factors.
38 In all the circumstances, I consider that emphasis should be given to rehabilitation by moderating the amount of cumulation and fixing a shorter than usual non-parole period, so that you will have maximum support and supervision when you return to the community. I am mindful that it is undesirable for a person of your age to spent an extended time in adult custody. However, the gravity of the offending overall means that some years will need to be spent in that way.
39 Would you stand up please.
40 On Charge 1, attempted armed robbery, you are convicted and sentenced to be imprisoned for a period of three years.
41 On Charge 2, armed robbery, you are convicted and sentenced to be imprisoned for a period of four years.
42 On Charge 3, handling stolen goods, you are convicted and fined $1,000.
43 On Charge 4, handling stolen goods, you are convicted and fined $1,000.
44 On Charge 5, armed robbery, you are convicted and sentenced to be imprisoned for a period of four years.
45 On Charge 6, armed robbery, you are convicted and sentenced to be imprisoned for a period of four years.
46 On Charge 7, armed robbery, you are convicted and sentenced to be imprisoned for a period of four years.
47 The base sentence is that of four years imposed on Charge 2. I direct that six months of the sentence imposed on Charge 1 and nine months of each of the sentences imposed on Charges 5, 6 and 7 be served cumulatively upon the sentence imposed on Charge 2 and upon each other.
48 The total effective sentence imposed this day is thus six years and nine months’ imprisonment. I direct that you serve a period of three years and five months’ imprisonment before becoming eligible for parole. I declare a period of 252 days pre-sentence detention as time to be reckoned as already served under the sentence imposed this day.
49 Pursuant to s6AAA Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 9 years with a non-parole period of 6 years.
0
0