Director of Public Prosecutions v Dabbagh
[2021] VCC 819
•17 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTION
CR 20-01087
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HADY DABBAGH |
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JUDGE: | HIS HONOUR JUDGE M. BOURKE |
WHERE HELD: | Geelong |
DATE OF HEARING: | |
DATE OF SENTENCE: | 17 June 2021 |
CASE MAY BE CITED AS: | DPP v Dabbagh |
MEDIUM NEUTRAL CITATION: | [2021] VCC 819 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. de Vietri | Office of Public Prosecutions |
For the Accused | Mr A. Pyne | Victoria Legal Aid |
HIS HONOUR:
1Hady Dabbagh, you are to be sentenced for two charges of armed robbery. The maximum sentence for that offence is 25 years imprisonment.
2You pleaded guilty before me on 25 February 2021. When arrested on 1 May 2020 you did not answer police questions. After medical examination, you were found unfit for interview.
3Committal went by hand-up brief on 4 September 2020, after which you entered pleas of guilty.
4You receive the benefit of your early plea of guilty and that level of cooperation in the proceeding. Your plea has facilitated the interests of justice, accepted responsibility and it expresses remorse.
5At your plea hearing which ran on 25 February, 24 March, 12 May and 7 June, Mr de Vietri, for the Crown, tendered a written Crown opening. Mr Pyne for you, tendered the forensic psychiatric report of Dr Leon Turnbull, dated 31 October 2020. On 7 June, he called Rebecca Smith, tenancy officer with McCormack Housing, to give evidence on your behalf.
6Both counsel provided written submissions on sentence.
7I have requested and received community correction order suitability reports by assessing officer, Olga Perifanos, dated 18 March and 7 May 2021. Associated with the second, extended assessment report is the forensic mental health screening report of clinician, Amy Meiklejohn. It is not dated. The screening assessment was made on 17 March 2021.
8The circumstances of your offending are comprehensively set out in the tendered Crown opening, which is Exhibit A. My own summary may therefore be relatively short. It is also informed by matters put on your behalf, not challenged by the Crown. I seek to apply the principles stated in such cases as the R v Storey on finding of fact when sentencing.
9In early 2020, you had recently come to Victoria from New South Wales. You were homeless. During February to early March, you had obtained what might be called emergency accommodation in Bundoora. That had limited tenure and expired on 5 March. You were evicted. It became clear that you were still coming to the property. I accept that you had nowhere else to stay.
10On 14 March, the owner and operator, Emmanuel Fernando, was told that you had been sleeping at the property. Soon after midday, he located you in a storage room at one of the studios. You were, in the words of the Crown opening, “Curled up in the corner of the room with a hot water bottle.”
11He told you to leave and confrontation developed. Fernando spoke of calling the police. You produced a kitchen knife. You threatened to kill him. You demanded money, fifty dollars, saying that you were starving. He produced a $50 note. You asked for his wallet. He refused. You took the $50 and left. This is Charge 1, armed robbery.
12Charge 2, also armed robbery, happened about six weeks later, on 20 April. I find that you were still homeless. You entered a Prahran tobacconist store at about 11.30 am and asked the attendant, Prudhui Reddy, for two packets of cigarettes, at $31.60 each. You attempted to pay with a Commonwealth Bank card which came up declined. There is no alleged offending relating to use and possession of this. Beyond speculation, I can make no finding either favourable or adverse to you. That includes that I do not find, beyond reasonable doubt, that your attempted use of the card was dishonest.
13You leaned across the counter, trying to take the cigarettes. You stated that you had a weapon. You produced a knife, described by Reddy as a small fruit knife. He stepped back and closed access to behind the counter. The Crown opening states that you put the knife back into your pocket, but kept your hand on the pocket. You did not produce the knife again. You jumped over the counter and pushed him. You grabbed the cigarettes and went to leave, jumping back over the counter. Reddy grabbed and ripped your shirt. You punched him to the face and ran out of the store.
14You had been wearing a surgical mask. Given the COVID-19 situation and precautions at the time, I do not find, beyond reasonable doubt, that it was used as a disguise.
15No victim impact statements have been tendered however, it must be presumed the production of a knife particularly would have caused fear. In saying this, I also note this part of Prudhei Reddy's police statement.
“My boss was at the front of the store so I was not too worried.”
16The victim impact of your offences, to the extent it can be gauged, must be taken into account in my sentence of you.
17You were aged 25 at the time of offending and 26 now. You were raised in south-western Sydney in the middle place of five children. Your parents separated when you were in teen age and you had little contact after with your father. He died in 2017.
18You left school after completing Year 10 and have since worked in the construction industry, in security and as a personal trainer. More recently, you managed a health and supplement store. That closed in 2018 and you have not had stable employment after that.
19You have had one serious relationship. It was at the time of managing the store.
20At about the time that relationship ended and you lost that employment, you became homeless. It was also at this time that mental health problems seemed to have emerged. You were admitted twice to hospitals in 2019. On the second occasion, you were self-harming.
21As stated, you came to Victoria in early 2020. You have been in remand since arrest in early May 2020. You speak regularly to a sister on the phone.
22Your criminal record is consistent with the deterioration in your life circumstances, as described, in 2018 to 2019. There are seven New South Wales court appearances, notably most compressed within the period 2019 to February 2020. Six appearances fall within the four month period from late October to February 2020. There are offences of dishonesty and trespass, and drug offences. Four years earlier, on 9 October 2015, you received a suspended sentence of 22 months with conditions of drug and psychological counselling. That was for supplying drugs. You have abused drugs including LSD and MDMA ecstasy. These offences before me are not said to be drug-related. However, psychologist Dr Turnbull expresses some scepticism about the history you gave concerning drug use.
23On 5 December 2019, you were placed on a community corrections order of nine months' duration for offences described in the New South Wales criminal record document as,
“Stalk, slash, intimidate, intend fear, physical et cetera, harm.”
24This is your only prior offence of violence. Prior to this matter, you have not been sentenced or been in custody before. You complied with the 2015 suspended sentence you did not comply with the community corrections order imposed in December 2019. The order was returned to court for breach on 13 February 2020. The community corrections order was revoked and a bench warrant issued. There were also warrants issued for a number of charges of dishonesty and failing to appear. By February 2020, you were in Victoria.
25On 7 June there was some explanation to me of the New South Wales warrants and the process there. It can be said (as in the second extended community corrections order put before me) that you absconded from New South Wales and the consequences of your failure to comply with that community corrections order. However, I also accept that you had been homeless in that State for some time.
26The level or degree of your mental health problems are not absolutely clear. Since 2018 to 2019, there have been symptoms of anxiety, depression and some psychotic-like symptoms, perhaps drug-induced. Diagnoses of drug-induced psychosis and personality disorder have been made, but are not certain. Dr Turnbull diagnoses likely chronic anxiety, which persists in prison. He does not find an ongoing psychotic condition and finds no significant connection between your mental health and this offending. You appear, at least at times, unresponsive to mental health and other assessment. In my view, this is apparent from Dr Turnbull's report and the community corrections order suitability reports. Dr Turnbull notes, from those records, some aspects of this in the New South Wales psychiatric hospital reports and how you present in prison. He sees poorly established rapport between you and mental health staff.
27It is clear that you have found imprisonment difficult. There has been placement in a mental health unit and, for some time now, in a management unit. Dr Turnbull's report and, more particularly, the extended community corrections order suitability report stated reported incidents of misconduct in prison, apparently serious. It became the agreed position that such allegations should not be considered relevant by me on this sentence. However you are not able to claim positive rehabilitative behaviour in prison. Dr Turnbull states of you, toward the end of his report:
'I think he is having a difficult time in prison, at least in part, due to the anxiety component of his mental health. That is evidenced by his self-harm, ongoing difficulties with low moods and panic episodes.'
28You have also had difficulty, he says, in establishing a beneficial relationship with treating staff.
29The mental health screening report of Amy Meiklejohn also states significant anxiety symptoms. She states a mild mental health problem requiring medication and longer term psychotherapy, which can be met under a community corrections order. She notes improvement in your adherence to anti-depressant medication and as to your self-harming, which has been by cutting. You seem to have been more responsive in consultation with her, which was on 17 March 2021.
30Armed robbery and these examples of it is serious offending. It attracts a high maximum sentence. A knife is a frightening weapon. Both victims were vulnerably placed at their employment. There was actual violence in the second offence. You have prior criminal offending, although not of this kind. The circumstances of your offending make relevant sentencing considerations and purposes of moral culpability, deterrence, that is both general and specific deterrence, condemnation of the offending and proportionate punishment of it. Community protection requires that you and others be deterred.
31The usual sentence for armed robbery is one of imprisonment of some length, requiring a head and minimum term.
32In your case, there are also important moderating factors. They include the following matters:
33(1) Your plea of guilty and cooperation. As stated, that has been important in facilitating the interests of justice. The materials before me do not show high levels of insightful remorse.
34(2) Your personal history and circumstances. I should take into account your mental health, although not in my view conclusively shown by the evidence before me. Particularly I find that it has played a part in making imprisonment more difficult for you. Self-harming is a serious matter and symptom of distress. It can also be said that the difficulties encountered by you in custods potentially compromised your chances, as a still relatively young man, of rehabilitation within that setting. I accept that the necessary COVID-19 precautions and restrictions would increase the burden of custody for a person suffering anxiety symptoms.
35(3) I also take into account some mitigating circumstances of your offending. The first armed robbery was, I find, motivated and committed almost spontaneously in a situation of quite desperate homelessness. The second cannot be seen as emphatically just that. However, your homeless situation played, I find, a significant role. As put by Mr Pyne you were still sleeping rough when arrested in early May of 2020. I do not find that there was significant pre-planning. The hoodie you wore and use of the card creates suspicion; but I do not find, as required, beyond reasonable doubt, that they were part of a plan. I make this finding after consideration of not only the Crown summary, but also the relevant depositional materials. I have also noted the somewhat unusual circumstance that you did not persist in presenting the weapon. It can be said that the effect was already made. However, it should be found that imminent feelings of fear would likely be lesser.
36I do not seek to understate the overall seriousness of the offending, both crimes, by reference to such mitigating matters. However they should be taken into account.
37(4) There is also the matter of rehabilitation which remains relevant, given your relatively young age. The evidence does not state high prospects for, or movement already toward it. I am necessarily guarded. However, your age, present circumstances and that your criminal record, although significant, does not discount its chances, make rehabilitation a still relevant consideration. There should still be the attempt, if feasible, to structure a sentence to enable it. It can be said that this is also in the broad interests of community protection.
38Mr Pyne has argued for a sentence of imprisonment followed by release upon a community corrections order. Mr de Vietri submits that the only appropriate sentence is that of head and minimum term.
39You have been found not suitable for a community corrections order. The reports before me point to, amongst other matters, a lack of accommodation and community support and, in part related to that, risk of absconding. The reports also raise your failure to comply with the December 2019 New South Wales community corrections order and to the impending New South Wales warrants. It is a matter of speculation as to execution of those, whether you are released on parole or a community corrections order or serve the whole of a head term.
40A very significant development in the proceeding has been the fact that subsequently you have been able to access supported accommodation if or when released. McCormack Housing is associated with ACSO, Australian Community Support Organisation. Ms Smith, its tenancy worker, who has assessed you as suitable to participate in the accommodation program, gave quite comprehensive evidence before me of that program and supports it provides. Given a period of notice, for example, three months, a place is effectively available. The program can run for several months and then assist in funding further accommodation. It has, what I see to be strict, but sensibly flexible rules. The program has strong links to community corrections officers who manage a community corrections order or parole. The programs required of you are significant and can accommodate programs and conditions of a community corrections order. I have not been complete.
41In my view, benefits of release upon a community corrections order includes certainty of available accommodation and the opportunity for judicial monitoring by imposition of such a condition.
42It has become clear to me, that chances of rehabilitation on a community corrections order or parole are very greatly compromised if there is not stable and suitable accommodation. The difficulty in not having that should not be underestimated. I see McCormack Housing as providing it.
43This is a difficult sentence. Mr de Vietri's submission has merit. I am guarded about your rehabilitation prospects. However I have decided, after careful consideration of the competing factors, that the relevant sentencing purposes here can be met by a sentence of imprisonment followed by a community corrections order release. That order should include appropriate punitive and rehabilitative conditions.
44I have considered the comparative sentencing summaries provided; however I also bear in mind the need to sentence individually to your case.
45Mr Dabbagh, I sentence you as follows:
46On Charge 1, you are sentenced to nine months' imprisonment.
47On Charge 2, you are sentenced to 15 months' imprisonment.
48I declare that two months of the sentence for Charge 1 be served cumulatively on the sentence for Charge 2.
49That is a total effective sentence of 17 months.
50I declare, under s18 of the Sentencing Act, 412 days of pre-sentence detention.
51Also, on both offences I impose a community corrections order of two years duration to commence upon release. The usual terms apply.
52The additional conditions are that you perform unpaid community work over the two years, of 200 hours.
53That there be assessment and treatment for drug-abuse; that there be assessment and treatment for mental health.
54I also impose a condition of judicial monitoring. Just working out if I can get some assistance on the arithmetic, when that should be. I propose, and this is for your hearing as well Mr Dabbagh, judicial monitoring to be very actively intensive in this case. That includes that I think the first judicial monitoring really should be only two or three weeks after release from prison, to make sure that Mr Dabbagh is settled in the McCormack Housing accommodation program.
55Now my arithmetic indicates that expected release would be 1 October. Can people confirm that for me?
56MR PYNE: Your Honour, I think that – I can't say that the exact date is right, but I think it is around about then, but my strong suspicion is that Mr Dabbagh would have a number of emergency management days.
57HIS HONOUR: I see.
58MR PYNE: Given the period of which he has been remanded.
59HIS HONOUR: Yes, well I cannot ‑ ‑ ‑
60MR PYNE: But I think ‑ ‑ ‑
61HIS HONOUR: That's – that's not a matter relevant to me so that's the most – that's – in your experience, what do they usually amount to in a sentence, when somebody's been in custody for 12 or 13 months?
62MR de VIETRI: Well, it's probably difficult to tell, Your Honour, in this case.
63HIS HONOUR: Yes.
64MR de VIETRI: There is a mixture of conditions – there is a mixture of factors that could contribute to those days, COVID lockdowns and various other things.
65HIS HONOUR: Well, we are not talking about ‑ ‑ ‑
66MR de VIETRI: But I think it is safe to say it would not be after that date.
67HIS HONOUR: No.
68MR de VIETRI: It may some weeks before though.
69HIS HONOUR: It would be measured in weeks rather than in months, I presume.
70MR de VIETRI: I think that is correct.
71MR PYNE: I agree with that, Your Honour.
72HIS HONOUR: Yes, well I've done the – that is not a matter of relevance to me on the sentence.
73MR de VIETRI: No, that's correct.
74HIS HONOUR: But it is of assistance on when I should set the judicial monitoring date. Leaving that aside, arrested on 1 May, so 12 months runs to 1 May of this year, and then you add five months, don't you, and that gets me to October the 1st. Have I – I have not misconstrued anything, have I?
75MR de VIETRI: No that is – I think that is correct, Your Honour, so given it is likely to be at least a week or a couple of weeks deducted from the sentence, Your Honour could probably safely set it for about 1 October, and I am sure if circumstances change, then the court can be alerted.
76HIS HONOUR: All right, I was going to make two weeks after, the 15th of October. Now that might be – should I make it tighter than that? I want to know Mr Pyne, that he has gone to Traralgon, or wherever he is supposed to be going, he is there, settled in, and I want to know that.
77MR PYNE: I understand that, Your Honour. I actually agree with my learned friend. I think that a date closer to the 1st of October is more likely to ‑ ‑ ‑
78HIS HONOUR: I will make it the 7th of October. I mean there is no point in making it when he is still inside, or very soon afterwards. He has got to get there and it has got to be – they have got to indicate to me that he has settled in there in some way, so I will make it 7 October.
79What I am conveying to you, Mr Dabbagh, is, I am giving you a chance, and I think the chance is probably this; although I cannot take it into account in my sentence because it is a pure speculation, but it may be of interest to you.
80If I did not impose the opportunity, or give you the opportunity of getting out, I reckon you would probably serve the whole of the head sentence. That is what I reckon would happen, so I am giving you that chance.
81But I am conscious of this; that there is – this is a comment - not to be contained within my sentencing reasons – but it is a personal comment if you like. There is an element of risk here and so I am going to want to see you very frequently during the period of time to make sure you are complying. If you do not comply, the rule is this; I simply re-sentence you and then you confront quite a long time in prison. Do you understand that?
82OFFENDER: Yes.
83HIS HONOUR: All right, well let us see what happens. All right, now we are now going to get the community corrections order. It needs to be printed out, so just be patient.
84MR de VIETRI: While Your Honour is waiting for that, can I just remind Your Honour that the Crown did make a forfeiture order for just a couple of items that were seized at the time of his arrest.
85HIS HONOUR: Yes, and I need to make a s6AAA indication too.
86MR de VIETRI: And a 6AAA declaration would be appropriate.
87HIS HONOUR: I will make that now. If you had not pleaded guilty Mr Dabbagh, I would have imposed a sentence of four and a half years with a minimum term of two and a half years, and repeating what I said before, that would very likely, in your case, mean four and a half years. So you can do the arithmetic. All right, and a forfeiture order. I will sign there. What is it? Knives or something like that?
88MR de VIETRI: No it is just a toothbrush, a Stussy T-shirt and Zoo York track pants that were seized at the time of arrest as evidence.
89HIS HONOUR: All right, well I will make that order and if it is sent to me, I will sign it. We will just wait for the community corrections order. I need to put that to Mr Dabbagh.
90MR de VIETRI: I think that has been filed by my instructor Your Honour.
91HIS HONOUR: Yes, my associate - I will sign it. If we have not got it, I will get my associate to get it for me and I will sign it.
92MR de VIETRI: Just to make clear, Your Honour, there is no condition associated with McCormack Housing but that is obviously ‑ ‑ ‑
93HIS HONOUR: I am sorry.
94MR de VIETRI: ‑ ‑ ‑ Your Honour's attempt to ‑ ‑ ‑
95HIS HONOUR: There should – no, no – there should be. I omitted that, yes.
96MR de VIETRI: ‑ ‑ ‑ accommodate that for judicial monitoring.
97HIS HONOUR: A further condition is you comply with the McCormack Housing program I have referred to in my sentence.
98Now, engagement of that will follow from him reporting under the community corrections order. One of the important aspects of Ms Smith's evidence was the close links or liaison between community corrections and the program, so that is all I need to say I think. It will mean that we will need to change, or I will need to amend the order. Thank you for reminding me of that, Mr de Vietri.
99MR de VIETRI: No, that is all right.
100HIS HONOUR: It was a serious omission.
101MR de VIETRI: So it is a condition to comply with the McCormack Housing program.
102HIS HONOUR: Yes. That he comply with the McCormack Housing program, referred to, or described in my sentencing reasons.
103MR de VIETRI: Yes, Your Honour.
104HIS HONOUR: I might have to – can you see how far she has got?
105MR de VIETRI: I understand Corrections orders can now be entered into, or consented to verbally, and that would be entered in the records of the court. Is that how Your Honour's proposing to do it?
106HIS HONOUR: Yes. Yes, well that – that means I can probably put it to him now, doesn't it? And then I would send off the final order to you Mr Pyne? Or to your instructor or to the prison?
107MR PYNE: To my instructor and to the prison I think, Your Honour.
108HIS HONOUR: All right. Well, I will indicate now – I think I have imposed enough of these orders to remember what the conditions are.
109It will be sent to you for signature, but I am going to ask you now Mr Dabbagh, whether you consent to it? Do you follow me?
110OFFENDER: To what?
111HIS HONOUR: I am going to ask – I am going to set out for you now the conditions of this order and ask you whether you consent to it? Do you understand what I am doing?
112OFFENDER: Yes.
113HIS HONOUR: All right, it will run from two years after release, and that will be approximately early October. The usual terms are that you report to the relevant Community Corrections office within two days of that release. You will need to be advised what that is, I should think.
114That you receive visits from community corrections. I think I should add that there be a supervision – no – that is not a usual term. That you do not attend any program or appointment affected by alcohol or illicit drugs or in possession of illicit drugs.
115That you report within two days to community corrections of any change of address or job, that you receive their permission before you travel interstate and that you otherwise comply with all of their lawful instructions and directions.
116The additional conditions are that you perform unpaid community work of 200 hours over the two years, that there be assessment and treatment for drug use; that there be assessment and treatment for mental health; that there be judicial monitoring. The first judicial monitoring appointment will be the 7th of October of 2021, which will require you to come to court to see me;
117That you comply with the McCormack Housing program I have referred to and described in my sentencing reasons, and that there be supervision of you by community corrections. Now do you understand all of that?
118OFFENDER: Yes, I understand that.
119HIS HONOUR: And do you agree to it?
120OFFENDER: Yes, I do.
121HIS HONOUR: All right, and it will sent to you to sign. All right. Now, I do not need to say or do anything else, do I?
122MR PYNE: No, Your Honour, as the court pleases.
123MR de VIETRI: No, Your Honour.
124HIS HONOUR: All right, thank you. Thank you both, particularly for your help during the course of these proceedings. That having been said, do we know who your instructors are Mr Pyne? I suppose we should.
125MR PYNE: My instructor is Ms Ramirez; she is on this link.
126HIS HONOUR: What firm is that?
127MR PYNE: From Victoria Legal Aid.
128HIS HONOUR: All right. All right we've got that. Yes, Angelique Ramirez.
129MR PYNE: Ramirez, yes.
130HIS HONOUR: All right, now we ‑ ‑ ‑
131MR de VIETRI: And ‑ ‑ ‑
132HIS HONOUR: Go on.
133MR de VIETRI: Sorry, just if I can raise one matter. The reporting condition – just – just ‑ ‑ ‑
134HIS HONOUR: No, we are going to change it anyway, but we can do that later. Yes, go on.
135MR de VIETRI: Your Honour referred to the appropriate corrections office. We do not know what that is at the moment.
136HIS HONOUR: No.
137MR de VIETRI: I just think perhaps to make it clearer, more easily, perhaps it should be the corrections office at a particular location unless otherwise advised.
138HIS HONOUR: All right, we can do that.
139MR de VIETRI: Or I am not sure if Mr Pyne has a view that ‑ ‑ ‑
140HIS HONOUR: What is the – excuse me Mr de Vietri. What is the matter?
141ASSOCIATE: It is just – I am in – I can print this but I cannot change it.
142HIS HONOUR: I don't care. We are going to print it later. We have done all we need to do on it. We will change it later. You are suggesting that it should be a particular office?
143MR de VIETRI: Or I guess it could be a Corrections office, but I think they usually need to – they usually specify which office it is.
144HIS HONOUR: Or an address otherwise advised. I got the impression that the likelihood would be that there be accommodation provided for him in the Traralgon area, but it is not certain is it?
145MR PYNE: No, Your Honour, it is not. It maybe in Bendigo.
146HIS HONOUR: Yes, I see. Just hand me – what have you got for that. My associate has included the Franklin Street, Melbourne. We could use that, or other office as advised.
147MR de VIETRI: Yes, that is right, I am not trying to limit the options, I am just trying to give something to go off.
148HIS HONOUR: Yes, I think that is right - or as otherwise advised. All right. There was one of the usual terms I did not advise to you Mr Dabbagh. It is this; you must not commit another offence for which you could be imprisoned during that term of two years, and possession even of a small amount of drugs other than cannabis, would bring you into that situation. All right. So I will amend this order and it will be sent to Ms Ramirez at – is it Melbourne Victoria Legal Aid, is it?
149MR PYNE: Yes, Your Honour.
150HIS HONOUR: Good, thank you. Thank you both for your assistance.
151MR de VIETRI: If Your Honour could include – if Your Honour's associate could include Mr Brennan my instructor, as well, thank you.
152HIS HONOUR: Yes, we will send it to you too. All right, good. Thank you. We will turn you off now.
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