Director of Public Prosecutions v Fariah
[2021] VCC 682
•26 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00012
Indictment No: K12668313
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FARHAN FARIAH |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 May 2021 |
DATE OF SENTENCE: | 26 May 2021 |
CASE MAY BE CITED AS: | DPP v FARIAH |
MEDIUM NEUTRAL CITATION: | [2021] VCC 682 |
REASONS FOR SENTENCE
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Subject:Armed robbery. No prior criminal history but a number of other criminal offences committed in same time frame. 22 years of age. Guilty plea; Bugmy; Verdins; Risk of deportation; Sentencing Act 1991 s.5(2H). Category 2 offence.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O’Toole (For Plea) Ms S. Johnston (For Sentence) | Office of Public Prosecutions |
For the Accused | Mr D. Rofe (For Plea) Mr G. Herrera-Burchielli (For Sentence) | Chester Metcalfe |
HIS HONOUR:
1 Farhan Fariah, you have pleaded guilty to a single charge of armed robbery laid on the indictment filed in this court. You were also before me in relation to an appeal against the sentence imposed at the Melbourne Magistrates' Court on 5th March of this year. On that occasion, you received a four-month prison term for a charge of robbery. It was unusual in the sense that the robbery could have come up to this Court with both matters heard together. Instead, it was severed off and heard summarily in a setting where there was already a plea date in this Court for this armed robbery. It was all a bit messy. I suppose you got the advantage of the jurisdictional limits to the maximum allowable penalty which apply to the Magistrates' Court. Anyway, you were quite lucky to receive such an outcome given the nature and seriousness of that offence, targeting as it did a 15-year-old, and with significant enough impact. That appeal was abandoned at the outset of the hearing after I had warned of the possibility of an increase in penalty.
2 The maximum penalty for armed robbery is 25 years' imprisonment.
3 You were born on 3rd August 1998 and are 22 years of age. You have no formal prior criminal history though had amassed a good deal of offending in the relevant time frame, some of it actually quite serious. I was provided with an up to date LEAP history which set out the other offending. Your counsel told me that some of the matters dealt with on 10 December 2020 predated the matter I am dealing with, whilst some post-dated it. The precise order though is unimportant. What it demonstrated was a spate of serious enough offending.
4 The appeal matter for instance related to conduct occurring on 22nd September, so about a month after the armed robbery that I am dealing with.
5 This matter was opened to me by the prosecutor, Mr O’Toole, in accordance with a lengthy written plea opening dated 21 April 2021. Your counsel, Mr Rofe, conceded that it was an agreed summary. The concerns he had expressed in his written submissions about the iPhone taken by ‘Capone’ and the Facebook messages had been addressed by the amendment of the charge. Those amendments made it clear that you had no responsibility for the taking of the phone and that the references to messages sent were of no consequence in the case against you.
6 I see no need then to repeat all the sentencing facts. It is a lengthy summary and I will sentence in accordance with it.
7 That summary discloses that this was a nasty event that befell your victim, Duc Nguyen, as he was walking home from University on the afternoon of the 26 August 2019. You were 21 at the time and you were in a car, an Audi, with two other men, one named Franco, the other referred to as ‘Capone’. Capone is a nickname and he remains unidentified.
8 Mr Nguyen saw the car that you and your offsiders were in, parked outside an address in Storey Road, Reservoir. He had a friend named Stankovic who lived at that address. Someone from within the car called him over to the car. It would seem that was Franco, someone he had been to school with. Franco was in the driver’s seat. Nguyen recognised the other male known as, ‘Capone’ as someone he knew from school. He recognised you as well.
9 Capone asked Nguyen to call his friend in the house. He did that by phone. Capone got out holding a taser and took Mr Nguyen’s phone. You also got out and, as I say, Nguyen recognised you. By the time you had got out, the phone had already been taken so you do not fall to be sentenced for that taking. However you grabbed Nguyen’s AirPods and in a setting where Capone was armed and waving around the taser device and threatening to use it as he was demanding the password for the iPhone/iCloud. The mutual acquaintance, Stankovic, came out of the house and saw this unpleasant developing situation but was reluctant to assist Nguyen owing to the presence of the taser. At one point, Mr Nguyen tried to snatch back his phone and your offsider Capone deployed the taser and attempted to use it on your joint victim. Mr Stankovic sought to intervene and you left with Capone and Franco, with Capone saying words to the effect, 'I will bring trouble to you'.
10 The summary details the arrest of Franco as well as the obtaining of the CCTV footage which showed you in the front passenger seat on the day in question. You were interviewed on 13 October and said you knew nothing about the armed robbery or Franco or the Audi or the AirPods. You could not explain why you would have been seated in the car.
11 You were charged and remanded in custody. There is a chronology attached to the summary which provides details of your arrest, bail and custodial placement. You had been granted bail on 26 March 2020 but went back into custody on other matters in July. You have been in custody since. The bail for this matter was revoked on 21 October last year. All up you have spent 226 days in custody in relation to this matter but of course you have been in custody for a longer period overall. You received the eight-month term of imprisonment in December of last year. That has been served. You also received the four-month term which had been the subject of the appeal and have served a portion of that sentence as well. I do not lose sight of the totality of your custodial placement.
12 I was told that the armed robbery charge against Franco was withdrawn with a remittal of the matter back to the Magistrates Court for a plea to handling stolen goods. There is then no issue of parity in play here for me to consider.
13 So much then for my short summary of the summary. I will sentence in accordance with the agreed summary, marked as Exhibit A.
Victim Impact Statement
14 There is no victim impact statement here. Armed robbery is an inherently serious crime. It was obviously a frightening offence. It was in company and there was a weapon. Of course it would have an impact upon the innocent victim who was just minding his own business whilst you were doing precisely the opposite. There is no material before me as to any sizeable impact so I cannot find that to be so.
15 I take into account the impact of this crime.
In Mitigation
16 Mr Rofe conducted the thorough plea on your behalf. He relied upon a very detailed written outline that was dated 18 May 2021.
17 He informed me about your family background and relied upon what he said was a significant level of disadvantage in your formative years. He made some submissions as to the relative gravity of the offence and your role. He made submissions as to your prospects of rehabilitation. He placed before me two reports from a neuropsychologist, Dr Laura Anderson, though conceded that there was an unsatisfactory aspect here in that she had never even spoken to you about this crime. He withdrew any reliance at all on paragraph 17 of the written submissions. He abandoned any reliance on the suggestion that there was any reduction in culpability arising from alcohol or drug use or substance use disorders. He informed the Court that drug and alcohol use was simply a context. Even on that score, he conceded that there was no evidence before me at all as to your state on the day of the offence. You had denied the offence to police and there was no version provided to Dr Anderson at all.
18 There was also an excellent letter provided on the plea from your sister.
19 In mitigation, your counsel relied upon the following matters:
· Your relatively early guilty plea in the midst of the global pandemic;
· The presence of some limited remorse;
· Your youth;
· Your disadvantaged background;
· The application of two of the principles from the case of Verdins[1], namely the 1st and the 3rd limbs;
[1] [2007] VSCA 102; 16 VR 269; 169 A Crim R 581
· An increase in your prison burden owing to the response to the COVID-19 pandemic; and, finally,
· The risk of deportation, both as increasing your custodial burden and also as operating as a penalty itself with the loss of opportunity of remaining in this country.
20 In his oral submissions he conceded that imprisonment was warranted but argued that you should be considered for your suitability for a combination sentence, with a prison term and a community corrections order to take effect upon your release. Armed robbery was a Category 2 offence in this case owing to it being committed in company. Unless you satisfied the Court that you fell into one of the exceptions in section 5(2H) of the Sentencing Act, an order confining you was required and not one made in combination with a community corrections order.
21 Your counsel argued that section 5(2H)(e) was enlivened here, that is that there were substantial and compelling circumstances that are exceptional and rare that justify not making a custodial order. That provision is extremely difficult to satisfy. It is designed to be. The language of the subsection makes that very clear. He withdrew the suggestion in paragraph [31] of his written submissions that I should use the device of not declaring your pre-sentence detention. He had originally suggested when the matter was first called on and we were discussing both the armed robbery and the appeal matter, that I should consider imposing a three-month term on the armed robbery in combination with a community corrections order. The significance of three months was that it, in combination with the previous eight-month term, would still fall short of the
12-month term referred to in the Migration Act. It would have been a very strange outcome indeed to impose a term less that the existing pre-sentence detention. Anyway, he withdrew that submission. He had by that stage abandoned the appeal against sentence which therefore left undisturbed that four-month term. He conceded that if a combination type order was open, that it would have at least the period of your pre-sentence detention as the prison component, if not more. That itself would amount to a period of over seven months. All of these things had ramifications in terms of the Migration Act. He conceded that if not satisfied that a combination order was available here, that a head sentence and non-parole period was the only option.
Prosecution
22 The Director of Public Prosecutions was calling for just such an outcome. The prosecutor relied upon some written submissions which I marked as Exhibit C. I am not going to work my way through those submissions in any detail now as they were both quite uncontroversial, and quite lengthy. The prosecutor challenged the application of any of the principles from the case of Verdins. He challenged the presence of remorse. He challenged that you had successfully brought yourself within section 5(2H)(e). Whether you had or had not, the prosecution took issue with the submission that a community corrections order even in combination with a prison term was open in this case. The prosecutor made submissions as to the features of aggravation and mitigation. There was no dispute that the case of Bugmy[2] would have some role, likewise youth and the risk of deportation. The Director had challenged any mitigatory weight to be attributed to drug or alcohol use but that submission had been withdrawn by your counsel.
[2] [2013] 249 CLR 571
Background
23 I will turn now to your background, but I am going to do so quite briefly. It is set out in great detail in Ms Anderson’s first report. I accept that background as placed before me and the Crown accept that it is one of disadvantage. So do I. It was a most disadvantaged and dysfunctional background. Very briefly then, you were born on 3rd August 1998; you are now 22 years of age. You were born in Somalia. You are the middle child of five children. You came to Australia in 2015, so when you were about 16 years of age. Your parents had been killed when you were an infant. You never really knew them. You were raised by your sisters and uncles. An uncle you were very close to was also killed. You were exposed to much by way of trauma and conflict. I will not set out all that is in the report. It was a very different and harsher world you lived in in Africa. You had to, 'hustle' to survive. Violence was all around you and was normalised to an extent.
24 You have two sisters living in Australia and two in Somalia. It took much time and effort and, I imagine, expense for your sister to sponsor you out and you have a sense that it has all been wasted now that you risk deportation. There is a strong letter from your sister which I take into account. You and one sister had come out to Australia to live with your oldest sister. There had been some periods of homelessness once you moved out of her home. Schooling was very much disrupted in Africa. I understand that you can read and write English but not at any great level. You sister speaks of your efforts in buckling down and doing two good years at Reservoir High School. She speaks also of your falling in with a bad crowd.
25 You have never been formally employed and had been on Jobseeker payments prior to being remanded. You have obviously downplayed the extent of issues with drugs and alcohol at some points (see Anderson's report, paragraph 5.5.2). Alcohol and drugs have obviously been highly problematic.
26 You do have some hopes for the future. You want stable employment. You are worried about the prospect of deportation.
27 You have no prior convictions and I take that into account. I have mentioned the other offences that you have committed in or around the same time frame so it cannot be said that this offending is isolated. It is not.
28 I have not set out all of the details of your background. There is no need to. I simply state that no one would choose such a background as the one that you had. You were not really dealt much of a hand in life. You lost your parents and an uncle and I am sure saw much that no child should have ever seen.
29 It was a background of trauma and dysfunction and disadvantage and I infer, distance from positive role models. You just did what you had to do to survive in a setting where violence was, to an extent, normalised.
30 An offender's individual circumstances will always be of importance to a court. Your background was, as I have said, one of significant deprivation and disadvantage. It is just too simplistic to say “well that was all those many years ago.” The effects of childhood deprivation and trauma do not diminish with the passage of time. They are not just matters of historical significance that can be shrugged off or ignored. The case law recognises that they leave their mark. Of course they do. Our background shapes us.
31 So it is your background and of course it is relevant to my task. It may explain a fair bit about the trajectory of your life. About the poor decisions that you make and have made. You did not have the usual positive role models such as a mother and father, you had much exposure to traumatic experiences and disrupted and minimal schooling. Then migration as a child to a very different country with a different culture and language.
32 It is not a background that in any way equipped you for adult life. However, as important as your background is, it does not lock a person into a pre-determined course. You have always had choices; you have just not exercised them well, which is probably again not that surprising, given that background. Interestingly, notwithstanding your background, you stayed away from offending and the courts until 2019.
33 You probably heard discussion in the course of the plea about a case referred to by the parties as Bugmy and you will not have appreciated what that related to.
34 That case and other cases make clear it will always be a matter of what weight to attribute to evidence of a disadvantaged background. The cases stress that social disadvantage will not attract the same weight in every case or in the same way. Sometimes it might lead to reduction, or even a substantial reduction in moral culpability, and also sizeable reductions in the weight given to general and specific deterrence. Sometimes it might be enough to take it into account in a general way, without those sizeable reductions. It does not, by the way, all head in one direction. It can lead also to greater weight being given to the protection of the community.
35 The weight to be given to disadvantage will depend on the nature and the extent of the disadvantage, the nexus, if any, with the offending, but also the nature of the crime and the relative importance in a particular case of sentencing considerations including deterrence, community protection and rehabilitation (see the case of Terrick[3]). It is clear though from the case law that where there is a strong nexus then the mitigatory value will rise (see the case of Snow[4]).
[3]DPP v Terrick [2009] VSCA 220 (“Terrick”)
[4]DPP v Snow (a pseudonym) [2020] VSCA 67 (“Snow”)
36 Much greater weight will be given where there is a direct nexus, however these Bugmy[5] principles, as they have come to be called, do not depend on the existence of some proven direct nexus. Indeed, it will never be that easy to directly link events that are sometimes many years if not decades removed from each other.
[5]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (“Bugmy”)
37 Plainly, here I accept there can be some real reduction in your moral culpability on the Bugmy principles. Also some reduction in the weight given to the other retributive purposes of sentencing.
38 I give full weight then to your background as that phrase is used in the case law in cases such as Bugmy, Marrah[6], Snow and Terrick.
[6]Marrah v The Queen [2014] VSCA 119
39 I accept that disadvantaged background is something that can be taken into account in this case in the ways urged upon me by your counsel. It has not been an easy background at all and I take it into account as far as I am able to.
40 I turn now then to consider the other matters that have been raised by your counsel.
Guilty plea
41 I turn firstly then to your plea of guilty. You have pleaded guilty at an early stage. You have taken responsibility for this offence. There was no committal in your case and no trial. No witnesses have been called in your case. Being called as a witness can itself be a traumatic experience. Well, it has not happened here.
42 You have facilitated the course of justice. You have taken this early responsibility for your offending by pleading guilty. You have also done that in the course of the disrupted operations of this court arising from the response to the COVID-19 virus. I have regard to that as well. It is worthy of some extra weight.
43 The community has been saved the time, the cost and the effort associated with the conduct of a trial up in this court. I take these various matters into account in mitigation. I must pass a lesser sentence upon you as a result.
Remorse
44 I turn then to the issue of remorse. Your counsel was not arguing that there was full remorse here. He argued that there was only some limited remorse to be inferred from your early plea and your discussions with Dr Anderson. A guilty plea is often but not always indicative of some level of remorse. Dr Anderson did not even discuss this offence with you so there is nothing in those reports which touch directly on that question. Your counsel asks me to extrapolate from the remorse expressed in relation to other offences that you feel the same way in relation to this offence. Well, that is no more than speculation, especially where it is claimed that you do not even remember this offence. I have really not spoken about your police interview but in that interview, you denied the offending. There are no expressions of remorse to be found within it. Nor for that matter do I accept for one moment that you have no recollection of this offence. The interview is not in any way an aggravating matter but there is nothing by way or remorse contained within it. There is mention of remorse in your sister’s letter. The way you feel about letting down your sister is also mentioned in the reports of Dr Anderson. I am sure you are sorry to have ‘blown your chances’ and that you feel sorry about that but that is not remorse for the offence.
45 Having considered all of the materials, I do accept your counsel’s submissions. I am prepared to find the presence of some remorse and I take that into account in your favour.
Rehabilitation
46 I turn now to your prospects of rehabilitation. I will come back to discuss your youth as it seems to me that youth and rehabilitation are very much linked.
47 You have no formal prior criminal history. No past Court orders in the lead in to the offending. So you are not a person, for instance, who has ignored a community corrections order. You have not had one.
48 However, you were offending all over the shop in this relevant period and it is a bit hard to know why. The matters dealt with on the 10 December 2020 involved one attempted robbery, one attempted carjacking, two robberies and a number of Bail Act offences. There is also the robbery the subject of the appeal that was abandoned before me.
49 Your sister points to outside influences and being led astray.
50 Regrettably you have committed a serious enough offence here and it was not a once-off when I look at that LEAP history, marked as Exhibit B.
51 You do have some support in the community. Your sister's letter is useful.
52 You have no employment history or any real job skills. You have a modest educational achievement level and long-term issues with alcohol and drugs. You have the complex trauma condition spoken of in the report and that disadvantaged background which will not just evaporate overnight. These things cast a bit of a shadow over your future rehabilitation.
53 You are now in prison for the first time. I know when strictly viewed, the chronology does not support that statement. You have been in and out of prison as the chronology suggests. But I believe the series of events leading to the remand, the revocation of bail, the sentence, the appealed sentence, it really is to be treated by me globally as your first exposure to prison.
54 It has been a bad time to have been there with COVID-19 restrictions and isolation from your family here and overseas. You have been there for a sizeable enough period already and it has not been easy. You worry about deportation. All of this will have some role in deterring you into the future, as will the sentence that I will soon impose.
55 You are still young, and I will shortly mention the way in which youth is treated by the courts. It is sufficient at the moment to say that with youth comes hope for positive change. I certainly will not write you off. Your sister does not and she has written a strong reference on your behalf. She says you are capable of reforming. I believe you are as well.
56 Given your age and the absence of prior criminal history, I am prepared to find that you have quite reasonable prospects of rehabilitation, if you can change the way that you live. It will not be easy. Your prospects will depend on your ability to abstain from drug use altogether in the future. If you keep using drugs and mixing with those who do likewise, your prospects will plummet. You have a choice and if you choose wisely and make real efforts, you have real prospects of rehabilitation and building that better life your sister speaks of. I hope that you can.
Youth
57 As I said a moment ago, youth and rehabilitation are closely connected. You were only 21 at the date of the offence. You are 22 now, 23 in a few months and you are then still young. You have no formal prior criminal history though this worrying flurry of offences which I have been informed about. It is your first experience of prison. Your counsel relies on your youth and referred the Court to the case of Azzopardi[7].
[7]Azzopardi v R [2011] VSCA 372
58 The principles which apply to the sentencing of youthful offenders as set out in cases such as Mills[8] and Azzopardi are well known. I am going to restate them all.
[8]R v Mills [1998] 4 VR 235
59 The law usually treats youth as a matter of importance. Young people are more prone to making mistakes or to acting without deeply thinking through the consequences of their actions. Would you really have been thinking through the consequences of potentially being deported? I am sure you were not.
60 Young people are more likely to be caught up in group settings, where peer group pressure or bravado might have a role to play. Your sister hints at that sort of issue. Young people are clearly less mature. For these and other reasons, they are generally less culpable and the benchmark for sending a youthful first offender to prison is understandably a high one.
61 More weight is devoted to rehabilitation and less weight is usually given to punishment and deterrence.
62 The law also recognises the potential corruption of a youthful offender which may occur in a prison setting. As that may be damaging to rehabilitation, it is never a step taken lightly or without some sense of regret.
63 I spoke of the link between youth and rehabilitation. The law recognises the fact that young or youthful offenders are more able to be rehabilitated. They are less set in their ways. The community has a sizeable interest in the rehabilitation of any offender, but more so a youthful offender. At the end of the day, it can so easily be forgotten but it should not be, the community does not need to be protected from someone who is actually rehabilitated.
64 You are a youthful offender. That is undoubtedly a matter of real significance to my task. The weight to be given to youth and rehabilitation will vary from case to case. It is not just automatically applied the same way in every case. Generally speaking, the more serious an offence, the less weight will be given to youth and rehabilitation, and that is because more weight is devoted to some of the other purposes of sentencing. I will not lose sight of your youth. It is important here. There are quite realistic prospects of rehabilitation here, but this was a serious enough offence.
COVID-19
65 I turn to the implications of the COVID-19 pandemic. The COVID-19 virus and the response to it by those running the prisons has undoubtably increased your prison burden. You have been in custody for a significant enough period which overlaps with the periods where there was the greatest impact upon prisoners. It really matters not one jot that this related to a period where you were held in relation to another sentence. Prison has been a more stressful environment and you have been there. Social distancing has not been easy. I am sure there has been worry about catching the virus in such a setting where there is really no level of autonomy.
66 For a very large portion of the period you have spent in custody, there would have been no access to in-person visits and a more limited range of courses. Even when restrictions lifted, I was told that you had really received no visitors. I do not know why your sisters do not visit you.
67 As to what lies ahead in the community or in prison, it is very hard for me to know. That uncertainty is not that easy for a prisoner and I take that into account.
68 The impacts of the virus upon prisoners has been lessening, with the resumption of visits and courses.
69 The events of the last two or three months with the circuit-breaker lockdown and the temporary suspension of visits which that produced shows that, whilst we have been travelling very well in the community, it is not that difficult to see how restrictions may yet start up again. Indeed since I last saw you, you now appear before me wearing a mask and from 6 o’clock last night as a result of a COVID-19 outbreak in the northern suburbs, we have been plunged into further restrictions. It is impossible for me to know how that is all going to play out. So, as I say, it is not that difficult to see how restrictions may yet start up again for prisoners.
70 There will be some ongoing anxiety amongst prisoners as to how they will fare in the future. I take that into account as well. I cannot know if the limitations will start up again and I am not allowed to speculate on that score.
71 But I do take into account the impact of the virus in the ways urged upon be by your counsel.
Deportation
72 Your counsel in his written submissions spoke of your “automatic” deportation should you receive gaol terms totalling a year or more. Well, that was overstating the position. He also recognised that to this point you have previously received sentences of eight months and four months, not to mention the pre-sentence detention that would be declared in this matter which would be the subject of a sentence itself. Those amounts total more than 12 months and will trigger the automatic cancellation provisions, even though none of them individually is greater than 12 months. He relied upon the risk or prospect of deportation in the two ways contemplated by the case law, namely as increasing your prison burden, as well as having the additional punishment represented by the loss of opportunity to continue residing in this country. He placed reliance on these matters, saying that the burden is heavy for you given that you have lived in Australia since you were about 16, coming here to live with your sister. You had no parents and though you still had some relatives in Somalia including two sisters, you have made your life here. I was told by your counsel that you will apply to have any visa revocation decision reconsidered.
73 He conceded that there was a level of speculation as to whether you would actually be deported.
74 I take into account the many cases dealing with the relevance of the risk of deportation including the Guden[9] line of cases considered in cases such as Allouch[10] and discussed in the case of Loftus[11].
[9]Guden v The Queen [2010] VSCA 196
[10]Allouch v The Queen [2018] VSCA 244
[11]Loftus v The Queen [2019] VSCA 24
75 I will work on the assumption that you will have your visa cancelled automatically, but you will have rights in relation to having that decision reconsidered. You intend to exercise them. In terms of those review powers, I have no idea at all how they will play out. It would involve pure speculation on my part. Your counsel in fact placed before me the Sentencing Advisory Council paper headed 'Deportation and Sentencing' (from November 2019), which disclosed, surprisingly actually, that a decent enough proportion of those who have their visas cancelled automatically have that decision overturned. The success rate at least in the years covered by that research was between 34 to 41% (see paragraph 24). I raised with the parties the Visa Statistics kept by the Department of Home Affairs from the last calendar year so that they would have the opportunity of addressing me on this topic with those updated figures. Those figures disclosed that 37 per cent of those who sought reconsideration were successful. These figures and those dealt with by the Sentencing Advisory Council do not, as I understand it, include those who have had their reconsideration refused who then review the matter in a tribunal, and then succeed.
76 So where will this all end up for you? Who knows? This uncertainty will of course be disturbing for you as you serve out this sentence.
77 If your visa is cancelled, as one would expect it would be, you would then be looking at movement from prison, not back out into the community, but to an immigration detention facility with the spectre of deportation at the end of that process. It is not too palatable a thought.
78 I am then prepared to accept your counsel’s submissions and to find an increase in your custodial burden arising in this case. There will be much uncertainty in your mind as to what lies ahead. It will not be easy.
79 As to the claim that you will lose the opportunity of settling here, I really cannot know if that will be the ultimate position or not. Your counsel concedes that is the position. As I have said, if your visa is cancelled, you will have the rights to have that decision reconsidered and you do intend to exercise them. If that process goes against you, in some settings, there is then a right of review to a tribunal. You came to this country whilst still a minor and have lost your parents when very young so you surely have some factors that may excite the sympathy of those who will be asked to reconsider any revocation, or potentially review that decision, if the reconsideration goes against you. There is a large degree of speculation in reaching any view as to the likelihood of actual deportation for the reasons that I have spelled out. However I do not ignore this matter. I do accept that, if it occurs, it will be a very significant blow to you. The prospects of being disconnected from this country would be genuinely worrying for you. No doubt these aspects would feature in any request for the humane reconsideration of cancellation of your visa.
80 I give some weight to each aspect of the deportation submission made to me by your counsel. However, I cannot let the increased burden and the risk of actual deportation dominate my task. Nor is it part of my role to structure a sentence in an endeavour to avoid the consequences of the Migration Act. I have to pass an appropriate sentence, not to engage in devices, and if that results in cancellation of your visa, so be it. As I have already said, it seems clear that whatever I do, that step of visa cancellation would be taken given the existence of the two past sentences that I have no control over.
Verdins; Reports of Dr Anderson
81 Your counsel had filed two reports from Dr Laura Anderson, a neuropsychologist. He readily accepted that there were some problems with those reports in that the first was commissioned for offending other than this offending with the specific request that the author not discuss this matter. The author expressed a range of opinions in that first report. She, for whatever reason, had not spoken to you at all in the lead in to the second report. She described not having had the opportunity to discuss the current matter. Well, there had been over four months. I do not know why she did not speak to you but she did not and clearly, she should have. But she then engages in that second report in a range of hypotheses as to connections between your “condition” and this offence. It is totally unsatisfactory. Anyway, your counsel was asking me to extrapolate from the earlier report and those conclusions in that report as well as from the addendum, and to conclude that there was a realistic connection between the complex trauma and this offending. He conceded the problematic issues presented by intoxication by alcohol or drugs, for though that was very much to the fore in the expert's report, it was not being relied upon in any mitigatory fashion by your counsel. For these reasons, though conceding the problematic aspects of this evidence, your counsel argued for some very modest weight to be given to the first and the third limbs of Verdins.
82 I am not going descend to the detail of those lengthy reports or quote from them. They are more than useful in setting out your disadvantaged background. I do not doubt that you have the clinical features of complex trauma. Of course, I take that into account in a general way. I also take it into account when extending to you the mitigatory effect of the Bugmy line of authority that I have spoken of. So too is there reduction in your culpability flowing from the very fact of your youth. I give that weight as well. But alcohol and drug use and the disinhibiting effect of either are very rarely mitigatory and they are not here. Your counsel specifically disavowed that aspect of the written submissions and hence those aspects of the reports dealing with the drug and alcohol use being a maladaptive coping mechanism. The reports also comment on your real anxiety as to the risk of deportation and I have regard to that. So I want to make it plain, I do not ignore the reports at all. They are in fact useful and I take them into account.
83 I am meant to engage in a rigorous examination of the materials relied upon in this Verdins area. Here I have a person with a significantly disadvantaged background. I give it full weight. You have a psychological profile of complex trauma. You misuse alcohol and drugs. Even the connection between that drug and alcohol use and your past background or psychological profile and this offending is speculative. Lots of people who offend are disinhibited by drugs and alcohol. Were you on this day? Who knows? There is not any account available to me or to the author of the reports. You denied the offence in the police interview and there is no other account from you.
84 The offending is not that difficult to understand. You were taking property. Why were you? What connection did this offence have with your psychological profile? What connection did it have with drug or alcohol use? What connection did it have with youth or peer group pressure or bravado? Your counsel accepted that disentangling the multiple causes was also problematic here, even if satisfied that there was some realistic connection.
85 I am not satisfied that I can find on the balance of probabilities any realistic connection between your condition and this crime. It follows that I do not believe it is open to give any weight to either of these principles raised. As I have said though, I take into account your psychological profile in a general way and also in a Bugmy fashion. That together with your youth attracts some real reduction in culpability. Your youth alone leads to some moderation of general deterrence as more weight is extended to rehabilitation in such a setting with a 22-year-old with no formal prior criminal history.
General remarks
86 I take into account the nature and the gravity of the offence. Your counsel concedes the seriousness of the offence. It Is not an offence with any level of planning. It was obviously spontaneous but still serious. It was after all an armed robbery. You knew your offsider had a taser and used that fact and the group dynamic to take what you wanted. You were not the initiator of contact but you committed this armed robbery. Your counsel points to the absence of certain other weapons. Well, I am sentencing you for what you have done, not for what you have not done or what you might have done, so the absence of another weapon is not a matter in mitigation. It was not a firearm, real or imitation, nor a knife or plastic drink bottle. It was what it was. A functioning taser which was wielded and deployed, though very happily, it did not strike your victim. It was an in-company offence, a spontaneous enough soft target armed robbery committed upon a totally innocent victim on a public street in broad daylight. It was miles from the most serious category of armed robbery but does not fall at the lowest level either.
87 You have no formal prior criminal history and have pleaded guilty early and there is some remorse and as I have said, youth is on your side.
88 I have also said, there is some reduction in your culpability owing to your youth and your disadvantaged background.
89 Sentencing always involves the balancing of a number of purposes or principles.
90 I have to take into account your prospects of rehabilitation. I believe you have quite realistic prospects of rehabilitation.
91 I must consider the need for specific deterrence. That is the need to deter you from committing crimes in the future. Given your youth and lack of formal prior criminal history, I can moderate the weight that I give to this purpose as well as to community protection. I cannot ignore them but do not give them the sort of weight they may be given in a different case, for instance an older offender with a track record of non-compliance with court orders and relevant prior history. You have none of those things but you do have the worrying spate of offending in the same or similar time frame.
92 I still must deter you and consider protecting the community from you but, as I say, those principles are moderated here.
93 I must also denounce your conduct and punish you justly and proportionately.
94 I also have to deter others. That principle, which is known by us lawyers as the principle of general deterrence, is always an important enough consideration in this sort of case. There is a real need to deter other likeminded people from committing such a serious offence as armed robbery.
95 Your youth can lead to some moderation of general deterrence, as it does to all these purposes actually. Rehabilitation gets far more weight in this case than it would for an older or more criminally experienced offender. General deterrence is still of some importance in this case, one involving, as I have said, a nasty enough soft target armed robbery in a public street in broad daylight.
Current sentencing practice
96 I have to take into account a large number of matters including the maximum penalty and the impact of the crime.
97 I must also take into account the nature and the gravity of the offence.
98 I am required to pay regard to current sentencing practices. That is one of the matters that the court must have regard to. It is not a controlling factor.
99 I have looked at the relevant snapshot from the Sentencing Advisory Council; being Snapshot No. 236 from April 2020 for the crime of armed robbery.
100 The statistical material discloses that when prison was imposed, sentences ranged from one month to 8 ½ years. Where prison was selected, the most common sentence for armed robbery fell in the band between 3 years to less than 4 years.
101 I have looked at overviews of sentences in the Judicial College of Victoria’s new Sentencing Manual dealing with armed robbery. See 6.2.1 (Court of Appeal) and 6.2.2 (County Court). As to the Court of Appeal matters, I have looked at the less serious class of offences where sentences of less than 5 years were imposed.
102 Statistics and sentences imposed in other cases have real limitations. They are completely silent on the many matters of aggravation and mitigation which would usually explain a particular sentence.
103 It is not my job to sentence you based on what has been the most common or average sentence in the past.
104 Sentences imposed in other cases are not precedents. They are of very limited use. Every crime is different and so too is every offender. There is also no such thing as one correct sentence. What is fundamental to my task is to sentence you for your crime.
105 Imprisonment is always a disposition of last resort for any court. If there is any other option open to the court, then it must be selected. That is the law. Your counsel conceded the inevitability of prison here. The issue really was whether it could be combined with a community corrections order and that depended on whether you could establish that you fell within one of the exceptions in section 5(2H) of the Sentencing Act 1991.
Section 5(2H)(e)
106 Your counsel submitted that there were substantial and compelling circumstances that are exceptional and rare and that justify not imprisoning you. That is the exception set up in section 5(2H)(e). If not falling within it, I have no option but to confine you and not in combination with a community corrections order. Prison would beckon as you are too old for detention in a youth justice facility.
107 The parties cited the case of Haberfield[12]. It was one of my decisions where I grappled with similar provisions in a slightly different factual setting.
[12]DPP v Haberfield [2019] VCC 2082.
108 I must pay attention to the words used in the sub-section. They are not there by accident. I must also apply other provisions of the Act, which give guidance as to the interpretation of those words. So, I must firstly consider the actual words used in the provision. The bar is raised very high here by the words actually employed in the legislation. Not just substantial and compelling. That was a very high bar, as cases interpreting that older provision made clear. See the case, for instance, of Hudgson[13].
[13]DPP v Hudgson [2016] VSCA 254
109 This is a very strict provision with a very high threshold. It is and is designed to be a very stringent test. See the case of Farmer[14]. I cannot just ignore the additional words, 'Exceptional and rare'. They have been added in to make it even harder to establish.
[14]Farmer v The Queen [2020] VSCA 140
110 In determining whether there are substantial and compelling circumstances, section 5(2HC) tells judicial officers to pay greater regard to general deterrence and denunciation than to other sentencing purposes and to give less weight to the personal circumstances of the offender. The court is told not to take into account previous good character other than the absence of prior convictions, not to take into account an early plea of guilty or prospects of rehabilitation. These are very significant and quite deliberate alterations to the way in which a Judge will usually perform the sentencing task. That together with section 5(2L)(a) signals Parliament's stated intention that ordinarily for a Category 2 offence, a term of imprisonment is to be imposed, or at least confinement, and not in combination with a community corrections order.
111 Your counsel points to your youth and disadvantaged or deprived background, your lack of formal prior criminal history, the risk of deportation and the heightened custodial burden arising from the COVID-19 setting, as well as from the prospect of deportation.
112 Youthful offenders, even those with no criminal history, are quite common. So too, regrettably, offenders with backgrounds of significant disadvantage. We see them all the time. The risk of deportation is far from uncommon. I would have considered that matter in more than a dozen cases myself inside the last 12 months and I am but one of the many judges sitting in crime in this Court. At this stage, the worst of the impacts of COVID-19 upon prisoners seems to be behind us.
113 The case cited by both parties (Farmer) spells out just how high the bar is.
114 I do not believe that any of the matters raised on your behalf either individually or in combination rise to that level of being substantial and compelling circumstances which are exceptional and rare and which justify not making a custodial order here. I am not satisfied on the balance of probabilities that the exception is made out.
115 Your counsel conceded that if that exception was not made out, the court would move to fix a head sentence and a non-parole period, conceding that a straight sentence would not be adequate or appropriate. I agree.
116 I make plain that the likely cancellation of your visa cannot intrude on my decision as to whether or not to fix a non-parole period or the duration of that non-parole period, no more that it could have intruded on my ability to consider releasing you on a community corrections order, if that possibility arose on the materials. In those settings, whether considering the issue of a non-parole period or the ability for you to meaningfully comply with a community corrections order, I must ignore the likely cancellation of your visa.
117 Other than in a couple of very rare situations set out in section 11 of the Sentencing Act, I am required to fix a non-parole period whenever I sentence someone to a period of two years or more. Those exceptions do not apply in this case. A sentence in excess of two years is required here, so I must, as a matter of law, fix a non-parole period.
Totality
118 I pay regard to the principle of totality of sentence. I have regard to your time spent in custody on this and the other matters. In further recognition of this principle, I am also going to run this sentence concurrently with your existing sentence.
119 I have reviewed the effect of the sentence I am about to pronounce to ensure it is not crushing upon you and that the outcome is commensurate with your overall criminality.
Sentence
120 If you would stand up please, Mr Fariah.
121 On Charge 1, the only charge before me, the charge of armed robbery, I convict and sentence you to two years' and two months or 26 months' imprisonment. That is the only sentence and is therefore the total effective sentence.
Non-Parole Period
122 I fix a period of 12 months during which you will not be eligible for release on parole.
Section 18
123 There are 226 days of strict section 18 pre-sentence detention to declare here. Other periods that you have spent in custody have been served pursuant to your past sentences. I have regard to that past time in custody as well, when selecting both the head sentence and the non-parole period. But you get actual direct credit for the 226 days you have served in relation to this matter and I make that declaration under section 18 of the Sentencing Act.
Section 6AAA
124 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of this offence by a jury, I would have convicted and sentenced you to three years and eight months' imprisonment. I would have fixed a non-parole period of two years and four months.
125 I do not believe I really need to specify directly because in the absence of me specifying it, this sentence would be served concurrently with the existing sentence pursuant to the provisions of section 16 but to avoid any doubt, I am making it plain that this sentence is to be served concurrently upon your existing sentence.
126 Let me just see if there are any other matters.
127 Were there any ancillary orders on this matter? I do not think there were, were there?
128 MS JOHNSTON: No, Your Honour.
129 HIS HONOUR: No.
130 MS JOHNSTON: There were no ancillary orders.
131 HIS HONOUR: Any other matters from either of you?
132 COUNSEL: No, Your Honour.
133 HIS HONOUR: All right. You will go down to see your client downstairs and explain, firstly, what it is all about and I think you understand that but also his rights in relation to this?
134 MR HERRERA-BURCHIELLI: Yes, Your Honour.
135 HIS HONOUR: I mean he gets the credit obviously for the pre-sentence detention. I have fixed a relative at least to the head sentence a very low non-parole period and, anyway, you will explain all these things to him and his rights in relation to this sentence.
136 So your solicitor will be down to see you downstairs then, Mr Fariah, to have a chat to you downstairs. So if Mr Fariah can be removed then? Thank you.
137 I am just told that Exhibit B was the criminal history I was provided in hard copy but if that can be e-filed as well please.
138 MS JOHNSTON: Certainly, Your Honour.
139 HIS HONOUR: Yes. All right. All right. I have signed that formal order.
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