Director of Public Prosecutions v George

[2022] VCC 1235

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00021

CR 21-00164

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW GEORGE & SIMON GEORGE

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JUDGE:	HIS HONOUR JUDGE M.P BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	02 August 2022
CASE MAY BE CITED AS:	DPP v George
MEDIUM NEUTRAL CITATION:	[2022] VCC 1235

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Fargher
For the Accused A. George For the Accused S. George	Mr P. Monagle Mr R. Backwell

HIS HONOUR:

1On Indictment C2013965.1, Andrew George, you are to be sentenced for one charge of armed robbery, one charge of being  a prohibited person in possession of a firearm and two charges of possessing a drug of dependence.  The applicable maximum sentences are 25 years imprisonment for armed robbery, 10 years imprisonment for the firearm offence and on the drug possession charges,
12 months' imprisonment on Charge 4 and a fine of five penalty units on
Charge 5, which is possession of cannabis.  Both you and your brother,
Simon George, are to be sentenced for Charges 4 and 5. 

2Simon George, you are to be sentenced for one charge of robbery (maximum sentence 15 years imprisonment),  one charge of damaging property (maximum sentence 10 years imprisonment) and,  independent of your brother, two charges of possessing a drug of dependence, Charges 6 and 8;  Charge 6, being cannabis, has a maximum fine of five penalty units, Charge 8, a maximum sentence of 12 months.  As I have stated you are also to be sentenced on Charge 4 and 5, possession of a drug of dependence. 

3There are also summary offences for sentence, Andrew George, two charges of possessing a controlled weapon;  similarly, Simon George, two charges of possessing a controlled and prohibited weapon. 

4You both pleaded guilty to these offences before me on 20 April 2022.  When interviewed by police in October 2020 you gave what I find to be honest accounts of your offending.  This includes that you believed that your victim had tricked or intimidated a female friend out of $100.  Your victim, Muhammed Naeem, was working as a share driver with a business or service called Didi; similar, I was told, to an Uber driver.  In January 2021 your committals went by hand-up brief, after which you pleaded guilty.  Your plea hearings in this court were adjourned in September and December because of the impact of COVID-19 upon the system.  You then came before me in April.

5You receive the benefit of your early pleas of guilty and that high level of cooperation in the investigation and proceeding.  You have facilitated the interests of justice.  Your pleas have also accepted responsibility and expressed remorse.  Assistance to the interests of justice is greater given the impact of the COVID-19 pandemic on the criminal justice system. 

6At your plea hearing,  which ran on 20 April and 21 July,  Ms Fargher for the Crown tendered an amended written prosecution opening, CCTV footage of the armed robbery and the  victim impact statement of Muhammed Naeem.  She provided an outline of submissions on sentence.

7Mr Monagle for you, Andrew George, tendered the forensic psychiatric report of Dr Asiri Rodrigo dated 30 August 2021, a number of medical,  psychiatric,  neuropsychological and other like reports detailing over time your mental health conditions and effects, documents related to NDIS support and assistance to you, the Court Integrated Services program report of Michelle Saker (your case manager on that bail program) and a letter of character reference by your parish priest, Dr George Farag.  On 20 April I adjourned the plea to enable further psychological evidence to be sought.  On 21 July Mr Monagle tendered the forensic psychological report of Tim Watson-Munro dated 6 July 2022.

8Ms Strugnell for you, Simon George, tendered the psychological report of
Kim Dowse dated 21 May 2021, the forensic psychological report of David Ball of the same date, a further bundle of medical material including paediatric reports which,  similarly to Andrew George detail over time your medical and mental health conditions and  effects, and the character reference letter of Father Angelos Raphael dated
6 December 2021.  There is also the letter of your mother, Amany Aboltins,  and other material related to drug counselling or treatment and for anger management.

9The circumstances of your offending are comprehensively set out in the tendered Crown opening, which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put on your behalf not challenged by the Crown, and by the principles stated in such cases as The Queen v Storey on finding of  fact in plea hearings.

10Shortly before 2 am on 6 September 2020 Muhammed Naeem received a job to deliver a parcel from you, Simon George, in Murrumbeena to your friend named Amy in Noble Park.  It was prepaid.  At Noble Park he drove Amy as a further job to what I presume is a nearby ATM and back to her home.  She paid him $100.  It is described in the Crown opening, consistent with
Muhammed Naeem's explanation,  as a tip. 

11I accept the explanation you both gave to the police that you were told and formed the belief that he had in some way forced her to pay that.  It appears that no police statement has been taken from Amy. 

12You decided to take action.  By 4.15 am you had located and booked Muhammed Naeem for a parcel delivery.  You, Andrew George, made and cancelled over 20 bookings with other drivers to achieve this.  Muhammed Naeem picked you both up in Hughesdale and drove at your request to a nearby BP service station.  He left you in the back seat of his car and went into a McDonald's store opposite.  This is suggestive of concern already on his part.  He recognised you,
Simon George, from the earlier parcel delivery.  He locked himself inside a toilet cubicle. 

13You, Simon George, damaged the back seat of the car with a key.  You then both followed him into the McDonald's store and committed, respectively, the armed robbery and robbery against him.  It is captured on CCTV footage.  You were able to open and forced him out of the cubicle.  You confronted him,  I would accept about the $100 given to him by your friend.  He was cornered, assaulted and robbed.  For a time during this you, Andrew George, threatened him with a metal rod.  It is accepted that your brother did not know of your decision to do so.  It was not part of your agreed plan.

14Muhammed Naeem gave over his phone and $100;  I have presumed the $100 or the equivalent of that given by your friend.  This is consistent with your explanation of what motivated the offending.  However, you also took his phone and had damaged his car.  The phone was found discarded nearby.  As to injury, Muhammed Naeem suffered a minor scratch to his hand and bruising to his rib area.  You had done little to disguise yourselves.  The McDonald's store attendant observed the offending on CCTV and watched you leave.  You, Andrew George, had located your victim by booking drivers, it seems, under your own name.

15Muhammed Naeem was of course badly frightened.  His victim impact statement describes the effects on his life.  He suffers fear, loss of trust, he is disillusioned and receives treatment for psychological conditions of anxiety and depression.  He is angry.  He left his job as a driver and has therefore lost income, resorting to his savings.  He sleeps badly and has nightmares and disturbing thoughts about the offence against him.  There has been impact on his studies and social life.  I am not complete.  There has been significant victim impact which must be taken into account in sentencing you. 

16The firearm charge (Charge 7) drug possession charges and the summary charges related to weapons are in respect of items found when police searched you and your residences on 16 October.  Variously they are a pen pistol,
knuckle dusters, two knives, a taser and quantities of drugs consistent with use.  The pen pistol was found at your residence, Andrew George.  You are a prohibited person because of prior offending.  The pen pistol was not capable of being fired without replacement of parts.

17I make the following findings about the circumstances of offending;

(1)    I accept that you formed the belief stated to police that your friend had been tricked or forced to give over $100 and which motivated your offending.  This is consistent with your behaviour leading to the robbery and at the robbery.

(2)     I make no finding that your victim did so extract the money from her.

(3)     The Crown opening is an agreed summary of facts.  This was made clear to me a number of times.  There is here a temptation  to speculate  that the full story has not been made very clear. However I do not speculate. 

18You are brothers respectively aged, you Andrew George 30 years, and you Simon George 25.  You were born in Melbourne to Egyptian parents.  Your father left the family when you were children.  The extended family, including your grandparents, appears to be close.  You both live with them.  Your upbringing was hard, featuring the violence and substance abuse of your father and also difficulties socially and at school.

19Andrew George, after school at which you appear to have done well academically, you began a software engineering course at Monash University.  That changed to an information technology course and TAFE certificate courses in finance.  You began using cannabis in your late teenage years.  That converted to methylamphetamine and heroin at 26.  You do not claim to have been using at the time of offending.  You state yourself to be now drug free.  You started to Dr Rodrigo that you do not recall being unwell psychiatrically or using drugs at the time of the offences.  You did not claim psychotic symptoms directed at the victim.

20Simon George, you seem to have had social behavioural difficulties and suffered bullying at the schools you attended.  You left at year 10 and left the family home at 17.  You began using cannabis in early teenage and heroin from about 17.  You also state that you are now drug free.

21The expert and medical evidence before me indicates that you have suffered and received treatment for significant mental health and neuropsychological problems from an early age. 

22Particularly you, Andrew George, have been diagnosed with attention deficit, hyperkinetic disorder from six years,  Tourette's Syndrome from nine and from late teenage schizophrenia and/or schizoaffective disorder.  In your mid-20s, 2016, you were the victim of a very serious attack in your home, suffering stab wounds, head injuries and requiring long term hospital treatment.  Unsurprisingly, you suffer post-traumatic stress disorder as a result.  Mr Monagle made the point that from this time there was an escalation in your drug use, starting to take methylamphetamine and heroin  You began offending.  Over time there have been many admissions to psychiatric hospital, at least some under Involuntary Mental Health Act orders.  Dr Rodrigo noted 11 admissions.   You are now supported by NDIS. 

23Simon George, since childhood there have been diagnoses including anxiety disorder, depression and a level of cognitive dysfunction.  That has been described in 2009, at eight or nine years, as unevenly developed with more recently described effects upon memory, learning and lowered inhibition.  There is a present diagnosis of cannabis and opiate use disorder in early remission.  You began seeing mental health practitioners at three and that has continued throughout childhood.  You attended a number of special schools.  There was a suicide attempt at 11.  You have been badly affected by the 2016 attack upon your brother and by friends suicides.  NDIS support for you is recommended. 

24The Verdins principles are raised in respect of you both and this was a major focus of the plea hearing.  As to both, in conscientious and helpful submissions Ms Fargher conceded relevance of those limbs moderating general deterrence and raising the additional burden of imprisonment.  She put that there can be some reduction in moral culpability but very limited. 

25As to impact upon your moral culpability there is some expert opinion before me stating that  for example, what can be called impaired judgment.  However, I find that lacks specific causal explanation in terms of your mental health conditions and the circumstances of offending.  There was a demonstrable element of planning or preparation to your crime.   I do not find that the case of The Queen v Brown raised by Ms Strugnell has strong or specific relevance.  I find,  consistent with Ms Fargher's submission some limited reduction of moral culpability.  Your respective mental health conditions moderate the need for general deterrence.  I found that there would be a considerable additional hardship in prison because of your mental health.  This has become an important consideration for me.  Particularly as to you, Andrew George, your experience in remand and the symptoms of psychotic illness which arose emphasised the risk of deterioration of that illness in custody.  I refer to the forensic psychological report of Dr McGregor.

26Both of you have criminal history. 

27Andrew George, between November 2016 (when you were aged 25 and it seems after the home invasion attack upon you) and  November 2019, there are a number of appearances including for dishonesty, some violence and related to drugs.  Non-violent, dishonesty and drugs seem to predominate.  There is a November 2016 adjourned bond for possessing a controlled weapon.

28Simon George, between October 2015 (when you were 18)  and September 2019 there are multiple appearances,  mainly for dishonesty and related to drugs.  There is at least one controlled weapon offence. 

29I bear in mind in respect of both criminal records a presence of some duplication common in such documents;  for example, because of earlier orders.

30You were both remanded upon being charged.  Andrew George, you served 39 days before being granted bail.  Simon George, you served 97.  I accept that custody was difficult, more so, for example, because of the impact of the COVID-19 pandemic upon the situation of prisoners.  Particularly and as reported in Dr Rodrigo's report, you, Andrew George, suffered a return of psychotic symptoms. 

31You have been on bail respectively for over 20 and 18 months.  There have been the delays in the proceeding I have earlier identified.  You are entitled to point to a level of rehabilitation over that time of delay.  Although you, Simon George, have been fined for theft from a shop committed in April 2021 and you, Andrew George, fined for possession of a drug of dependence, that occurring in August 2021.   I am told that there is no other subsequent offending.  You have each complied with bail over those periods.  You both state that you are now free of drugs.  There is no evidence to the contrary.  You both take relevant and helpful medication;  for example, anti-psychotic medication taken by you, Andrew George, seems presently to be effective.  You are a voluntary patient under the Mental Health Act and are treated and your medication reviewed through St Kilda Road Clinic Area Mental Health Services. 

32The CISP bail report tendered on your behalf indicates that under your bail you have received drug and alcohol counselling.  Support by NDIS continues. 

33You, Simon George, have received general psychological and anger management counselling. 

34The circumstances of this offending are very serious.  A man was tracked down and violently robbed.  Your belief in his misconduct provides no justification or mitigation.  The drugs and particularly the weapons found are also serious aspects.  You both have prior convictions of some relevance.  The circumstances, certainly objectively viewed, make relevant sentencing considerations and purposes of moral culpability,  deterrence, condemnation of the offending and proportionate punishment of it.  The usual sentence would be imprisonment of some substantial period beyond what you have served.

35The Crown's submission on sentence is that a sentence of imprisonment combined with a community corrections order is within range. I agree with that. You have both been assessed for a community corrections order and found suitable. The Crown does not submit that the armed robbery charge is a category 2 offence under s.5H of the Sentencing Act.  I agree with the analysis of that in paragraphs 35 to 37 of the prosecution opening.

36The question has become whether such a sentence should mean your return to prison.  It has been a difficult question given, for example, the serious objectively seen circumstances of offending.  Ultimately I have come to see the well-known case of Boulton to have particular relevance. 

37I take the view that in sentencing you for serious offending like this it is only in unusual circumstances or at least in cases where there are strong reasons for a non-custodial sentence that Bolton has strong relevance.  Here I find such circumstances or reasons which in combination justify a sentence without return to prison.  They include the following:

(1)   Your pleas of guilty and cooperation.  As I stated earlier, that cooperation has been high.  There are indications of remorse.

(2)   The relevance of the Verdins principles,  as earlier stated, especially those related to hardship of imprisonment.  This is an important factor  in sentencing you, Andrew George.  Both of you present as very vulnerable in custody but particularly you, as has been shown.

(3)    Related to this,  I see a return to prison after such long periods an additional hardship to custody.

(4)   Your personal history and circumstances.  The difficulties of your upbringing, while short of the extreme deprivation in cases like Bugmy should still be seen as relevant and, for example, providing some explanation for your dysfunctional adult lives and decline into drug use.  Your mental health respectively is also relevant beyond Verdins.  It is properly a part of the general personal picture and circumstances and must be considered in that way.

(5)    To some extent the circumstances of offending.  That you believed the mistreatment of your friend is properly part of the assessment of the offending circumstances, relevant for example, to a proportionate sentence.  In saying this I bear in mind the authority of R.  v.   Whiteside v Diber,  and also
Ms Fargher's submissions to me that aggrieved retribution is not mitigatory and in fact raises general deterrence is relevant.  General deterrence here is moderated although not eradicated by application of the Verdins principles.

(6)    Delay is relevant.  The offending occurred now almost two years ago.  Particularly you have been on bail for long periods.   The delays have not been your fault.  There are legitimately seen signs of rehabilitation over the time of bail, particularly for example, in dealing more responsibly with your mental health. 

(7)    I have also taken into account the greater burden of imprisonment given the well-known impacts of Covid-19 upon those in custody;  for example, anxiety and necessary restriction.  Also the period of your pre-sentence detention, Andrew George, although on its face short, should be seen as particularly difficult given your mental health and its relapse.

38I have considered parity or disparity between you.  I sentence you, Simon George, for the lesser offence of robbery.  However, the offending was emphatically a joint affair.  It is perhaps ironic that you have served longer pre-sentence detention.  However, I also bear in mind that it is a combination of imprisonment and a community corrections order that is the correct focus.  That includes such punitive aspects as the duration and community work.

39As I have said, it is the combination of these factors (seen individually to both of you) which justify a sentence without return to custody. The principle related in s5(4) of the Sentencing Act is relevant.  I do not see further custody as the only way of sentence addressing the relevant purposes and factors. 

40Accordingly after considering and weighing what I see to be the relevant matters, I sentence you as follows.  Stand up, please, Andrew George.

41Andrew George, on Charge 1, armed robbery, you are sentenced to imprisonment for 39 days.  I declare 39 days of pre-sentence detention.  On Charge 1 (that charge),   charges 4, 5 and 7 of the indictment and the two summary offences of possessing a controlled weapon I also impose a community corrections order of three years duration.  The usual terms apply.  The additional conditions are that you perform over that time 350 hours of unpaid community work, that there be a condition of treatment for drug dependence, that there be a condition for treatment of mental health, that there be a condition of supervision.  75 hours of the therapeutic program condition work can be set off again the community work order.  Had you not pleaded guilty I would have imposed a sentence of two years with a minimum term of
15 months. 

42Simon George, stand up, please.  Sit down, please, Andrew George.  Simon George, on Charge 2, robbery, I sentence you to imprisonment of 97 days.  I declare 97 days pre-sentence detention.   On Charge 2  (that charge),  Charges 3, 4, 5, 6 and 8 I also impose a community corrections order of two and a half years duration.  The usual terms apply.  The additional conditions are that you perform over that time 275 hours of unpaid community work, that there be a condition of treatment for drug dependence, that there be a condition of treatment for mental health, that there be a condition of supervision.  75 hours of the program work can be set off against the community work.  Had you not pleaded guilty I would have imposed a sentence of 18 months with a minimum term of 10 months.

43Are there any other matters that I need to make orders about?

44MS FARGHER:  Your Honour's associate helpfully has the disposal and forfeiture orders.

45HIS HONOUR:  All right, thank you.  I'll sign those.  I should state what they are.  It's a disposal order of the drugs related to the relevant drugs to both.  I'll sign that.  There's a disposal order related to Simon George of the drug of dependence of diazepam related to him only.  I will sign that.  There is a forfeiture order in relation to Simon George in respect of a prohibited weapon.  It's not identified but does that matter?  Yes, it's got a schedule, the two knives. 

46There's a forfeiture in respect of both men related to a set of knuckle dusters.  I will sign that.  There is a forfeiture order directed at Andrew George in respect of a pen pistol.  I will sign that.  There's a forfeiture order directed at
Andrew George in respect of the prohibited or controlled weapon, that is the taser.  I'll hand those back down to you, will I?

47MS FARGHER:  Thank you, Your Honour.

48HIS HONOUR:  All right.  You can come out of the dock and sit behind your counsel, please.  We will print out those orders.  Stand up, please,
Andrew George.  On the offences that I identified, as well as the sentence of imprisonment you have already served, you will be placed on a community corrections order.  It will last for three years.  The usual terms are these, that you don't commit another offence for which you could be imprisoned during that time.  You must comply with a regulation which prohibits you attending any appointment or work program or other program affected by alcohol or drugs or in possession of illegal drugs.

49You must not commit another offence for which you could be imprisoned during that time.  I may have already said that.  You must report to and receive visits from Community Corrections.  You must report to the relevant Community Corrections Centre.  It is noted as Dandenong here, is that the correct one?

50MR MONAGLE:  That's one of them.

51HIS HONOUR:  Yes, within two - - -

52MR MONAGLE:  That's a good point, Your Honour.  It's Hughesdale.  Hughesdale kind of sits Moorabbin, Dandenong, Your Honour.  They could come under the Moorabbin catchment as well.  They'd prefer Moorabbin.

53HIS HONOUR:  That's not helping me.  They prefer Moorabbin, do they?  That's not helping me much.  What does the - - -

54MR MONAGLE:  If it says Dandenong, Your Honour, they can change - - -

55HIS HONOUR:  I am going to make it Dandenong.  I mean they could be still sitting in the back of the court or waiting for transfer down to the bottom level of the building, Mr Monagle.

56MR MONAGLE:  Absolutely, Your Honour.

57HIS HONOUR:  So their preference about where they attend for the community corrections order doesn't really trouble me much.  They can speak to the Community Corrections about it.

58MR MONAGLE:  Yes, Your Honour.

59HIS HONOUR:  I will go on with the usual conditions.  You must let a Community Corrections officer know within two days of a change of address or job.  You must not leave Victoria without getting permission to do so.  You must obey all lawful instructions of Community Corrections.  The additional or special conditions are that you perform 350 hours of unpaid community work over three years.  75 hours of the treatment work can be set off against that.  You must be under supervision of a Community Corrections officer.  You must undergo assessment and treatment including testing for drug abuse or dependency as directed.  You must undergo any mental health assessment and treatment that is directed.  Do you understand those conditions?

60OFFENDER A. GEORGE:  Yes, Your Honour.

61HIS HONOUR:  And do you agree to them?

62OFFENDER A. GEORGE:  Yes, Your Honour.

63HIS HONOUR:  Yes, all right.

64OFFENDER A. GEORGE:  Thank you.

65HIS HONOUR:  I will sign that and I will get you to sign it as well.  Once he signs that I'll get you to stand, please, Mr Simon George.  On the offences that I have identified I have imposed a community corrections order as well as the sentence you have already served of 30 months, two and a half years.  The usual terms are that you don't commit another offence for which you could be imprisoned during that time.  You must comply with the same regulation I spoke of before, that is, not attend an appointment, work site or program affected by alcohol or drugs or in possession of illegal drugs.

66OFFENDER S. GEORGE:  Yes, Your Honour.

67HIS HONOUR:  You must report to and receive visits from Community Corrections.  You must report to the relevant Community Corrections Centre, Dandenong, within two days of this order.  You must let Community Corrections know within two days of a change of address or job.  You must not leave Victoria without getting permission to do so from them.  You must obey all lawful instructions of Community Corrections.

68The additional conditions are that you perform 275 hours of unpaid community work over the time.  75 hours of the treatment or program work can be set off against that.  You must be under supervision of a Community Corrections officer.  You must undergo assessment and treatment including testing for drug use or dependency and you must undergo any mental health assessment and treatment that is directed.  Do you understand those conditions?

69OFFENDER S. GEORGE:  Yes, I do.

70HIS HONOUR:  And do you agree to them?

71OFFENDER S. GEORGE:  Yes, Your Honour.

72HIS HONOUR:  I will sign it and then get you to sign it as well.  All right.  Is there anything else I need to do?

73MS FARGHER:  No, Your Honour.

74HIS HONOUR:  All right, good.  Thank you for your assistance in this matter.

75OFFENDER ANDREW GEORGE:  Thank you, Your Honour.

76OFFENDER SIMON GEORGE:  Thank you, Your Honour.

77MR MONAGLE:  If it please the court.

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