Director of Public Prosecutions v Gholikhani

[2016] VCC 2032

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01638

DIRECTOR OF PUBLIC PROSECUTIONS

v

FARAZ GHOLIKHANI

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2016 and 1 December 2016
DATE OF SENTENCE:	21 December 2016
CASE MAY BE CITED AS:	DPP v Gholikhani
MEDIUM NEUTRAL CITATION:	[2016] VCC 2032

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Theft – Robbery – Armed robbery – Relevant criminal history - History of drug abuse

Sentence:Convicted and sentenced to 19 months’ imprisonment in combination with Community Corrections Order of 2 years’ duration with mandatory and other conditions - Pre-sentence detention of 177 days – s.6AAA Sentencing Act 1991 – Ancillary orders – Forensic sample order and Disposal order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan	Solicitor for Public Prosecutions
For the Accused	Mr W. Barker	David Barrese & Associates

HER HONOUR:

1Faraz Gholikhani, you have pleaded guilty to the following offences:

Two charges of theft; one charge of robbery; one charge of armed robbery. 

2The maximum penalty for the offences are:

(a) Theft, ten years’ imprisonment

(b) Robbery, 15 years’ imprisonment

(c) Armed Robbery, 25 years’ imprisonment

3The maximum penalties reflect the seriousness with which these offences are regarded by Parliament.

4You have also pleaded guilty to the summary offences of committing an indictable offence whilst on bail, unlawful assault and contravening a family violence order. The first two of these offences has a maximum penalty of three months’ imprisonment and the last mentioned has a maximum term of two years’ imprisonment.

5You are 30 years old and you were 29 when you committed the offences.

6On Sunday the 12 June 2016 at 1.30 pm, you entered the Woolworths’ store at the Plenty Valley Shopping Centre in Mill Park.  You were wearing a dark hooded jumper at the time and carrying an object in your right hand that looked like a pen or a screwdriver.  You approached a service desk where televisions were displayed.  You picked up an Akai branded television and walked out of the store. The incident was captured on CCTV footage.  This gives rise to Charge 1, theft.

7On Wednesday 15 June 2016 at 11.20 am, you entered the Woolworths store in Plenty Road, South Morang and walked up to a service desk where there was an Akai television for sale.  A staff member, Jessica Boscara, approached you and started to tell you where to go to purchase the television.  You told her to "shoosh" and then picked up the television and went to walk out of the store.  Ms Boscara grabbed onto the box that the television was in and tried to pull it from you.  You raised your hand to try and push or hit her to release her grip on the television.  You made contact with her left hand which caused her finger to ache.  Ms Boscara was shocked at what had happened and let go of the television.  You then ran from the store and you were met outside by a white Holden Commodore, registered SNT 431.  This gives rise to Charge 2, robbery.

8On Sunday 26 June 2016 at 2 pm, you entered a Woolworths store at the St Helena Shopping Centre.  You walked around the store for a few minutes before exiting. You were wearing a white, black and green hooded jumper.  About 20 seconds later, you returned to the store and approached a display of televisions next to the customer service desk.  You were holding a metallic pen in your right hand with the tip of the pen exposed.  As you reached the display, you said to the three employees at the counter, “I’ll fucking stab you”.  One of the employees replied, “What?”  You then picked up an Akai television and said, “Don’t follow me or I’ll stab you”.  You left the store, went into the car park and got into the passenger seat of a white Holden Commodore XNK122.  This car was being driven by your girlfriend, a Kelly McAvoy.  The incident was captured on CCTV footage.  At the time of this offence, you were subject to bail for other offences.  This conduct gives rise to Charge 3, armed Robbery and the Summary offence, Charge 9 of committing an indictable offence whilst on bail.

9About ten minutes after the incident to which I have just referred, Ms McAvoy drove to the Coles Express petrol station on Main Road in Greensborough.  You exited the Holden Commodore and filled the vehicle with $33 worth of unleaded petrol and you did not pay for it.  You and Ms McAvoy then left in the Holden Commodore. The incident was captured on CCTV footage.

10Between 29 February 2016 and the 28 February 2021, you were subject to a family violence intervention order where Ms McAvoy was the affected family member. The order contained conditions that you not contact Ms McAvoy, or be within five metres of her.  The theft of the petrol is the basis for Charge 4 and the breach of the intervention order is the basis for the Summary offence, Charge 9.

11On Monday 27June 2016 at 1 pm, you were arrested at your mother’s house in Doncaster East.  You were taken to the Heidelberg Police Station.  You were interviewed and gave "no comment" answers to the allegations.

12Following the interview, Bail Justice Anne Credlin-Russell attended the Heidelberg Police Station in relation to a remand application.  Ms Credlin-Russell advised you that you would be remanded overnight.  You said to her, “Well you’re a bitch then” and spat twice in her face.  You then referred to her as a “dog” and said something similar to, “I’ll be out tomorrow and I’ll find and get you”.  This incident was captured on CCTV footage.  You were removed from the interview area.  You later advised custody staff that you had Hepatitis C.  The conduct where you spat at
Ms Credlin-Russell gives rise to the summary charge,  unlawful assault, which is Charge 11 of the summary charges.   

13I accept that the offending on the indictment could be described as rather unsophisticated, although brazen, which bespeaks the drug addiction you were labouring under.  However, you engaged in a struggle with the victim of the robbery, who was doing no more than trying to prevent you from stealing merchandise and you made threats to staff in the course of the armed robbery, albeit that the weapon you had with you was not the fiercest that one has ever seen.  The value of the items taken on each occasion was not high.

14I regard the unlawful assault on the Bail Justice as a most serious matter.  Your behaviour toward her was utterly despicable and shameful.  She was doing no more than performing her duties and for someone like you to spit at her and threaten her as you did, is intolerable.

15As a whole, your offending is serious and deserving of a punishment which is just in all of the circumstances and your conduct must be denounced.

16There is a victim impact statement from Ms Credlin-Russell, which was read aloud. She gave a most detailed account of how your offending against her has impacted on her.  She was 71 years old when you assaulted her.  She had contributed significantly to the community, in a number of important and life-giving capacities. She had never encountered behaviour such as yours in all of the years that she has been a bail justice.  She endured the shock and revulsion that went with you assaulting her, but she has also endured a tremendous amount of anguish whilst awaiting the results of a test to see whether she had contracted Hepatitis C from you. Whilst she was told that the chances of this happening were low, she did not know for sure until very recently and in the meantime, has suffered a great deal, as you would expect.  Your conduct has impacted on many facets of her life in a most negative way, as you would expect.

17The victims of the armed robbery and robbery did not provide victim impact statements.  It is not too hard to imagine however that you have also negatively impacted on their lives.

18I take into account the impact on the victims in sentencing you.

19I also take into account your criminal history, which is a rather lengthy one and contains matters which are relevant to the offending before me.

20All of your prior appearances have been in the Magistrates Court.

21In 2004, you were fined without conviction for assault in company and theft.

22In 2007, you received a non-conviction adjournment for theft and you were directed to abide by the directions of a Dr Wesley Ang.

23In 2008, you were convicted and fined for possessing a prohibited weapon, resist police and breach of an intervention order.  The following month, you were convicted and fined for intentionally damaging property and ordered to pay $520 compensation.

24In 2009, you received a non-conviction adjourned undertaking for criminal damage. Two months later in that year, you received a 12 month community based order for burglary, theft and dealing with property suspected to be proceeds of crime. The community based order required you to undergo assessment and treatment for alcohol and/or drug addiction and psychological and/or psychiatric assessment and treatment.

25On 21 October 2009, you were convicted and fined for criminal damage, assault with a weapon, handling stolen goods, obtaining property by deception and possess heroin.

26On 2 November 2009, you were re-sentenced in respect of some of the offences for which you have received the benefit of the community based order and were sentenced to a total effective sentence of six months' imprisonment, which was wholly suspended for 12 months.

27On 27 July 2011, you were dealt with for failing to comply with an undertaking order, as well as failing to answer bail and criminal damage, where you were either convicted and discharged or fined.

28On 16 July 2013, you were convicted of driving under the influence of a drug, possessing and using methylamphetamine and attempting to possess
a prescription drug.  You were convicted and placed on a community corrections order for 12 months and again, given assessment and treatment conditions in respect of mental health, alcohol and drugs.

29In November 2011, you were convicted and fined for contravening a family violence and intervention order.

30In May 2014, you were dealt with for breaching the community corrections order imposed in 2013 and the order was varied such that it was to endure for nine months with the same treatment conditions being imposed.

31In 2014, you were dealt with for four charges of driving whilst disqualified and driving whilst suspended and you were sentenced to three months' imprisonment, which was your first immediate prison term.

32In September 2015, you were dealt with for a breach of the community corrections order which had previously been varied and you were again placed on a community corrections order for nine months, with the same conditions attached in respect of treatment.

33Therefore, you have had the benefit of a number of chances to rehabilitate through the imposition of a community based disposition, but you have not taken advantage of these.

34I was told by your counsel that the problem in past has been that you were still in the grips of drug addiction and were using at the time that these dispositions were imposed, so that you were not in a fit state to properly undergo such orders.  I was told that you are now clear of drugs, having detoxified whilst in custody.  I was handed a urine analysis in support of this.  Your counsel indicated that you had only served one immediate gaol term in the past and that there was no treatment that occurred after leaving gaol on that occasion.

35Clearly, your offending on the occasions before me and in the past, is very much linked to your drug abuse.  I put you on notice, Mr Gholikhani, that if you continue to offend whilst on drugs, then your decision to take them may well be regarded as an aggravating feature of your offending.  More than this, Mr Gholikhani, if you continue on the path that you have been on, you will end up serving ever increasing periods in gaol or dying at an early age.

36In relation to the contravention of the family violence order, I was told that this was an order obtained by the police on behalf of Ms McEvoy, following an assault by you.  In spite of this, Ms McEvoy chose to return to you and your drug-abusing lifestyle.  I was told that you have no wish to continue the relationship with her upon your release from gaol, which might be good news for both of you, despite the fact that Ms McEvoy appears to want to continue the relationship.  It seems to me that you are bad for each other, which is a matter that you seem to have realised.  
I was told that Ms McEvoy was only charged with the theft of petrol in respect of any offences which appeared to involve her in this spate of offending.

37I take into account your background:

38Your family originated from Iran.  After the revolution, you were forced to flee, as your father was Muslim and your mother was of the Baha’i faith.  You and your family crossed the border into Pakistan in 1993, where you remained for about
12 months.  You were then granted a visa to Australia.  You have lived in Melbourne ever since.  Since coming here, your father and mother have separated.  You are very close to your mother and have resided with her in the past.  You only see your father now and then.

39You attended a high school in the Eastern suburbs and completed VCE, then embarked on a TAFE course in civil engineering, but did not complete this course. Instead you completed a pre-apprenticeship in carpentry, before looking for employment.

40You were a good sportsman through school, playing basketball then soccer. Unfortunately, you stopped playing soccer after you finished school.

41You have a fairly solid work history, which is to your credit.  You have had various kinds of jobs since you were 14 year old for fairly extensive periods, but your major area of work has been concreting.  When you were 23, you went to Western Australia in a bid to make a fresh start and you worked as a lab technician and in the field for a company associated with mining engineering.  You will probably return to the concreting industry upon your release from gaol.  Your willingness to work and ability to hold down jobs for fairly significant periods is a positive factor in assessing your prospects of rehabilitation.

42If you are to free yourself from drug abuse once and for all, you must engage in intensive and sustained treatment, as well as engaging in work and keeping yourself as busy with prosocial activities as you can.  

43I was told that a friend introduced you to cannabis when you were 17 and that you went on to use this regularly.  When you were 18 and 19, you started to use speed on the weekends in the context of the "party scene".  When you were 20, you commenced smoking heroin and this developed into intravenous use.  You have also used methamphetamine for a period of six months, but then stopped.  Your drug of choice is heroin, which is what you were affected by on all three occasions of offending for which I now sentence you.

44Over the years, you have made genuine attempts to become drug-free, including undergoing a naltrexone implant on several occasions and moving to Perth to escape undesirable influences here.  Unfortunately, each time you have relapsed into drug use.

45You come from a most supportive and loving family.  Your mother and sister were both in court at the plea hearing and are here again today.  It is evident that they have stood by you through a number of turbulent years.  You are also supported by your sister’s husband.  Each of them have written most eloquent character references in support of you and I have taken these into account.  In one of those references it was mentioned that you may suffer from bi polar disorder, which is a matter that I am keen to have explored.

46Your family has come to the conclusion that when you are able to, the best thing for you would be to travel to Israel to re-connect with your Baha’i faith and to leave the negative influences which you have encountered in Australia.  These sentiments have been emphasised in a letter tendered today on your behalf, which was written by your sister. 

47In your favour, you pleaded guilty at the earliest opportunity, which has saved the witnesses, especially the victims, the time and trauma of giving evidence and you have saved the community the time and expense of contested proceedings.  This entitles you to a significant discount in the sentence that you would otherwise receive.  Further, I accept that your expressions of remorse to your family are genuine and exemplified by your early pleas of guilty. 

48I make some allowance for that fact that you have been in custody at the MRC in lockdown conditions, which have, over time, alleviated to a fairly significant degree, however, at an earlier point in time, were rather onerous. 

49I also take into account, in a general sense, the report which was tendered today, prepared by Dr Chowdhry, dated Tuesday 10 May 2016, which has a number of matters in it supportive of matters put on your behalf on the previous occasion and also endorses the fact that you have made attempts in the past to overcome your problems with substance abuse.   

50In view of your offending on the occasions before me, your criminal history and history of drug addiction, but also bearing in mind the fact that you are now
drug-free, that you have a strong work history and have strong supports from your family, as well as your resolve to stay away from negative influences and preparedness to engage in intensive drug rehabilitation when you can, I rate your prospects of rehabilitation as guardedly fair.

51I place moderate weight on specific deterrence and protection of the community.

52In my view, the community will be best protected if you finally address your drug problem and any mental health issues that may belie this.  It is not surprising that Community Corrections deemed you unsuitable for a further order involving them.  Insofar as your drug problem is concerned, I took the step of requesting a drug treatment availabilities report, with a view to you being placed in a residential drug program upon your release from gaol.  This can only happen with your consent. Such consent will be canvassed when I take you through the proposed community corrections order in a moment.

53According to the most helpful report prepared by Ms Sheridan Manley of ACSO/COATS, the best approach in your case would be to complete further custodial based alcohol and drug treatment, so that your level of commitment to a community based residential program can be explored.  Once you are released, Ms Manley recommends a residential program for drug and alcohol abuse which would be monitored by Community Corrections.  She was also of the view that you be further psychiatrically assessed.  In her report, she details the various programs in which you have taken part from 2009 onwards.  You were able to complete some of these, but in other instances you were not.

54In any event, it is necessary that you serve a further period in gaol, as I do not consider that you have served sufficient time to adequately address relevant sentencing factors that I have set out.

55Such an approach to sentencing you was submitted to be appropriate by the prosecution and conceded to be appropriate by your counsel.

56In sentencing you, I am also going to impose a level of cumulation to reflect the separate offending in which you have engaged.

57Would you please stand up.

58You are convicted of each of the offences, both on the indictment and the summary matters. 

Ancillary orders

59In terms of ancillary orders, I make a disposal order in the terms sought by the prosecution, which is not opposed by you.

60Secondly, I make a forensic sample order by way of buccal swab from the mouth. I make the order because of the seriousness of the offending, your prior convictions, because the order is not opposed and also because it is in the public interest to make the order.  I should warn you that if you do not co-operate in the taking of the sample, then reasonable force may be used by the authorised officer in order to obtain this.

61In combination with a gaol term, I propose to put you on a community corrections order, but I can only do so with your consent.  So please listen carefully to the order that I propose.

62Firstly, the community corrections order would run for a period of two years.

63The conditions of the community corrections order would be as follows:

64The mandatory terms that apply to all community corrections orders, would apply to this order, which are:

·Firstly, you must not commit another offence for which you could be imprisoned during the time that the order is in force;

·Secondly, you must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;

·Thirdly, you must report to and receive visits from the Secretary to the Department of Justice or his or her delegate;

·Next, you must report to the Broadmeadows Community Corrections Centre before 4 pm within two clear working days of your release from custody.

·Next, you must let a community corrections officer know within two clear working days of you changing your address or job;

·Next, you must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his/her delegate;

·Next, you must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his/her delegate.

65The conditions that would apply in addition to the mandatory terms that I have just set out are:

Supervision

·Firstly, that you be under the supervision of a Community Corrections Officer for a period of two years. 

·I have decided not to impose a monitoring condition.  You are old enough to stand on your own two feet and take responsibility for yourself and you will be supervised by Community Corrections in any event.  Also, I do not want to interfere with any residential treatment that you will be undergoing upon your release from gaol.

Treatment and Rehabilitation

·The next condition would be, you must undergo assessment and treatment, including testing for drug and alcohol abuse or dependency, as directed by the Regional Manager.  In this regard, in view of the report from ACSO, you are to attend a residential drug and alcohol treatment facility or program immediately upon your release from gaol.  I will arrange for Community Corrections and ACSO to receive a copy of my sentencing remarks and orders and to notify you of the program which you will be required to attend.

·Next, you must abstain from alcohol and illicit drugs, and undergo screening for the presence of these in your system and when required  to by the Regional manager or his or her delegate.

·Next, you must undergo mental health assessment and treatment, including but not limited to, mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, if necessary, as directed by the Regional Manager.

·You must also undergo medical assessment and treatment, as directed by the Regional Manager.

·You must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the Regional Manager.

66Do you consent to the terms and conditions of the proposed order?

67OFFENDER:  Yes, I do.

68HER HONOUR:  I should tell you that if you do not comply with all of the requirements of this community corrections order, then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to gaol.  I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

69Do you understand this, Mr Gholikhani?

70OFFENDER:  Yes.

71HER HONOUR:  Do you maintain your consent to the order?

72OFFENDER:  Yes.

73HER HONOUR:  Therefore in relation to the charges, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out, but it will be in combination with a period of imprisonment, of which
I shall advise you in a moment.

74At this stage I will ask your counsel to assist you with the signing of the community corrections order.

75I impose the following periods of imprisonment:

76Charge1, six months;

77Charge 2, ten months;

78Charge 3, 13 months, which will be the base sentence;

79Charge 4, eight months;

80Summary Charge 9, three months;

81Summary Charge 10, four months; and

82Summary Charge 11, three months.

83I direct that two months of the sentence on Charge 2 and one month of the sentences on Charges 1 and 4 and Summary Charges 9 and 11, be served cumulatively with each other and with the base sentence, but that otherwise the sentences are to be served concurrently, giving a total effective sentence of
19 months' imprisonment, which is to be served in combination with the community corrections order.

84I declare that you have already served 177 days by way of pre-sentence detention which will be reckoned as time already served, pursuant to this sentence.

85If not for your pleas of guilty, I would have sentenced you to total effective sentence of four years', three months' imprisonment, with a non-parole period of three years.

86Could you take a seat for a moment please, Sir. 

87Is there anything arising out of that? 

88MR BARKER:  No, Your Honour.

89HER HONOUR:  All right, thank you. 

90Yes, thank you, if Mr Gholikhani could be removed, thank you. 

91We will now adjourn.

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