Director of Public Prosecutions v Gurung

[2018] VCC 1011

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00439

DIRECTOR OF PUBLIC PROSECUTIONS

v

KARMA GURUNG
ZAHER ALIZADA

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2018
DATE OF SENTENCE:	29 June 2018
CASE MAY BE CITED AS:	DPP v Gurung & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 1011

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Foster
For Accused Gurung	Mr M McLennan
For Accused Alizada	Ms S Lacy

HIS HONOUR:

1Zaher Alizada, you have pleaded guilty to one charge of armed robbery, and you, Karma Gurung, were found guilty by a jury of 12 of the same charge of armed robbery on 30 April 2018.  The maximum penalty for armed robbery is 25 years.

2The circumstances surrounding your offending are set out in the summary of prosecution opening became, in relation to you, Zaher Alizada, Exhibit 1 and in relation to you, Karma Gurung, Exhibit 2.

3You, Zaher Alizada, were born on 1 January 1992 and you, Karma Gurung, 23 September 1984.  Your victim Nathan Chen was a 17-year-old student at the time of the offending.  At about 5.30 in the evening of 24 March 2017, Mr Chen was waiting for a bus at a bus stop near the intersection of Ballarat Road and Ashley Street in Braybrook.  He was seated inside the bus shelter listening to music through earphones.

4He was approached by you, Zaher Alizada, and you had two distinctive patches of bad skin on the side of the mouth that looked like ulcers.  It was you, Zaher Alizada, who commenced the interaction with Mr Chen asking him if he had any money.  He did not hear distinctly what you initially said and took out one of the earphones, and he then said, "No, I don't, I only have money on my Myki."

5You Zaher Alizada then said "My friend is going to stab you", referring to you, Karma Gurung.  At that point you, Mr Gurung, appeared and stood next to Alizada.  You had, among other things, a wound to the palm of your right hand which had been stitched.  Thus each of you had distinctive markings, visible to Mr Chen and observed by him.

6Those words being exchanged, Mr Chen stood up and took the other earphone out of his ear.  You, Karma Gurung, had your right hand over the top of your right pants, and said to Mr Chen, "I'm going to fucking stab you, man."  You Mr Alizada backed him up saying, "He's not fucking joking."

7Chen then took his wallet out of his pocket and said to you both, "How much do you want?"  You, Mr Gurung, said "$150", but you, Mr Alizada, were not content with that and said, "All of it."  Chen then took out $200 and gave it to you, Mr Alizada, and also handed over a Load & Go Visa card to you.  You then asked for the pin and Chen said it was "7250."  You, Mr Alizada, took out your mobile phone and typed that number, "7250", into your notes section of your mobile phone.

8You, Mr Gurung, again said that you were going to stab Chen, and then said words to the effect, "I've stabbed two people."  You, Mr Alizada, put your hand out as though you were trying to stop Mr Gurung from pulling out the knife, and said to Mr Gurung words to the effect, "Don't do it bro, I like my Asians."  You then said to Mr Chen words to the effect, "I'm trying to protect you bro, I'm trying to help you out."

9At that time, you, Mr Gurung, partially pulled out the knife from your right pants pocket.  Chen saw about five centimetres of the handle.  It appeared to him to be a switchblade knife, i.e. one in which the blade can be stored in the handle, as he could see metal grooves on the handle which are used to pull out and retract the blade.  You, Mr Gurung, said words to the effect, "You know two people have been stabbed this week."  You, Mr Alizada, said to Mr Chen, that Chen would not be the third and that he would protect Mr Chen.

10Alizada asked Chen for his name and mobile phone number.  Chen gave him the name "Austin" and a fake number.  You, Mr Alizada, typed that number into your phone and saved it under the name of "Auston".  You, Mr Gurung, then said that you wanted Mr Chen's mobile phone, whereupon he took his Apple iPhone 7 out of his pocket.  You then told Mr Chen to remove the password, which he did.  You, Mr Alizada, then took the phone from him.  Upon that, the two of you then walked away and turned right onto Ballarat Road.

11It has been suggested that you, Mr Alizada, played a lesser role in this armed robbery.  That is not so.  You continued on your involvement in the armed robbery right to the very end, demanding, for example, that Mr Chen give his mobile phone and told Mr Chen to remove the password.  It is true that you seemed to suggest to Mr Chen that you would protect him from Mr Gurung.  To the extent to which that was said, it is a difference without, in my view, in the scheme of things, any substance whatsoever.

12Indeed, what occurred is detailed in paragraphs 9 to 11 of the summary of prosecution opening of both Exhibits 1 and 2, clearly demonstrate that Mr Chen was cowed by the behaviour of you, who had both effectively corralled him in that bus stop.  What occurred is described in those paragraphs after you, Mr Gurung, said, "I've stabbed two people."  It was, in terms of the threats made, entirely gratuitous.

13It is plain that this armed robbery is a serious example of armed robberies which might be described as "street" armed robberies, which are all too common, involving the sudden confrontation with the victim by one or two persons and in this case the two of you.  Threats are typically made, as here. Indeed, the threats were of a serious kind, mainly, to stab Mr Chen, a threat that was made at the beginning and continued throughout.

14It was a terrifying experience for Mr Chen, a young man, as I have said, but 17 years of age.  Typically, in these types of armed robbery, the victim is either alone or isolated, and this was so here.  This was a cowardly armed robbery involving a confrontation of the victim not by simply one but by two of you, both mature males.

15Returning to the events of this early evening.  After the two of you left the scene, Mr Chen ran across the road to the Derrimut Gym, where he used the phone to call 000.  Within a very short period of time, at 5.43, police arrived at the scene and spoke to him.

16Police then used the "Find My iPhone" service to track Mr Chen's phone.  It was observed on the tracking to be moving around in the vicinity and ultimately became stationery around 25 Cambridge Street in Maidstone, which was approximately 700 metres from the scene of the armed robbery.

17A short time later, at 6.10 pm, police approached that address and observed that Unit 1/25 Cambridge Street had its door open and two men of Asian appearance were sitting on a couch.  Once additional police arrived at the scene at approximately 6.20, police entered the unit.  Inside the unit, police located Mr Chen's mobile phone on a bedside table with the SIM card next to it.  There were six men in the unit.

18Based on the detailed physical description and the physical characteristics of the markings to your face, Mr Alizada, and the stitched cut to your right palm, Mr Gurung, the two of you were arrested.  Police searched you, Mr Alizada, and on your phone they located the information that Chen had given you, being the pin number and the contact, "Auston", with a phone number.

19You, Mr Alizada, were interviewed some four hours after the armed robbery at 9.23 pm.  You falsely told police that you had no idea about the incident and further said:

"Oh, I – I have have no idea of - today I'm just a bit - I'm a little bit stoned and I – I - I actually haven't looked at my phone to - to see what the time- - where I was, exactly what I was doing."

20You further said that you "had a joint" in Footscray at about 4 pm.  The interview was suspended and resumed in the early hours of the following morning, at 12.26 am.  You then made, essentially, a "No comment" interview in relation to the allegations.  At the end of this interview, you then said the following:

"I just want to say that I have short memory problems, like - but if - I'm all good, I – I - I didn't notice, like - I don't know why I can't remember certain things from - from, like, 10 o'clock.  I was at the house - I don't know."

21Later still, you continued:

"I would like to be honest with you guys and be straight up but, like I don't care at - at the end, it just – like - like, all my life I've just - it's just been like this from here, like, you know, and no-one - I never been loved by anyone and – and - and I was, like, seven when I got separated from - when I got adopted to my brother's family and all that.  And then - and since - since then, you know, I've - I've never been looked after and - and that's why I - I don't know about religions, like, I'm – I’m not religious.  I'm not - I do anything, I - I – I eat - I eat anything and everything, I - I don't care.  It's – and – and - some days, it's just my day, some days it's just - I don't mean to hurt anyone.  It's, like, the doctors, like, cut my testicles so I don't - I can't even hurt a – like - like, a fly, you know."

22That latter section is plainly rambling and shows a level of incoherence which was not demonstrated at the scene of the armed robbery, where you were focused and knew exactly what you were doing and saying.

23You, Mr Gurung, you were interviewed on 24 and 25 March 2017 and essentially made a "no comment" interview. 

24In Mr Chen's victim impact statement, he wrote these things among others:

"The crime has affected me in the sense that I've experienced severe stomach pains and uncontrollable spasms on a daily basis.  It has physically made me ill to the point where I need to crawl into a foetus position for hours upon end before feeling a bit better.  Experiencing these uncontrollable spasms in my stomach, I've not been able to complete my schooling never achieving my Year 12 certificate because of my physical symptoms."

25Later, he states:

"My social life has gone from what I'd call very happy, to a fast lane downhill.  I don't spend time with my friends and I refuse to go outside the house.  Even when I do go out of the house which is a rare occurrence, I never relax and am constantly on the lookout.  I'm always looking at other people thinking what if I get stabbed or I'm in another armed robbery.  What if this happens, what if my friends get hurt.  I rarely even leave the house to see my family like my cousins.  I'd say my social life is ruined.  I don't feel safe at all and I'm quite scared of everything."

26Such are the profound consequences of this armed robbery upon this young man, who has had the last year of his secondary schooling ruined by the two of you.

27In relation to you, Mr Alizada, to your credit, you pleaded guilty.  In addition, you wrote a signed handwritten letter addressed to Mr Chen dated 24 June this year, which became Exhibit ZA3.  It is addressed to Mr Chen and you requested that it be provided to him by the informant, who retains the original.  You wrote:

"Dear Mr Chen,

I sincerely regret the hurt caused to you by my involvement in the crime committed against you.  I am sorry that my actions have caused distress to you and to your family. 

Having had time to reflect on my actions, it is clear to me now that I had no right to take away your safety and security, let alone in the manner in which I did it.  I now understand how dangerous and damaging to you my behaviour was. 

I am sorry."

28You, Mr Alizada, have had two firms of solicitors acting for you, and on the first listing of the committal on 16 November last year, they ceased to act due to ethical reasons.  The matter was adjourned to 28 February where you made an offer to plead guilty to the charge of armed robbery.  In the circumstances where the first solicitors ceased to act on your behalf, this was completely out of your control, and in the circumstances, I intend to treat your plea that was offered on 26 February 2018 as a plea at the earliest reasonable opportunity.

29Thus you will get the full benefit of that plea, not only in terms of its utility, avoiding a trial that, in the case of Mr Gurung, took no less than six days to conclude, avoiding the need for Mr Chen to be cross-examined by you or your representative, and in the circumstances, where that plea of guilty, together with the letter that you wrote to Mr Chen, evidences some remorse and insight into your offending behaviour.

30None of that can be said in relation to you, Mr Gurung, but I cannot, and I do not, punish you for having the trial, which was your right.  It is simply that you do not get any reduction that is available to Mr Alizada by reason of his plea, his remorse and his insight, as I have assessed them.

31I now turn to the prior criminal history in relation to both of you.  Firstly, you, Mr Alizada.  Between June 2014 and March 2017, in a period of just under three years, you have been to court on criminal charges on no less than six occasions involving you being dealt with for 33 offences, eight of which involve offences of violence including five assaults and one armed robbery, which I will come to in due course.

32In addition, there are no less than three other offences relating to your possession of weapons, six offences of damaging property, six charges of dishonesty and no less than ten breaches of court orders.  You have received three community corrections orders, two of which you breached, one of which was imposed by His Honour Judge Maidment.  You have been sentenced periods of imprisonment on four occasions.

33Thus you have accumulated a number of relevant prior criminal convictions, but it is the conviction for armed robbery before it was dealt with by his Honour Judge Maidment on 18 February 2017 which is of greatest concern.  In his sentencing remarks, his Honour set out the circumstances of that armed robbery as follows, in paragraphs 4 and 5:

"The summary of prosecution opening was read to the court this morning.  I am not going to read it again, suffice to say that you carried out an armed robbery at a BP service station at about 1pm on 16 September 2014.  You did so in circumstances where you were armed with a rock, which you used to menace the attendant behind the counter.  The manner in which you behaved was consistent with you being affected by drugs at the time.

I think it is fair to say that the robbery was inept, and the nature of the goods that you stole during the course of the armed robbery would suggest that to the extent that it was planned, it was not very well planned, and the risks involved in being caught hardly reflected the nature of the goods that you were seeking.  Again, it seems to me that that is consistent with a person who is carrying out an armed robbery affected heavily by illicit drugs."

34At paragraph 14, his Honour then continued:

"There was a very significant co-relation between the abuse of drugs, and perhaps alcohol, and your offending conduct in relation to these offences.  Unfortunately these offences were committed within a month of you being sentenced for a number of other offences in the Dandenong Magistrates' Court, as a result of which you were placed on a community corrections order for a period of 12 months."

35At paragraph 18, his Honour said:

"I accept that you have shown signs of genuine remorse, that is that you are generally sorry for your offending conduct.  It is to your credit that you admitted your offences when you were arrested, that you have pleaded guilty at the earliest reasonable opportunity, and have not sought to play down or avoid the consequences of your actions."

36At paragraph 21, His Honour continued:

"I have in mind, Mr Alizada, to impose a term of imprisonment upon you of 23 months.  That is significantly less than I would have imposed had it not been for the fact that I have in mind to impose, also, a community corrections order.  It will mean you serving 23 months less than the 155 days of pre-sentence detention that will be deducted from the sentence that I will impose.  The result of that would be that you would be released from prison in about 18 months' time, something of that order."

37In the last paragraph, 30, His Honour continued:

"I cannot make that order unless you agree to it, but before you do agree to it, you must understand and understand well, that it is not necessarily going to be particularly easy to comply with it.  If you do not comply with it, then you will be in breach of the order, which will make you liable to a period of three months just for the breach - up to three months.  Also, obviously if the breach is by the commission of further offences then you will be up for any sentence that you receive for the further offences, and significantly you will be up for re-sentencing on this matter which may well mean, and probably will mean, an increase in the period you will actually have to serve in respect of these sentences."

38You were released in August 2016.  Within seven months of your release, and seven months, therefore, into that community corrections order that you consented to, you committed this offence.  You are not in any way to be punished for the breach of that order, nor today for the offending for which His Honour Judge Maidment imposed those sentences.  That, if there is a breach, is for another judge at a later date to deal with.

39It is plain from these matters that the sentence that I impose upon you must be one where specific deterrence, that is, deterring you from further offending, is significant, just as protection of the community from you is now also a significant sentencing factor.

40I will return to those sentencing matters in due course, but now I wish to turn to some matters relating to you, Mr Gurung.  At the time of this offending you had a limited criminal history, having been dealt with at the Melbourne Magistrates' Court on 30 July 2013 for recklessly causing injury.  The disposition of the community corrections order for a period of 12 months without conviction reveals this matter to be, in my view, of no moment whatsoever.  You are, therefore, to be sentenced as a person who has no relevant criminal history, save in regard to one matter.

41You were, at the time of the commission of this armed robbery on bail in relation to an attempted armed robbery and were dealt with on 24 March 2017.  That attempted armed robbery occurred at approximately 3.10 am on Wednesday 23 December 2015, where police were notified by Safe City that an assault was taking place at the corner of Swanston Street and Flinders Lane, Melbourne.

42Police located the victim in this matter and he stated to police that he had been in the city attending a social function at a nearby bar and was waiting for a cab so that he could go home.  He stated that he was approached by two males who wanted marijuana from him.  He responded that he did not have any marijuana and tried to walk off, where both males then made demands for money, pot and his watch.  CCTV footage depicts both males punching the victim in the face and head a number of times as demands were being made for items from the victim.  Police then had a short foot pursuit with the offenders, who included you, Mr Gurung.  No property was taken from the victim, most likely due to the police intervening before the assault escalated.

43Thus, in relation to you, Mr Gurung, being on bail in relation to an attempted robbery, you committed this offence of armed robbery.  The relevance of that matter, beyond what I have stated, is in relation to the question of totality, for you were subsequently sentenced on that offence and others to 12 months' imprisonment.

44Turning to matters personal to each of you.  You, Mr Alizada, are now 26 years of age.  You were 25 at the time of this offending.  You were born in Afghanistan and your parents separated when you were five years of age.  Your father had two wives and you were born of the second wife, having two brothers and three sisters from your father's first marriage.

45You left Afghanistan at the age of 14 and travelled to Australia via Pakistan.  Afghanistan, then, was in turmoil with war.  You travelled to Australia with an elder brother who claimed on documentation that he had adopted you from your parents.  The rest of your family remained in Afghanistan.  You were granted citizenship in 2009, aged 17.  You have a sister who has since moved to Australia and lives in Tasmania.  She, apparently, is prepared to have you live with her in Tasmania.

46Your education was completed after repeating Year 10 at Gleneagles Secondary College.  After that, you left school and obtained work in construction with your elder brother.  You worked periodically in construction and also farm work and security work.

47You left home at the age of 16 in 2010, and became homeless.  Homelessness has dogged you.  You have a history of drug use and addiction, commencing smoking marijuana and consuming alcohol at the age of 20.  Following your release from prison, around August 2016, you returned to smoking methylamphetamine which you had previously been using together with MDMA and heroin and was using heroin intravenously.

48There are two reports that have been tendered, a psychological report prepared by Dr Simon Kennedy dated 27 January 2015 which became Exhibit ZA1, and a psychiatric report prepared by Dr Leon Turnbull dated 16 April 2018 which became Exhibit ZA2.  In the conclusion section of the psychological report of Dr Kennedy, at paragraph 20, he writes:

"As such, it would appear that the criminal offending has been directly related to substance abuse.  The substance abuse has been central in causing Mr Alizada's psychotic symptoms.  He does not present with a marked personality disorder or vulnerability to violence.  Nevertheless, there is obviously vulnerability to substance abuse and he requires substance abuse treatment over the next 2 to 3 years."

49That was a report that was provided to His Honour Judge Maidment, and explains the one year, 11 month sentence and the then-three year community corrections order that was imposed.  In the subsequent psychiatric report of Dr Turnbull, in assessing your mental state as at 11 April 2018, he observes:

"He cannot recall labouring under any recent psychotic experiences, and there was nothing in my observation to contradict that.  Thus, this man is not concurrently psychotic. 

He described the basic intention to continue his divorce from illegal drugs and take his psychiatric medication."

50In the opinion section, Dr Turnbull continues:

"The records indicate that this man does have an established diagnosis of schizophrenia, and while I am usually cautious in diagnosis and especially in the context of illicit drug use, his two most recent relapses and then treatment with injected antipsychotic provide me reassurance that the diagnosis is correct. 

How relevant his schizophrenia was at the time of his offending is not so obvious, and he simply asserts that he was high on heroin and encouraged by his friend."

51Later, Dr Turnbull writes:

"Whilst he is not psychotic in custody, he is a vulnerable prisoner in the sense that he struggles to communicate effectively and I would consider him to find custody more onerous than others who do not suffer the effects of his illness. 

Expressions of remorse were not forthcoming, and significant contributions to that were deficits in language and interpersonal problems which I have highlighted."

52It is submitted that in those circumstances, imprisonment will be more burdensome for you than others not suffering in such a way.  I accept that and have moderated the sentence that I would otherwise impose upon you.

53Given your past extensive criminal history and the fact that you committed this offence whilst on a community corrections order for the exact same kind of offending, armed robbery, my assessment of your prospects of rehabilitation are poor.

54Turning to you, Karma Gurung, and your personal background.  You are now 33 years of age.  You grew up in Nepal.  Your father sold handcrafst and as such was absent from home from most of the year, with you only seeing him once or twice a year.  Your family were involved in the Free Tibet protests over Chinese rule in their homeland.  The Nepalese government was opposed to these protests, and injuries would often result to those involved in them.  You and your mother both had your legs broken by police during one such protest.  As a result, you have had ongoing leg, hip and back pain.

55In 2006, due to the danger to your family and in particular, you, you were sent to Australia, aged 20.  So serious was the view of the family as to their security and your potential security, you were told to have no contact with your family after leaving Nepal.  When you arrived in Australia in 2006, you studied travel and tourism at Sydney Secondary College and shortly after you were granted a protection visa as a refugee.

56In 2008, you moved to Melbourne and you did some volunteer work with the Asylum Seeker Resource Centre.  In 2009, you commenced work at the Bongiovanni fruit and vegetable shop in Seddon and in 2012, you were befriended by another employee who was a heroin addict and introduced you to heroin, which you smoked.

57When the new owners of the store made all staff redundant in 2014, you then obtained work at a shop, Best and Less, in Highpoint shopping centre.  You had a relationship with a woman but have had no contact with her since your arrest.

58In the period leading up to this offending, you commenced methadone in relation to your heroin addiction but were then introduced to ice, which became another addiction.  Your girlfriend left you.  You then had homeless problems.  You lost your residential property and then you went to the notorious Gatwood Hotel.  Unsurprisingly, during your stay there, your addiction to both ice and heroin worsened and you fell into depression.

59Since you have been in custody, you have busied yourself as a unit billet and in that role have been vacuuming and cleaning offices.  You are currently, or have been, on methadone, and have not used illicit substances as established by three urine results from July and September of 2017, and more recently, February of this year.  You have completed no less than six courses in prison and are currently involved in a further course called "Change the Inside."

60Because of the sentence of 12 months for the attempted robbery and other offences, and the fact that you will be sentenced to a period of greater than 12 months, you face the prospect that you will be deported.  This has two aspects to it.  It was submitted that the prospect of deportation is a serious, punishing consequence of the offending.  Initially, I was not impressed by that submission as it was, because you placed yourself in that position by your offending on three separate occasions, for which you were dealt with by the Magistrates' Court with a sentence of 12 months.  However, given the fact that you face deportation to Nepal, then, in my view, the prospect of you having to leave Australia is in those circumstances is a serious punishing consequence and a matter that I do take into account, together with the hardship faced by you in prison knowing that you risk deportation.  For both reasons, I intend to moderate the sentence that I would otherwise impose.

61Furthermore, it is necessary for me to adjust the head sentence, and consequentially, the minimum term that I impose here, because of the fact that you have been dealt with on 27 March 2017 for unrelated matters and sentenced to be imprisoned for a period of 12 months.  Put differently, some concurrency would have been ordered had those matters been dealt with by me today.

62I therefore intend to reduce the sentence in relation to that matter by a period of three months.  This is not in any way to be thought to involve a two-step sentencing process.  Rather, it is my endeavour to quantify the amount of concurrency I believe ought to have been ordered had all matters been dealt with at the one time.

63The sentence that I impose on both of you must be one where the principal sentencing consideration is general deterrence; deterring others from this type of conduct.  In addition, in relation to both of you, there is a need for you both to be deterred from further offending.  Your cowardly conduct must be denounced and there is a need for the sentence to reflect that both of you receive just punishment.  In your case, Mr Alizada, there is a need, as I have stated, for me to take into account the protection of the community from you.

64This matter has presented as a difficult sentencing exercise.  On the one hand, you, Mr Alizada, have pleaded guilty.  You, Mr Gurung, went to trial as was your right.  On the other hand, you, Mr Alizada, have pleaded guilty, have an extensive criminal history, and were, as I have said, on a community corrections order for a period of seven months having been released after serving 23 months of the sentence that His Honour Judge Maidment passed.  You on the other hand, Mr Gurung, have no relevant prior criminal history.

65Each of you have matters that must also be taken into account.  Thus in your case, Mr Gurung, the burdensomeness of the prospect of your deportation must be taken into account; a matter that is not relevant in Mr Alizada's case.  On the other hand, Mr Alizada is entitled to a moderation of his sentence because of the burdensomeness of his imprisonment for different reasons that I have stated.

66In the ordinary course where things are equal, the same sentence would be imposed.  But of course, here, things are not in any way equal other than in terms of the same level of involvement in this armed robbery.  In the end, the head sentence as between you, Mr Alizada, and you, Mr Gurung, is a difference of only three months.

67I wish for the record to articulate some aspects of this difficulty in sentencing.  Had you, Mr Alizada, not pleaded guilty and run a trial, the sentence that I would have imposed on you would have been significantly higher than that which I would have imposed upon Mr Gurung.

68Indeed, simply on the basis of an assumption that the both of you went to trial, and taking into account only in your case, Mr Alizada, your criminal history, and putting aside the criminal history, such as it is, of Mr Gurung, I would have imposed a sentence on you, having regard solely to those matters, of four years and nine months' imprisonment.  However, you have pleaded guilty and there are other matters in mitigation that I must take into account and do.

69Stand please, Mr Alizada.

70Taking all these matters into account, I sentence you on the charge of armed robbery to three years and three months.

71I direct that you be eligible for release on parole having served a period of two years.

72I declare the pre-sentence detention in relation to you, Mr Alizada, to be 448 days.

73And, in relation to you, I state that pursuant to s.6AAA of the Sentencing Act, the sentence that I would otherwise have imposed but for your plea of guilty would have been four years, nine months, and set a minimum non-parole period of three years and three months. Take a seat.

74In relation to you, Mr Gurung, I sentence you to be imprisoned for a period of three years and three months, and I set a minimum non-parole period of two years and three months.

75In relation to you, Mr Gurung, I sentence you to three years, six months, with a minimum period of two years, three months, and I declare that pre-sentence detention amounts to 172 days.  Take a seat.

76I will say for clarity, as there may be some misunderstanding in relation to you, Mr Alizada, the sentence is three years, three months, with a minimum period of two years and I state that but for your plea of guilty, I would have sentenced you to four years and nine months and set a minimum non-parole period of three years, three months.  If I said anything different, I correct it.

77Does that conclude the matters?

78MS LACY:  Yes, Your Honour. 

79MR FOSTER:  As Your Honour pleases.

80HIS HONOUR:  Are there any errors?

81MS LACY:  There is the matter of an appeals costs certificate for a barrister that appeared before I on a date ‑ ‑ ‑

82HIS HONOUR:  Let us deal with the first question.  Are there any matters to be corrected?

83MS LACY:  No, Your Honour. 

84MR FOSTER:  Your Honour, I only have one matter to raise and that is that I neglected to mention that I handed up two copies of the orders, the forensic sample order, one custodial and one non-custodial.  In light of Your Honour's sentence, may I hand back the non-custodial copy to be destroyed?

85HIS HONOUR:  Have I signed them all?

86MR FOSTER:  Yes, Your Honour. 

87HIS HONOUR:  Tear up what you do not need.

88MR FOSTER:  All right.  You are happy for me to do that?

89HIS HONOUR:  I am.

90MR FOSTER:  Thank you. 

91HIS HONOUR:  Yes, remove Mr Alizada and Mr Gurung, please.

92MS LACY:  Sorry,  Your Honour, just ‑ ‑ ‑

93HIS HONOUR:  Sorry, yes.

94MS LACY:  ‑ ‑ ‑ the matter.  I am instructed there was an application for an appeals costs funds certificate on 20 June, when the matter was adjourned.

95HIS HONOUR:  Yes.

96MS LACY:  There was other counsel involved.

97HIS HONOUR:  That was from last week, was it?

98MS LACY:  Yes, it was.

99HIS HONOUR:  Yes.

100MS LACY:  And I think that it was made on behalf of both barristers at the Bar table, but I am certainly instructed in relation to my predecessor.

101HIS HONOUR:  I will grant a certificate in relation to both, for last week.

102COUNSEL:  As Your Honour pleases.

103HIS HONOUR:  Yes, thank you all for your assistance.

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