Director of Public Prosecutions v Djalalian

[2017] VCC 452

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-02018

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHSEN DJALALIAN

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2017
DATE OF SENTENCE:	28 March 2017
CASE MAY BE CITED AS:	DPP v Djalalian
MEDIUM NEUTRAL CITATION:	[2017] VCC 452

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Andrews	Office of Public Prosecutions Victoria
For the Accused	Mr M. Brennan	Emma Turnbull Lawyers

HIS HONOUR: 

1Mohsen Djalalian, you have pleaded guilty to one charge of attempted armed robbery as well as a summary charge of committing an indictable offence, namely this attempted armed robbery whilst on bail. 

2The prosecutor opened the circumstances of the offending by reading from a written "Summary of prosecution opening" which was tendered. 

3In short, at about 7.10 am on 13 April 2016, you approached a female who was in Lygon Street, Carlton, on her way to work.  She was waiting to cross the road, and you were wheeling a bicycle.  You asked her for 50 cents, and she responded, "No, sorry" and continued on.  You mounted your bicycle and followed her and said, "You have to give me 50 cents."  You were holding a blue‑handled pocket knife that seemed to have a Stanley blade which was exposed.  You moved it up and down in a stabbing motion.  She told you she only had her tram pass.  You then said, "If you don't give me 50 cents I'm going to follow you and I'm going to cut you". 

4The victim then walked towards two males for assistance and you turned and rode off. 

5At first blush, the demand for such a small sum is curious, but it seems that the explanation is that you wanted to buy cigarette papers which an attendant at a nearby 7‑Eleven store just before you approached the victim had refused to give you on the undertaking that you would pay later. 

6You were arrested on 15 April 2016. 

7You were interviewed by police.  You admitted your presence at the scene but disputed the victim's account, stating, "She is lying, she is making it up." 

8No victim impact statement has been made, but the expected impact on the victim would be obvious.  She has said she was fearful when you followed her, was in fear when you produced the knife and was still shaken at the time of making her statement. 

9At the time of the offending you were subject to three undertakings of bail for charges of contravening family violence orders and making a threat to kill, hence the summary charge to which you have pleaded guilty. 

10Your counsel acknowledged the serious nature of the offending and conceded that imprisonment must be imposed, but emphasised the absence of physical injuries to the victim, the fact that no others were involved, the low sum demanded by you and the lack of premeditation. 

11An order for the taking of a forensic sample was sought by the prosecution.  You do not oppose the making of this order.  I will make it.  My reasons will appear in the order.  I inform you that a police officer may use reasonable force to obtain the sample. 

12You have a criminal history, primarily for drug, dishonesty and driving matters.  However, you were found guilty of unlawful assault in 2001, 2009 and 2012.  You have received wholly suspended sentences of imprisonment, an intensive correction order, which was breached, an adjourned bond, as well as terms of imprisonment. 

13You have pending matters to which you intend to plead guilty in the Magistrates' Court next month.  Some of these matters occurred prior to the current matters and some arose out of a disturbance at your place of residence during the time you were released on bail for the current offending. 

14Your counsel tendered a "Defence outline of plea submissions" which sets out a chronology of relevant matters, including your bail history concerning the charge of attempted armed robbery. 

15First, on your arrest you were remanded in custody.  You were then granted bail by a magistrate on 13 July 2016.  On 29 October 2016 you were remanded on summary matters.  Then on 15 November 2016 you were committed for trial on the attempted armed robbery and remanded on that charge.  Accordingly, you have spent two periods in custody that need to be reckoned as presentence detention by me. 

16I have been advised that the period is 222 days, and this will be reckoned as time already served under the sentence I impose. 

17Your counsel briefly outlined your personal history.  You were born on 22 July 1967 in Iran and are now aged 49.  You immigrated to Australia in 1991.  You are a pensioner, but are qualified as a painter and electrician.  Your mother and sister attended court to support you.  You have two other siblings in Melbourne who are also supportive.  You have had one long‑term relationship of five years from which a daughter was born who is now aged eight.  You separated from your wife but retained shared parenting rights with her.  Family Court orders are in place and a family violence order in your wife's favour make access to your daughter difficult.  An order that you only visit your daughter at a child protection centre was unacceptable to you and you hope to regain more liberal visiting rights at a Family Court hearing listed for early May. 

18Of course being in custody further complicates this, and I accept that you are under stress in prison due in part to your inability to see your daughter, who you have not seen since February 2016. 

19You have a history of mental health problems.  A report from Dr Leon Turnbull, forensic psychiatrist, was tendered.  He confirms your established diagnosis of schizophrenia as valid.  Dr Turnbull noted that two of your siblings apparently have mental health problems, including a sister who has schizophrenia.  You informed Dr Turnbull that you thought you had had five psychiatric hospitalisations and had been treated in the community under the coercive powers of the Mental Health Act. 

20You dislike injectable anti‑psychotic medication and are currently taking an oral anti‑psychotic.  As I understand, this is because of side effects that inhibit your sleep.  It seems you have been difficult to treat in the community due to "non‑adherence and active avoidance."  However, Dr Turnbull did not have psychiatric records detailing your symptoms and mental illness chronology. 

21Dr Turnbull thought you stable, and although you told him you would continue to take your oral medication, Olanzapine, he wrote, "a deeper understanding of the therapeutic reasons for that were not forthcoming." 

22This medication and your absence of illicit drug taking in prison have resulted in what seems to be a complete remission of psychotic symptoms. 

23Dr Turnbull thought co‑morbid drug use had probably propelled your illness in the past few years, especially ice, which he thought seems to have led to coercive treatment by injectable anti‑psychotic. 

24Your counsel informed me that you began using hashish at 20 and heroin in 2000.  He said you ceased heroin use in 2012, and over the last five years you have been using ice.  Dr Turnbull thought that whilst off drugs and taking medication you can be completely free from psychotic symptoms, but if you return to ice use and cease medication you would "likely spiral again to a state of drug dependence and chaotic behaviour." 

25When released into the community, Dr Turnbull thought your Area Mental Health Service will need to be engaged to ensure you are "followed up."  Your future psychiatric treatment will therefore hinge on your motivation and ability to desist from drug use, and if you chose to evade treatment there would be little scope to intervene. 

26Dr Turnbull was not sure that your schizophrenia made prison more burdensome to any significant degree. 

27Dr Turnbull did not think you were psychotic at the time of the current offending, or that your mental illness played "much role." 

28You must benefit from your pleas of guilty.  They save time, expense and the need for witnesses to give evidence at trial.  However, they were not made at the first reasonable opportunity.  You made denials to the police.  A committal proceeding was conducted with a plea of guilty to the attempted armed robbery being entered shortly after. 

29Your counsel submitted that whilst your denials to police, and indeed the account of the alleged incident you gave to Dr Turnbull suggest an absence of remorse, this needs to be seen in the setting of your mental illness.  He submitted that there was something in your make‑up that prevented you from understanding the seriousness of what you did. 

30I cannot identify any clear and relevant evidence of remorse. 

31It was accepted that your offending was serious and called for a "custodial disposition."  However, your counsel argued that I should release you on a combined sentence of imprisonment and a lengthy community correction order (CCO).  Indeed, the submission was that time served was sufficient to meet the required term of imprisonment. 

32Your counsel argued that your mental health problems should reduce "the weight that would otherwise be afforded to general deterrence in this sentencing exercise."  The prosecution submitted that whilst some amelioration in this regard may be warranted, general deterrence clearly still remained relevant.  I am prepared to accept your counsel's submission, but I consider the prosecution is correct that general deterrence still remains relevant, as I understood was conceded by your counsel in any event. 

33I also accept that whilst in prison you are unlikely to receive visits from your daughter and will be disadvantaged in any Family Law proceedings.  This is likely to cause you stress and worry and add to the burden of imprisonment. 

34Other sentencing objectives, such as specific deterrence, just punishment and protection of the community remain relevant. 

35Your rehabilitative potential is difficult to assess.  This is because much depends on illicit drug abstinence and treatment compliance.  It is pertinent, as I see it, that when released on bail in July you re‑offended whilst receiving some support on CISP bail, albeit without the benefit of a case manager.  The reoffending meant a return to prison. 

36The prosecutor argued that I should be guarded about your rehabilitative prospects, and I think this is correct.  She noted several matters commented upon by Dr Turnbull, including his statement that you are not sure you have a mental illness and that some antipathy towards psychiatric services remains.

37Some of the difficulties of managing you and your condition, as well as the fluctuating history of your condition, are outlined in a 2015 NWMH Transition/Discharge Summary tendered by your counsel. 

38You want to return to the workforce as a house painter with a view to saving and beginning your own large‑scale electrical business.  You have worked in prison whilst at the MRC, but since your recent transfer to Fulham, you have not had work.  You are awaiting a drug and alcohol program. 

39You have access to public housing.  You are planning to live with your 78‑year‑old mother on release.  It is difficult to predict what will happen to your public housing flat.  I was told that once it is unoccupied for six months you will be at risk of losing that accommodation.  Additionally, as a result of your conduct at the property, proceedings by the Ministry of Housing to have you evicted have been proposed. 

40I was referred to a number of cases by the prosecutor and one case in particular by your counsel.  Whilst helpful, all cases turn on their own facts. 

41The prosecution submitted that because of a combination of matters, including your prior convictions, limited rehabilitation prospects, the need for deterrence, community protection and your lack of remorse, you should be sentenced to a period of imprisonment with a non‑parole period.  It was argued that a combined sentence of imprisonment and a CCO was not appropriate.    One of the distinguishing factors between are he lease on a CCO and release on parole is that in the case of the latter any breach can be dealt with swiftly. 

42The prosecutor noted that the current offending occurred whilst you were subject to three sets of bail and that you re‑offended after being released on CISP bail for the current offending.  It is also common ground and implicit in the NWMH Transition/Discharge Summary that you breached CISP bail in 2011.  You breached the intensive corrections order on which you were placed in 2007. 

43I had you assessed for suitability for release on a CCO.  You were found suitable, however, in my view release on a combined sentence of imprisonment and a CCO is not appropriate. 

44In my view a sentence of imprisonment with a non‑parole period is the appropriate disposition. 

45Your counsel submitted that should I come to this conclusion, then as short a non‑parole period as possible would be sought to make available the possibility of supervised parole for as long a period as possible.  Of course I cannot speculate about whether or not you would be granted parole, although I understand that you would be assessed to determine your suitability for release on parole after that becomes an option. 

46On the charge of attempted armed robbery, you will be convicted and sentenced to 30 months' imprisonment. 

47On the charge of committing an indictable offence on bail, you will be convicted and sentenced to one month's imprisonment.  This is to be served concurrently with a sentence of 30 months making for a total effective sentence of 30 months' imprisonment. 

48I fix a non‑parole period of 15 months. 

49Had you not pleaded guilty I expect I would have sentenced you to a total effective term of about 40 months' imprisonment with a non‑parole period of about 24 months' imprisonment. 

50Is there anything that I have said that counsel can identify that's incorrect? 

51MR BRENNAN:  Just is the reckoning of presentence detention, that's already been dealt with.

52HIS HONOUR:  Say that again?  It is to be reckoned as time already served, I noted that.  The record will reflect that.  I have signed the 464 orders, and I hand them down.  The prisoner will have to go ‑ Mr Djalalian will have to go with the prison officers now, thank you.  Thanks counsel.  I've got some appeals that I have listed, so you are both excused.

53COUNSEL:  Thank you, Your Honour.

54HIS HONOUR:  Thank you both for your help. 

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