Director of Public Prosecutions v Hamoodiarab
[2012] VCC 1196
•29 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00405
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAHMOUD HAMOODIARAB |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 29 June 2012 | |
CASE MAY BE CITED AS: | DPP v. Hamoodiarab | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1196 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Triandos | |
| For the Accused | Mr F. Cameron |
HER HONOUR:
1 Mahmoud Hamoodiarab, you have pleaded guilty before me to two charges of armed robbery and one charge of attempted armed robbery. The facts underlying your offending are as follows:
2
At about 1.10 am, on Sunday 14 August 2011, you started following a man, Robin Taudy, along Barkly Street, Footscray, over about 100 metres.
Mr Taudy was an international student who had come to Australia just in August of that year. After the intersection with Donald Street, you walked in front of Taudy, pulled out a flick knife and held it down his side. You asked him for money. Taudy took out his wallet and threw cash, which was Australian, Euro and US money, to the ground. You also told him to hand over more money and his mobile phone and you took his backpack, containing Mr Taudy's passport, bum bag, camera filter, a book and house keys. He also threw his mobile phone on the ground. You picked up everything and then ran towards Taudy holding the knife and telling him to run. Taudy ran towards another street. Police were called when he got home.
3 Charge 2, relates to an incident on 26 October 2011, when another man, Nathan Gelandman, was walking home along Nicholson Street, Footscray, when he was approached by you, who had been jogging behind him. You ran alongside Mr Gelandman and raised a small knife in the air above your head, demanding his wallet. Mr Gelandman took out his wallet and gave you $10. You took the wallet and looked through it before handing it back. You demanded more and Mr Gelandman threw his wallet on the ground and ran towards the Footscray Police Station. On arrival, he realised he has sustained a small cut on his finger during the incident.
4 Later that day, at about 6 pm, one Barry King, who was walking along a street in West Footscray, was talking to his sister on the mobile phone, when you walked up and tapped him on the shoulder. Mr King turned around, you told him to be quiet and demanded money, raising a knife, about 20 centimetres long, above his head. Mr King swung a laptop, which he had been carrying over his shoulder, at you, while screaming out for you stop. You continued to advance on Mr King, then Mr King swung the backpack and a bag with six packs of beer in it and hit you with them. You punched Mr King to his forehead with a clenched fist and Mr King suffered a cut to his forehead and fell to the ground. His hands and jacket sleeve were cut during the struggle. You ran away and were chased by King, who lost sight of you. He then called police who patrolled the area looking for you. Police saw you in Summerhill Road and, as the police car pulled up, you ran away. You were chased and, during that chase, those pursuing you saw you throw a knife onto the roof of a house in Summerhill Road. This knife was later retrieved by police.
5 Eventually you were arrested and taken to Footscray Police Station for interview. At first in your interview, after telling police you were a refugee, a permanent resident and a student, you said you had told a man to give you money and got into a fight with him, that you had run away because you were scared and did not have a knife. You said you had drunk five or six glasses of wine. You said you were thinking about how to come up with money for rent, and then later in the interview said you did have a kitchen knife, which you had taken from home, and which you had thrown on the roof because you were scared.
6 The maximum penalty for armed robbery is 25 years' imprisonment. The maximum penalty for attempted armed robbery, which is the incident relating to Mr King, is 20 years' imprisonment.
7 You were charged on 26 October 2011 and at committal, which proceeded by way of a straight hand-up brief, you pleaded guilty. You have therefore pleaded guilty at the earliest opportunity and ultimately, in relation to Mr King, were cooperative with them. However, on 27 October 2011, I do note that in relation to the first two armed robberies you told police you had no recollection of committing those offences.
8 A victim impact statement from Mr King was tendered on the plea. Mr King spoke of the effect your attack had upon him, how he felt unsafe in his community, often felt anxious, was scared to go out and was very vigilant for his safety. This is often the experience of persons who have been the subject of crimes such as this. It has an ongoing effect and many people take a long time to recover from such crimes.
9 I now turn to your personal circumstances. You are 20 years old and were 19 at the time of this offending.
10 I received great assistance in the plea from a number of reports handed up by persons who have been involved in your life since you were released on bail after eight days in custody, that release being in early November 2011.
11 I turn first, in particular, to a report from Ms Donna Ascher, the Senior Court Advice Officer with the Youth Justice Western Unit, at the Sunshine Magistrates' Court. Ms Ascher has had contact with you ever since you were released on bail.
12 You came to this country as a refugee, arriving in January 2011. You are the youngest of eight children. Your family is Arabian and live in Iran. In Iran, Arabic people are treated with great discrimination. They are abused. I note in your application for refugee status, made whilst you were held in detention on Christmas Island, you talked about how you were treated differently at school, that your educational and employment opportunities were limited. You had one brother who involved himself in protest against the treatment of your people by the government and he was imprisoned and tortured. On another occasion you were at a beach with other Arabic friends when local police arrived, questioned you, a number were beaten, two were taken away, held in custody and tortured and you, yourself, were attacked. You received a serious machete injury to your arm, lost consciousness and were left for dead. Following this, you, yourself, became involved in political activity, protesting the position of Arabian people in that country and were informed police were after you. It became clear to you that you had to leave the country in a hurry and you did so with the assistance of a friend, travelling through a number of countries, including Syria, before being linked up with a people smuggler and arriving in Australia after being at sea for 24 days. During that time, that is the time that you were sailing to Australia, in addition to the trauma you had already suffered, you were further traumatised by the fear that you experienced because the boat was sinking.
13 You were detained in Immigration for four months on Christmas Island. You told psychologist, Guy Coffey, whose report dated 18 June 2012, that you found the detention difficult, you were only 19 years old, and you were separated from your family. You had another brother who had also arrived as a refugee, but you were also extremely worried about your older brother who was imprisoned in Iran. You witnessed acts of self harm and suicide at the detention centre by other inmates, which of course you found very distressing. You received a protection visa in May 2011 and moved to Footscray, in Melbourne, where you had a cousin. You began sharing a flat with your cousin, although you did travel a little around Australia because of an inability to find work. You told Mr Coffey, that whilst you were relieved to have received asylum in a safe country, you found it very difficult being away from your family and that you felt alone and overwhelmed. You spoke no English. You unsuccessfully looked for work in Melbourne, and then went to Sydney and Adelaide. In mid July 2011, you returned to Melbourne, still unemployed, and began attending English classes.
14 About a month after your release from detention in Melbourne, you started seeking out the company of older men, who were from your culture. Unfortunately, they were a bad influence upon you, in that they used a great deal of alcohol and cannabis, both substances you were inexperienced in the use of. You received little psychological support when you came to Melbourne. You began using alcohol and drugs as a form of self medication for your loneliness, for your psychological distress, which arose from your terrible experiences in Iran, from the trauma of being separated from your family and the trauma of travelling under most frightening conditions in a sinking boat from Indonesia. There is no doubt that your situation was extremely difficult.
15 Eventually, it appeared that some moneys were owed on your flat, which you thought had been paid for by Centrelink and this prompted you to behave in a way which I accept was quite uncharacteristic of you. I accept that at the time you committed these offences, you were psychologically at a very low ebb, that you believed you had no support and nowhere to turn, that you had no means of obtaining this money and that you were under the influence of both drugs and alcohol when you committed these offences. Two of those offences I note were committed within 24 hours of each other.
16 I return now to Ms Ascher's report. She stated that:
"It appears that since Mahmoud's release from detention, he had no real positive role model providing appropriate guidance, even amongst the older people he was associating with at the time. It is reported by Mahmoud that there had been times in the past that he had resided in squalid housing conditions with other refugees, which was in direct contrast with what he had been accustomed to in his home country with his family. Mahmoud started to question whether he had made the right choice about fleeing to Australia."
17 You were assessed as being suitable for supervised bail and were released on 2 November 2011. Mr Steve Riordan, an extremely experienced member of the Youth Justice Advice Office, found you to be presenting with a very low mood and emotional upset during the assessment. You were found suitable for supervised bail and were placed on that order with very stringent bail conditions.
18 Ms Ascher wrote that she has been the primary case manager from the time you were released on bail and she said that your response to that supervision had been excellent and that you were a model client. She said you had attended all scheduled appointments, and then went on to describe the incidents in your life that appeared to have made things in Australia a great deal easier for you since.
19 Of extreme importance is the fact that you met a gentlemen, Mr Jean Pierre Boutefeu. You met Mr Boutefeu by chance. He, himself, came to this country as a migrant and was immediately sympathetic to your plight, he empathising with the difficulties that you were experiencing. He continued to help you, to the point that ultimately he realised that your cousin was trying to take advantage of your situation financially in the flat and moved you into his own home, where you have remained since. In that time, he made sure you attended all appointments with Ms Ascher and, very importantly, he pushed for you to get urgent attention for your deteriorating mental health. You had been on the waiting list for Foundation House and eventually you were seen by them and have attended upon them since.
20 Extremely importantly, Mr Boutefeu's heroic efforts on your behalf extended to finding you a job, which you now hold, at a food processing factory in Altona, where you have worked since 26 November last year. This has allowed you to be financially independent, and I received a reference from your employer attesting to your very good qualities as a worker there. You have been moved from packing to the production line and your brother, who has now been released from detention, is also working there in your previous position. You enrolled in April this year to be trained at your workforce in first aid, skills building and delivery and Certificate 3 food processing.
21 Your brother also came to live with Mr Boutefeu who, again, seems to me to be a living lesson to us all, but was not comfortable there and moved out with relatives, however it appears he is progressing well. Mr Boutefeu also ensured that you assist in domestic chores around the house, which you found difficult, as culturally they are jobs taken up by women. This is a very important thing for you to learn in this country, because it is most likely that when you take wife, Mr Hamoodiarab, in this country, if that happens, she will expect you to hang out the washing, just as she does, so that your chances of having a happy marriage in Australia have been very much enhanced. You also pay board to Mr Boutefeu, which is extremely important, as that ensures you are continuing to learn to be independent and, in my view, that is an extremely important aspect of your life. You have clearly come to this country traumatised through your experiences in Iran and through your separation from your parents, and it would be easy for you to, if I can use the colloquial, "fall in a heap" and become very dependent on others. This would not be of assistance for your ultimate wellbeing.
22
Life has dealt you some very difficult hands, Mr Hamoodiarab, but that is life and you do have to deal with it as best you can. Your ability to continue to learn to speak English, to deal with psychological problems through therapy, (and I might add that anybody who had experienced what you had would be experiencing precisely those problems, so there is no shame attached to them) your capacity to live in accommodation for which you pay, your capacity to live independently in this community, even though you have support, are extremely important. The court certainly thanks Mr Boutefeu for his efforts on your behalf, because the capacity to place you on a community corrections order, which is the order I intend to impose, would have been made far more difficult, even if I only had the very excellent report of
Ms Ascher, who also seems to have taken an extraordinarily kind and helpful interest in you, without them.
23 Ordinarily, people charged with the sort of offending that you have faced before this court could only expect to be placed in gaol, but because of the very unusual and difficult circumstances underlying this offending, even the prosecution has agreed that you should not be sent to gaol but placed instead on a Community Corrections Order.
24 I note that you have been assessed as suitable for a Community Corrections Order. You were described by the Community Corrections Officer as extremely polite and cooperative. I need to explain to you that what a Community Corrections Order involves is an order by this court that you remain in the community as long as you do not offend again, and that you undertake certain conditions, which will be overseen by the Community Corrections Office. I need to explain the conditions to you and then asked if you are willing to be placed on this order. The conditions are that whilst the order is in place, you must not commit another criminal offence anywhere in Australia. You must report to and receive visits from a Community Corrections Officer. You must report to the Community Corrections Centre, the details of which will be set out on a piece of paper that we give you, within two days of the making of this order, that is two working days, so that means by Tuesday of next week. You may not leave Victoria without the permission of a Community Corrections Officer. You must inform the Community Corrections Office of any change of address or employment within 48 hours of that change. You must obey all lawful directions of the Community Corrections Officer.
25 There are going to be some special conditions that I will impose on this order. I have decided not to impose an order relating to unpaid community work, because you are employed five days a week in a manual occupation and you have continuing damage to your hand from the machete attack in Iran, which makes it difficult for you to undertake heavy lifting or other tasks that are normally associated with unpaid community work. I am going to order that you are assessed and treated for alcohol and drug use. I note that you have very much cut down your use of alcohol and no longer smoke cannabis, but it seems to me important you have some counselling about this, so you understand the damage that you can do to yourself.
26 Whilst life is going well for you now, you still are carrying the remnants of trauma within you. Nobody has a perfect life and it seems to me that you are vulnerable to returning to alcohol and drugs, perhaps, to assist you through times that may arise in the future which you may find all the more difficult because of the trauma you have endured. You remain separated from and concerned about your family. I was informed they appear to think you are financially more prosperous than you really are and whilst you have lessened the amount of money that you were sending them, I have no doubt, for example, that if they write to you of continuing difficulties and the need for more money, this will distress you quite a bit because you are far away, and that is simply an example of the sort of difficulty I can see you encountering which might lead you to become depressed and then use drugs and alcohol again.
27 I am also going to have you assessed for mental health problems. I think you need to continue with some therapy to assist you with the trauma that you have suffered at such a young age in your life. This is to assist you in overcoming feelings of depression that may swamp you from time to time, to help make your life less anxious, so you can settle more happily into your life here. This is very important, because courts like these see many, many people who have experienced great difficulty in their lives and they carry psychological scars with them for many years which, unless they are properly treated, can interfere in their day to day functioning. You are a very young many still, you have your whole life in front of you, and the court hopes that this order will assist you in leading that life as happily and as successfully as you can.
28 You will also attend what are called re-offending behaviour programs, which are also designed to assist you to find other ways of dealing with problems that can arise in your life, other than offending as you did.
29 I am also going to order that there be supervision and I think I will order judicial monitoring, that is reports to me every three months, as I would like to know how you are progressing. You will not have to return to court, I will simply be sent reports from the Office of Corrections about your progress.
30 Are you willing to enter this order?
31 PRISONER: Yes.
32 HER HONOUR: Thank you, stand up please.
33 On each of the charges, you are to be convicted and placed on a community corrections order for two years. That means all those conditions will have to be abided by you for the next two years. There are two ways you can breach the order. The first is by offending in a criminal way again. The second is by not abiding by the conditions of the order. I am fairly confident, however, that you will successfully complete this order.
34 If you do breach the order, you will be brought back before me and I will
re-sentence you on these offences, and that sentence is likely to be more severe than the one I have handed down today.
35 MR TRIANDOS: Is that with or without conviction, Your Honour?
36 HER HONOUR: It really should be with conviction, should it not? It is a shame really because - - -
37 MR CAMERON: I am not really in a position to argue other than with a conviction, Your Honour.
38 HER HONOUR: No, I do not think so. It is a shame because it is not a helpful thing for a young man to have at this stage of his life.
39 MR TRIANDOS: It is the nature of the offences, Your Honour.
40 HER HONOUR: It is the nature of the offences.
41 MR CAMERON: Your Honour can impose a non conviction disposition, but I take Mr Triandos' point.
42 HER HONOUR: I know, I am just - it is a bit of wishful thinking. I mean I have to take into account the fact that I must impose a disposition which reflects the seriousness of the offending and not just the position of the person in the court.
43 MR CAMERON: Yes.
44 HER HONOUR: It is just he is so young, he is just out here, he has got settled, he has got work and he is going to be carrying this wretched conviction around his neck.
45 MR CAMERON: I have not actually taken any investigations as to what impact a conviction may have on the status of his permanent residency visa. I should have, but I must admit my focus was more on - - -
46 HER HONOUR: Look, if there was anything that came up with that, I would expect you to come straight back to me and a letter from me about that.
47 MR CAMERON: As Your Honour pleases.
48 HER HONOUR: All right, yes. What do you think, Mr Triandos?
49 MR CAMERON: I will hand over to my learned friend on this Friday afternoon.
50 HER HONOUR: It is a very exceptional case.
51 MR TRIANDOS: I am slow to make a submission without proper instructions, Your Honour. All I know is that there are three offences here, two of them armed robberies.
52 HER HONOUR: Yes, they are nasty and they involved a bit of - - -
53 MR TRIANDOS: So if it was just the attempted armed robbery, I would not have an issue with it.
54 HER HONOUR: No, of course not.
55 MR TRIANDOS: That is the problem, Your Honour.
56 HER HONOUR: No there are just the two and it involves a scuffle.
57 MR TRIANDOS: So we would - - -
58 HER HONOUR: I think it would have to be, it is going to have to be a conviction.
59 MR TRIANDOS: Yes.
60 HER HONOUR: But, look, if there are any problems at all in relation to his visa, you come straight back to me, all right.
61 MR CAMERON: We shall, Your Honour. Thank you.
62 HER HONOUR: All right.
63 (Community corrections order signed and acknowledged.)
64 (Section 464ZF order signed and acknowledged.)
65 I am going to order a retention of the saliva sample that was taken. Shame about that conviction. Well, he is not going to gaol. Most people who come before the court on this sort of matter can look at something like two years in gaol, so - minimum.
66 I hope now that this is all over and you get on with your life, sir, that you have a good life in this country and that you have a successful future. I am quite sure you can. It must be incredibly hard being a refugee when you are such a young man, but I am sure you have the intelligence and the perseverance to make the best of this life you have here. I hope I never see you again, just as much as you hope you will never see me again. All right, come out of the dock, sir.
67 Thank you so much, Ms Ascher, and thank you, Mr Boutefeu for so much, because it is lovely for the court to see the sort of enormous assistance people can give other people and he really needed it and it made my sentencing task immeasurably easier.
68 VOICE (from body of court): Thank you.
69 VOICE (from body of court): Thank you, Your Honour, you have been most understanding.
70 HER HONOUR: Not at all, not at all, thank you.
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