Director of Public Prosecutions v Hadairi

[2024] VCC 1968

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 24-01793

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALI HADAIRI

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	12 November  2024
DATE OF SENTENCE:	6 December 2024
CASE MAY BE CITED AS:	DPP v Hadairi
MEDIUM NEUTRAL CITATION:	[2024] VCC 1968

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentencing

Catchwords:             Plea of guilty –  kidnapping – common assault – prohibited person possessing a firearm – possessing ammunition – Category 2 offence – young offender -  PTSD – childhood trauma -  Bugmy principles – substance abuse - sentence served in Youth Justice Centre – Youth Parole– vulnerable in adult custody – risk of deportation – reasonable prosects of rehabilitation  -

Legislation Cited:     Migration Act 1958, Sentencing Act (Vic) 1991

Cases Cited:             Bugmy v The Queen [2013] HCA 37

Sentence:                 Total Effective Sentence of 26 months’ in a Youth Justice Centre

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	Office of Public Prosecutions
For the Accused	Ms G. Morgan

HIS HONOUR:

1Ali Hadairi, you have pleaded guilty before me to four charges on Indictment:

·Common law kidnapping, which carries a maximum penalty of 25 years' imprisonment;

·Common assault, which carries a maximum of five years' imprisonment;

·Prohibited person possessing a firearm, which carries a maximum of 10 years' imprisonment; and

·the relevant Summary offence of Possessing Ammunition, which carries a maximum of 40 penalty units.

2You have admitted a criminal record.  That has relevance, of course, to the sentencing exercise and, in particular, it reveals that you were on a Community Corrections Order at the time of the commission of these serious offences.

3The circumstances of your offending are set out in Exhibit C, which is the most recent Summary of Prosecution Opening for plea, which sets out the pertinent circumstances of your offending in detail, and in detail, which I am not going to recite herein.  Exhibit C forms part of these Reasons for Sentence.  In brief terms, you were involved in a planned kidnapping, which had some very serious aspects to it.  It is a very serious offence, kidnapping.  It is a Category 2 offence, of course, but there can be variations in the range as to different levels of seriousness of committing an offence of this type.  Your commission of it, is very serious given the planning involved and the conduct engaged in during the imprisonment of your unfortunate victim.

4As I said, I am not going to go into detail in relation to those facts, but your involvement in the seizing and apprehending and imprisoning whilst transporting your victim, is set out in the Opening, and it is something that you engaged in, fully aware of what you were doing.  You also recorded, on a phone, the unfortunate victim having his head shaved or hair being shaved off his head.  You were also involved in taking a gun out of a bag, and that is the subject of the possess prohibited person, which is a serious offence also.  You took a gun out of a bag and handed it to a co-offender, who then used it in a threatening and terrifying way towards your victim.

5It is very serious offending and no doubt has had longstanding and significant impacts upon your victim, who was too overwhelmed by the experience and the ongoing sequelae of the offending to make a victim impact statement, but I take into account that it was a terrifying and impactful and traumatic experience for him.

6It is certainly, by some way, the most serious offence you have committed in your history.  You have a relatively brief history and I accept what Mr Mackinnon, the psychologist who assessed you, observed in relation to that history; that it is explicable in relation to a vulnerability to drug use and drug excesses, and I do accept, based on all the material before me, that your vulnerability to drug use, which is a real problem from a criminogenic point of view, has its origins in childhood trauma and early trauma, and I accept that you are battling PTSD as a result of those experiences, and that that, in part explains your descent into illicit substance abuse.

7Ms Morgan, in her excellent plea on your behalf, relied upon outline of submissions which sets out your personal background.  Ms Morgan expanded upon your background in oral submissions.  Your background is also set out in the Youth Justice suitability assessment report that I sought.  You were 20 at the time of the commission of these serious offences.  You are soon to be 21, and given that fact there was some urgency in getting your matter on, but also understandable hesitancy or concern as to whether you were going to be assessed as suitable.  Had you not been assessed as suitable for Youth Justice, I would not be taking the course that I am ultimately going to be taking.

8Your personal circumstances are significant from a sentencing point of view.  You are from the minority Shia Hazara grouping, having been born and spent your early life in Afghanistan.  Your family fled the Taliban in Afghanistan when you were very young, around six years of age. 

9In around 2011, not long after you fled Afghanistan, your parents made the decision that your father would travel to Australia to seek asylum, and he made that dangerous journey by boat.  He spent time in detention in this country before being granted refugee status.  Between approximately 2012 and your arrival in Australia in 2019, you and your mother, and two older sisters, and one younger brother lived on the border of Pakistan as you waited for your father to be granted refugee status, and for a course to be taken so the rest of the family could reunite.  During that period, you did not have the benefit of your father's guidance and influence during those formative years.  Prior to arriving in Australia, I was told, you had not attended school and it is an understatement perhaps to say that you had experienced a childhood characterised by exposure to violence, uncertainty and poverty. 

10I was told, and I accept, that you witnessed people being removed from a bus, or at least one person being removed from a bus and shot, friends disappearing never to return, witnessing protests that often culminated in violence and death.  In 2014, you were in the proximity of a bomb blast and received shrapnel injuries. You carry scars from those injuries to this day.  I was told, and I accept, that for many months after that bomb blast, you struggled to toilet. You have PTSD flowing from these experiences, and I was told and have no difficulty accepting that since you have been remanded at Fulham Prison, you are having intrusive thoughts, invasive symptoms of PTSD.

11You have previously had no real guidance as to how to deal with these symptoms and, as I have observed earlier on, you have gravitated towards illicit substance use, which has got a direct correlation to your offending and the offending before me.  It has been submitted, and I have no difficulty accepting, that the Bugmy principle[1] applies in your case, and there is a direct connection, on my assessment, between early childhood trauma and experiences, and illicit substance use, and there is a connection between that substance use and the offending.

[1]Bugmy v The Queen [2013] HCA 37

12Not surprisingly, given that background I have set out, and late onset schooling, you have great difficulty with literacy but, to your credit, this is something you have been endeavouring to address.

13Whilst I am summarising some of those personal matters to you that are relevant to sentence, it is important to pause and observe that whilst these matters are important in an assessment of your subjective responsibility or subjective culpability, I also have to take into account the seriousness of the offending, the importance of general deterrence, the importance of denunciation. I cannot help but pause and observe that your unfortunate victim would surely be experiencing many intrusive and invasive thoughts as a result of your offending and the offending of your co-offenders.  The sentencing exercise is not a balancing exercise in that sense, or an eye for an eye, but I simply pause to observe that in passing.

14You now have been in custody for over six months, and I accept that that would not have been an easy experience for you at all, and I take into account the matters raised in Mr Mackinnon's report but also the submissions made by Ms Morgan.

15Your family has demonstrated that they are a hard-working law-abiding family and are quite shocked and dismayed at your descent into serious criminality.  I am satisfied that you recognise this and it is a motivating factor for you to address your problems, which  primarily, on the surface, is your drug issue, but there are clearly underlying issues that are driving that drug use that probably fall under the PTSD umbrella and exposure to trauma. But I am satisfied you are genuine in your willingness to address the behaviours, because you do have goals; you want to embark on an electrical apprenticeship, you want to address your literacy issues, you have completed courses in custody in relation to cannabis use, and you have enrolled in education for English classes, commencing these classes at Fulham Prison.

16This willingness to educate yourself and provide yourself with the tools to resist illicit substance use and deal with triggers and have strategies to deal with all of that, and to improve yourself to a position where you can have gainful employment opportunities available to you, is one of the reasons why when considering the term of imprisonment or detention, that detention in a Youth Justice Centre has some benefits and attractions because there are such opportunities for a young person, such as yourself, that provide a better environment to take advantage of them, than in adult custody where you currently reside.

17There is no option but to impose either a period of detention or a period of imprisonment because it is a Category 2 offence and there has been no submission to the contrary, but, as I had indicated in the sentencing indication, if assessed as suitable, it would be a period of detention that I am considering.  I have no hesitation in maintaining that course.

18An important sentencing factor in mitigation is not just your youth and not just the consequences of your mental health challenges, which I have touched on, and will increase the hardship of custody as compared to a person who does not suffer from PTSD or other mental health concerns, is the prospect of deportation.  I am told that the operation of the Migration Act, which relates to a term of imprisonment of 12 months or more, applies as equally to Youth Detention.  The prospect of deportation is a factor which bears upon the impacts of a term of detention, because you have got that hanging over your head; you would be concerned about that.  Your family is here and I understand, of course, you desperately want to remain with your loved ones.  The fact that a period of detention can result in you losing the opportunity to settle permanently in Australia is something that I must take into account, and I do so.  It would cause that prospect of visa cancellation, which will happen as a result of the sentence I impose, as I understand it, and then you have to take certain courses to seek revocation of that or appeal of it.  That potential for deportation will cause significant ongoing anxiety for you to a significant degree, and I take that into account.

19I consider the prospects of rehabilitation are good because they hinge on you addressing the drug use and addressing the effects of trauma, so addressing the PTSD and having greater insight into it, and I am quite sure that you will get those opportunities within the structure of Youth Justice and Youth Parole.

20So when I have considered all of the factors, including the seriousness of the offence, the impacts on the victim, the need for denunciation and general deterrence, but also having appropriate regard to matters personal to you and particularly those points in mitigation that are of significance, I sought the Youth Justice report, the suitability for Youth Justice Centre report, and there are some concerns noted in relation to insight, but that is something that can be worked upon during the period on your sentence.

21The authors of the report consider that, in particular, s32(a)[2] has application, there are reasonable prospects for your rehabilitation and, to a lesser extent, the impressionability, but  courts know from experience that for a young person, such as yourself, adult gaol exposes you to the influence of older prisoners, and I have made the assessment based on the report but also based on my understanding of what is available in Youth Justice and based upon the information I have about you, that you will be vulnerable to undesirable influences in adult prison, and a period of detention in Youth Justice is the more appropriate outcome and it is an outcome which can also reflect the sentencing factors that I must reflect in sentence, and to which I have referred.

[2] Sentencing Act (Vic) 1991, s.32(a)

22So, accordingly, I am going to sentence you as follows, Mr Hadairi.

23In relation to the charge of Kidnapping, that is Charge 1, you are sentenced to be detained in a Youth Justice Centre for a period of 20 months.

24In relation to Common Assault, Charge 2, six months' detention in a Youth Justice Centre.

25Charge 3, a Prohibited Person Possessing Firearm, 12 months' detention, Youth Justice Centre.

26In relation to the relevant Summary offence of Possess Ammunition, you are fined $800.

27Charge 1 is the base sentence.

28I direct that two months of the sentence imposed on Charge 2 and four months of the sentence imposed on Charge 3 be served cumulatively upon the base sentence being Charge 1.  The sentences are otherwise to be served concurrently.

29That makes a Total Effective Sentence of 26 months' detention in a Youth Justice Centre.

30I declare, pursuant to s18, that you have served 216 days as pre-sentence detention.

31Pursuant to s6AAA, were it not for your pleas of guilty, I would have sentenced you to a period of three years' imprisonment with a non-parole period of two years and three months.

32Now, are there any other orders that I need to make?

33MS BURNETT:  I don't believe so, Your Honour.

34HIS HONOUR:  No.

35MS BURNETT:  That's with conviction in terms of Your Honour's orders?

36HIS HONOUR:  Yes.

37MS BURNETT:  Thank you, Your Honour.

38HIS HONOUR:  All right.  So there is no disposal orders or anything like that, is there?

39MS BURNETT:  No, Your Honour.

40HIS HONOUR:  All right.  Well, Mr Hadairi, you will be transferred from prison to a Youth Justice Centre for assessment and you will be expected then to engage with parole planning and obviously and the issue in relation to visa and immigration will be something that will be worked through and discussed with you in your detention also but you will have opportunities for education and I urge you to take those opportunities to the best of your ability.

41All right.  Yes.  We will adjourn the court.

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