Director of Public Prosecutions v Hassan

[2015] VCC 223

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00025

DIRECTOR OF PUBLIC PROSECUTIONS

v

IDRIS HASSAN

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2015
DATE OF SENTENCE:	27 February 2015
CASE MAY BE CITED AS:	DPP v HASSAN
MEDIUM NEUTRAL CITATION:	[2015] VCC 223

REASONS FOR SENTENCE
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Subject: Armed robbery – theft – reckless conduct endangering life – criminal damage – recklessly causing injury.
Catchwords: Criminal law – sentencing - reckless conduct endangering life.
Legislation Cited:
Cases Cited: R v Verdins (2007) 16 VR 269.
Sentence: 4 years 6 months imprisonment (total effective sentence), with a non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Offender	Mr D. Dann	Matthew White & Associates

FIRST INDICTMENT

1HER HONOUR: Hassan Idris, on the first indictment before this court you have pleaded guilty to one charge of armed robbery.  The maximum penalty for armed robbery is 25 years' imprisonment.

SECOND INDICTMENT

2On the second indictment you have pleaded guilty to a charge of theft, reckless conduct endangering life, criminal damage and causing injury intentionally.  You have also pleaded guilty to two charges of causing injury recklessly.  The maximum penalty for the offences of theft, reckless conduct endangering life, criminal damage and intentionally cause injury is ten years.  The maximum penalty for recklessly cause injury is five years.

SUMMARY OFFENCES

3You have also pleaded guilty to summary offences of unlicensed driving, for which the penalty is a fine not exceed 25 penalty units, or level of imprisonment of not more than three months; refusing a preliminary breath test, where the penalty is a fine not exceeding 180 penalty units or a term of imprisonment of not more than 18 months; possessing a controlled weapon without excuse, for which the penalty is 120 penalty units or imprisonment of one year; possessing cartridge ammunition without a licence or permit, for which the penalty is a fine of 40 penalty units; committing an indictable offence on bail, for which the penalty is 30 penalty units or imprisonment for three months.

THE ARMED ROBBERY

4The circumstances surrounding the offence of armed robbery are that you committed this offence on 17 June 2014 at approximately 6.20 pm, when you attended at a 7-Eleven convenience store at the corner of Johnson Street and Nicholson Street in Fitzroy. 

5Once inside the store you selected a 1.2 kg can of pedigree dog food from the store shelf and approached the store assistants with the can, telling the attendant that you were there to take his money.  You then dragged him to the service area and ordered him to put money in a plastic bag.  You demanded that he did it fast and struck him with the can.  You then left the premises with the money in a plastic bag.

6Later that day a Fitzroy resident found the plastic bag with coins totalling $88.60.  They found a hoodie that you had worn and two pieces of paper with your fingerprints on them.  When the police searched your residence they found shoes matching those depicted on the CCTV footage of the robbery.

THEFT

7Turning to the offences on the second indictment, Charge 1 of theft relates to your action on 27 June 2014, when you stole a Holden Rodeo utility belonging to a Mr Tepper.  Mr Tepper had parked the utility at the BP service station in Norlane at approximately 5.15 in order to obtain petrol.  Unfortunately he left the keys in the ignition, and when he went to pay for his petrol the utility had gone.  Inside there was a mobile phone, some Blue Steel work boots, various tools worth about $3,500, a power tool and tool belt valued at approximately $400.  These items have not been recovered.

RECKLESS CONDUCT ENDANGERING LIFE & CRIMINAL DAMAGE

8With respect to Charge 2, of reckless conduct endangering life, and Charge 3, of criminal damage, the circumstances are set out in some detail in the prosecution opening.  In summary, these offences were committed on Saturday 28 June 2014, when you drove the Holden Rodeo utility along the footpath in Rathdowne Street, Carlton. 

9On the CCTV footage played at the court the utility is seen mounting the footpath on the corner of Newry and Rathdowne Streets.  There were tables and chairs set out on the footpath outside the Paragon Café.  A witness observed your vehicle accelerating at a fast speed directly towards the table and chairs on the footpath.  He described you as "flooring the accelerator" and driving at a speed which made him think that your actions were intentional.

10Another witness described you as “looking straight ahead and not attempting to swerve or change course”.  The vehicle travelled at speed along the footpath for a distance of approximately 120 metres, passing Tre Bicchieri Café, the Small Victories Café and Delgani Bakery Café, knocking over and smashing furniture.  People on the footpath were forced to jump back out of the path of your vehicle.  Although at one stage the CCTV footage showed to the court revealed that the brake lights appeared to have been activated on the vehicle, but you did not stop or change course to avoid anyone.

11The vehicle then left the footpath, travelling north on Rathdowne Street.  On the CCTV footage people are seen coming out of the various cafés, no doubt curious and concerned as to what has just happened.  One woman is seen running back in the direction of the Paragon Café, and then apparently changing her mind and turning back in the opposite direction.  This woman just escaped being hit by your vehicle which, travelling at a high speed, had returned once again to the footpath in Rathdowne Street and had crashed into the window of the Paragon Café.  The impact of this collision caused the window of the café to shatter and the doors to burst off their hinges.

RECKLESSLY CAUSE INJURY (TWO COUNTS)

12Charge 4, of recklessly cause injury, relates to injuries sustained by Deborah Westfield, and Charge 5, to injuries caused to Ms Catherine Clarke.  They were at the Paragon Café celebrating Deborah Westfield's birthday and seated at the table closest to the doorway, which was pushed up against the window. 

13

When your vehicle crashed into the window of the café Ms Westfield grabbed Ms Clarke and pushed her away from the window to the back of the café. 

Ms Westfield received a small bruised area to the right cheek, soft tissue injuries to her face and right ankle.  Ms Clarke received midline tenderness in her back region and some optical bogginess under her eye, as well as a three centimetre horizontal scalp laceration associated with a bleed.  A CT brain scan performed at the time demonstrated tissue swelling adjacent to the shunt reservoir. 

14Sonia Hancock and her husband, Justin Chen, were at the Paragon café and your vehicle narrowly missed them and other patrons in the café.  A witness who saw your vehicle turn into the café described it as having made an aggressive and violent turn, and as travelling at a fast rate of speed. 

15After the collision, another witness observed you standing outside the café.  He described you as looking “completely wired”.  He said you were half smiling, which he found alarming.  He also you said you looked amused but confrontational.  You began walking along Newry Street towards the cemetery.

INTENTIONALLY CAUSE INJURY

16Charge 6, of intentionally cause injury, relates to injuries caused to Detective Senior Constable Saul.  He approached you in Rathdowne Street, and produced his police identification and badge.  He yelled at you a number of times to get to the ground, however you ran away from him, eventually ending up climbing the cemetery fence in Lygon Street. In trying to apprehend you Detective Senior Constable Saul suffered bruises to both his hands.  He also suffered a broken nose when you punched him in the face twice with a clenched fist. 

17You then fled into the cemetery, where you were found by police hiding behind a pile of woodchips.  You were arrested and given a caution and informed of your rights.

SUMMARY CHARGES

18In relation to the summary charges, the charge of possess cartridge ammunition without a licence relates to the fact that police found a green shotgun shell in your left top front pocket of your shirt.  Possess controlled weapon without excuse relates to a silver box cutter that they found.  You were charged with refuse to undertake a preliminary breath test, as you refused to do so when you were requested, and investigations revealed that you were not licensed to drive a motor vehicle at the time of your offending.

19With respect to the committing an offence while on bail, you were on bail at the time of these offences.  You had been charged with theft on 21 April 2014, and on 27 April 2014, some six days later, you were charged with conduct endangering serious injury, for which you were bailed on 29 May 2014. 

20Apparently you entered an apartment of a neighbour who had three young children in Footscray.  There was a physical altercation and you put pressure around her neck.  The fact that this incident occurred some five to six weeks before these current offences is a matter of considerable concern.

VICTIM IMPACT STATEMENTS

21

The prosecutor tendered three victim impact statements relating to your offending on 28 June 2014.  There are statements from Ms Clarke,

Ms Westfield and Detective Senior Constable Chris Saul.  It was apparent from Ms Clarke's statement that your actions on that day have affected he greatly.  While her physical injuries were not major, she is under the care of her doctor and a psychologist for post-traumatic stress disorder.  She describes feeling frustrated, angry, depressed, shocked and afraid.  She has lost confidence and she stated that your offending has impacted on her employment and her relationships.

22In her victim impact statement, Ms Westfield state that although her bruises and soreness had healed, the randomness of the incident has left her with fear in respect of loud car noises.  She can no longer enjoy a cup of tea or coffee on the footpath because of fear of a vehicle mounting the footpath. 

23As a result of your assault on him, Detective Senior Constable Chris Saul required surgery on his nose.  He has a permanent disfigurement and suffers from sinus pain.

PERSONAL CIRCUMSTANCES

24

Your personal circumstances were set out in a report from Dr Ong, a forensic psychologist.  You were born in Somalia, you are 27 years old, you have

17 brothers and sisters.  Apparently your father was a farmer and your mother a cook.  You arrived in Australia as a refugee when you were about eight years old, in about 1995. 

25You told Dr Ong that you didn't recall much of your childhood.  You denied that you had had any direct exposure to traumatic incidents.  Your family lived in Reservoir, where you attended school to Year 9.  You did not finish Year 9, however, as you were asked to leave due to behaviour issues.  After leaving you school you had various manual jobs, including a pre-apprenticeship as a tyre fitter for two years.

26You have a history of substance abuse, including ecstasy and ice.  You told Dr Ong that most of your offending was related to drugs or alcohol.  This claim is consistent with the nature of your numerous prior convictions from 18 court appearances.  Your priors include convictions for possession of cannabis, drunk disorderly, assault, resist police, thefts, burglaries and obtaining property by deception.  You have been in custody before at the Malmsbury Youth Training Centre and in adult prison.

27In 2011 you were admitted to the Thomas Embling Hospital from the Melbourne Assessment Prison.  Dr Ong noted that your discharge summary described you as presenting with increasingly bizarre disorganised and paranoid behaviour.  It was also noted that you had committed an unprovoked assault on a co-prisoner.

28Your discharge diagnosis was schizophrenia and polysubstance abuse.  In the opinion section of his report, Dr Ong described you as being a man of limited impulse control, exacerbated by schizophrenic illness and substance abuse.  Your mental state decompresses when under the influence of substance, including amphetamines and alcohol.  Though less dramatic, your pattern of offending has been similar in the past.

29In his opinion, to reduce the risk of you offending in the future it was important to maintain stability of your mental state.  This involved ensuring compliance with prescribed antipsychotic medication, linkage with area mental health service for follow-up and case management, as well as direction to undertake appropriate drug and alcohol counselling.

THE DEFENCE – MITIGATING FACTORS RELIED ON

30In mitigation of your offending your counsel relied on your plea of guilty, which, it was submitted, saved the time and expense of a trial, and the victims the trauma of giving evidence. 

31The first principle enunciated in the case of R v Verdins, in that although it was conceded that there is difficulty in drawing a specific link between your schizophrenia and your offending, it was submitted that you were not an appropriate vehicle for specific and general deterrence due to your mental health issues.

32The fifth principle in Verdins' case was also relied on. In this respect your counsel relied on Dr Ong's opinion that any term of imprisonment was likely to weigh more heavily upon you due to your mental health issues. In addition, the sixth principle in Verdins' case was relied on. This was on the basis that due to your psychotic illness and impulsive personality, you were spending a considerable amount of time in custody in management units, which was essentially solitary confinement.  Counsel relied on Dr Ong's opinion that such confinement was highly detrimental to mental health.

33Your counsel also relied on the principle of totality, in that your offending was submitted to be an ongoing episode of behaviour.  Consequently, he submitted that considerable concurrency was appropriate.

THE PROSECUTION

34It was conceded that in the circumstances of your offending, a period of imprisonment was the appropriate sentencing disposition.  However, your counsel pointed to the fact that you had already spent eight months in custody and he sought a sentence where the release date was in the foreseeable future. 

35The prosecutor submitted that general and specific deterrence were important sentencing considerations in your case, given the gravity of your offending, in particular on 27 June 2014.  A sentence of imprisonment was submitted to be the only appropriate sentence.  With respect to the principles in Verdins' case, it was accepted that your time in custody would be more challenging than for those who did not suffer from mental illness.  It was also accepted that there was some weight to the submission by your counsel that, due to your psychological condition, you were perhaps not as morally culpable as someone who did not suffer from such a condition.

SENTENCING REMARKS

36In sentencing you I have taken into account the provisions of s.5 of the Sentencing Act and all the matters in mitigation put by your counsel. 

37

You have received a discount for your plea of guilty.  Given that there were

32 witnesses who could have been called, it would have been a lengthy and costly trial.  By your plea of guilty you have saved those witnesses the ordeal of giving evidence and you have saved the state the expense and length of that trial.  I accept that you have also shown remorse for your crime through your plea of guilty.

38I accept your counsel's submission that your offending was an ongoing episode of behaviour, and I have taken the principle of totality into account in sentencing you. 

39In Verdins' case the court identified a variety of ways in which the court have held that impaired mental functioning reduces moral culpability.  This includes that impaired mental function at the time of offending may reduce moral culpability if it had the effect of impairing the offender's ability to exercise appropriate judgment and to make calm and rational choice or to think clearly. 

40I accept Dr Ong's diagnosis that you are a man of limited impulse control, exacerbated by a schizophrenic illness and substance abuse.  In addition, that your illness is characterised by poverty of thought, disorder and, when unwell, auditory hallucinations and paranoid ideation.  Although I am not satisfied that you were suffering from auditory hallucinations at the time of your offending, I am satisfied on the balance of probabilities that your thought disorder contributed to your offending, as it impaired your ability to exercise appropriate judgment and to make calm and rational choices or to think clearly.

41In making this finding I have taken into account the bizarre and random nature of your offending, in particular, in Rathdowne Street on 28 June 2014.  In addition, I have taken into account the witnesses' descriptions of your actions and demeanour on that day.  While their observations are also consistent with polysubstance abuse, I consider that the use of illicit drugs alone does not provide a sufficient explanation for your extraordinary behaviour.

42Accordingly, I have moderated general and specific deterrence.  In doing so, I have also accepted that due to your mental illness your sentence will weigh more heavily on you that it would on a person in normal health.  I have accepted Dr Ong's opinion that given your placement in management units, there is a serious risk of imprisonment having a significant adverse effect on your mental health.

43However, the need for general and specific deterrence is moderated, not eliminated.  Your offending on 28 June 2014 was serious.  Rathdowne Street is a popular and well established area for cafés.  A motor vehicle in the wrong hands is a lethal weapon, and there is no doubt that your driving on the footpath in Rathdowne Street placed members of the public in danger.  Due to your actions on that day two members of the public in fact suffered injury.  Later, when you were trying to escape, a police officer attempting to do his duty was injured.

44Earlier in this sentence I referred to the impact of your actions on these individuals, and it is important that you realise that your reckless conduct caused them not only physical injury, but also psychological distress.  You are extremely lucky, as are the members of the public, that more serious injury was not caused by your actions on that day.

45In all the circumstances of the case a sentence of imprisonment is appropriate, and I accept Dr Ong's opinion that to reduce your risk of offending it will be important to maintain stability of your mental health when you are placed on paroled.  I am sure the Parole Board will take this into account when the time comes to grant you parole.

46Will you please stand up?

47On the first indictment, on the charge of armed robbery, you are sentenced to two years' imprisonment.

48

On the second indictment, on Charge 1 of theft, you are sentenced to

12 months.

49Charge 2, of reckless conduct endangering life, three years and six months.

50Charge 3, of criminal damager, 12 months.

51Charge 4, of reckless causing injury, nine months.

52Charge 5, of reckless causing injury, nine months.

53Charge 6, of intentionally causing injury, 12 months.

54On the summary charges, on the unlicensed driving, one month; on the refuse preliminary breath test, three months; on the possess controlled weapons, two months; on the possess cartridge ammunition without a licence you are convicted and fined $200; on the commit indictable offence while on bail, it is one month.

55So the base sentence is the sentence of three years and six months on Charge 2, reckless conduct endangering life.

56I cumulate six months of the sentence for armed robbery on Charge 2 on the second indictment.  I cumulate one month of the sentence on Counts 4, 5, 1 and 3, and two months of the sentence on Count 6. 

57This results in a head sentence of four years and six months.  The non-parole period is three years. 

58But for your plea of guilty I would have sentenced you to six years and three months, with a non-parole period of four years and two months.

59Pre-sentence detention is 245 days.

60You can sit down now.

61You are disqualified from obtaining a driving licence for a period of two years. 

62I grant forfeiture orders for the cartridge ammunition and box cutter knife.

63I make compensation orders to Pen Underwriting in the sum of $17,489.36 and to BUPA Australia in the sum of $7,700.  Is there anything else?

64MR DANN:  Can I just approach my friend for one moment?  Your Honour, I believe the position in respect of a licence is that it has to be a mandatory period of four years because on the refuse breath test it says subsequent offence.

65HER HONOUR:  Is that correct?

66MR DANN:  That's how I read the provision.

67HER HONOUR:  Thank you for drawing that to my attention.

68MR DANN:  Unfortunately it's correct, I think.

69HER HONOUR:  Yes, the disqualification for the licence is four years.

70COUNSEL:  Thank you, Your Honour.

71MR DANN:  The prior matter 13/10/2010.

72HER HONOUR:  Thank you for bringing that to my attention.  Nothing else?

73COUNSEL:  No, Your Honour.

74HER HONOUR:  Thank you.  Yes, would you remove the prisoner please?

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