Director of Public Prosecutions v Hassan

[2017] VCC 219

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01301

DIRECTOR OF PUBLIC PROSECUTIONS

v

AHMED HASSAN

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2017
DATE OF SENTENCE:	10 March 2017
CASE MAY BE CITED AS:	DPP v Hassan
MEDIUM NEUTRAL CITATION:	[2017] VCC 219

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Baker	Office of Public Prosecutions
For the Accused	Ms M. Casey	Lethbridges Criminal Law

HIS HONOUR: 

1Ahmed Hassan, you have pleaded guilty to one charge of aggravated burglary.  This offence carries a maximum penalty of 25 years' imprisonment.  You have also pleaded guilty to the summary offence of unlawful assault.  Unlawful assault carries a maximum penalty of three months' imprisonment or a fine of 15 penalty units.

2It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, summary of prosecution opening on plea.  That opening was accepted by you through your counsel.

3I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.

4This offence occurred on 13 December 2013 at 2/9 Laburnum Street, Parkdale.  You committed the offence with two male co-offenders, neither of whom has been identified.  The victims of the aggravated burglary were Alan Taka,
Caron-Lee Rice and Robert Neville.  You did not know Taka and Rice, but you did know Neville.  The aggravated burglary occurred at Taka's home in Laburnum Street, Parkdale.  He was at home with his partner, Caren-Lee Rice, and their friend, Robert Neville. 

5Taka and Rice went to bed at 11 pm on 12 December 2013.  Neville was asleep on the couch in the lounge room.  At 3 am on the morning of 13 December 2013 there was a knock on the front door.  Neville heard the door open.  Neville tried to unsuccessfully lock the front door.  You entered the lounge room armed with a small Stanley knife.  The two co-offenders were with you, one of whom was armed with a sledgehammer.  There was a loud banging on the bedroom door before the sledgehammer suddenly came through that door.  Neville let go of the door, climbed out a window and fled.  Taka remained in the bedroom with Rice.  He was concerned for her wellbeing.  Taka left the bedroom and entered the lounge room.  He was struck to the left rib with the sledgehammer by one of the co-offenders.  He recalls being on the ground and receiving two kicks to his back.  These were inflicted by one of the offenders using the Stanley knife blade.  Taka wrestled with you on the floor.  This is the basis of the related summary offence, unlawful assault. 

6This continued for about five minutes while another co-offender attempted to strike Taka with the sledgehammer.  At one point, one of the co-offenders was standing over and assaulting Taka.  Taka was hit to his back and his hands with the sledgehammer.  It is not alleged that you took part in this assault.

7You and the co-offenders then ran out of the unit and down the driveway towards the street.  Taka chased after you.  You entered a nearby parked car.  There was a fourth person sitting in the driver's seat.  The car drove away with all four occupants.  Taka returned home and Rice telephoned the police.

8When the police attended at 3.14 am they observed many large holes in the bedroom door and the interior of the premises was in disarray. 
A sledgehammer and a small Stanley knife blade in a paper handle were on the floor of the premises. 

9In December 2013 you were positively identified in a photo board by Taka.  Police made numerous attempts to locate you but were unsuccessful in doing so. 

10On 8 January 2015 you provided a voluntary DNA sample.  On or about
18 March 2015 your DNA was matched to the Stanley knife blade.  Through your legal representatives you declined an interview.

11There are no victim impact statements, although this was no doubt a terrifying ordeal for the victims.

12I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour, and I do so.  The community has, by your plea, been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  You pleaded guilty on 29 January 2016.  At that time the trial date was vacated.  There had been a hand-up committal brief.  No witnesses were cross-examined.  This was not an early plea of guilty.  I accept on all the material before me that you are genuinely remorseful. 

13I have been told something of your personal circumstances.  You are 27 years of age, having been born on 7 February 1990.  You are unemployed.  You are a single man with no dependents.  You have no fixed place of abode.  You were born in Somalia.  Your family fled Somalia to a refugee camp in Kenya.  Your family emigrated to Australia in the 1990s.  You arrived in Australia with your mother and sisters when you were about eight years of age. 

14You and your family have experienced much trauma and turmoil over many years.  These matters are briefly described in a very helpful chronology prepared by your counsel and in the many reports tendered on your behalf.  Your older brother died in a refugee camp in Kenya and another brother was murdered at a party in Noble Park in June 2001. 

15You have had numerous developmental problems.  The reports from the Alfred Child and Adolescent Mental Health Service prepared in December 2001 provide an insight into your traumatic background, disrupted childhood and developmental difficulties.

16Given your long and detailed criminal history and complex developmental issues there have been many reports prepared dealing with your mental state and other related health issues.  These have been tendered in evidence.  As this material is so voluminous, I do not intend to summarise it all.  Rather, I shall refer briefly to the most recent opinions.  I do state, however, that I have taken into account all of the reports tendered on your behalf.

17Your education was disrupted.  You completed primary school.  In Year 7 at secondary college you were expelled for fighting.  You only attended secondary college for a couple of months the following year before leaving school.  You have had very little employment, and any employment you have had has been sporadic at best.

18You have been a long-term heavy user of illicit drugs.  You have also consumed alcohol from about 13 or 14 years of age and you have been binge drinking.  Your heavy use of illicit drugs began after you left school.

19In Exhibit 2, the defence plea material behind tab A, there is an excellent assessment report prepared by the Court Referral Evaluation Drug Intervention Treatment Service.  This provides a comprehensive history of your long and extensive drug use. 

20A statement of intellectual disability, pursuant to the Disability Act 2006, dated 21 June 2012, was tendered on your behalf.

21There is a Forensicare Mental Health Court Liaison Service confidential psychiatric report dated 18 October 2013 in the material tendered on your behalf.  This is particularly relevant as the report was prepared a short time prior to this offending.  The author of that report saw you in the cells at Dandenong Magistrates' Court.  At that time you had been remanded for breaching an intervention order that was in existence in favour of your father.  You reported that you were using methamphetamines daily, smoking cannabis regularly and using heroin as often as you were able to obtain it.  You were also consuming large amounts of alcohol.  The author was of the opinion that you had predominantly substance use issues with possible underlying depression.  You were neglectful of your own safety and health. 

22As your counsel urged me to consider imposing a community corrections order and justice plan I obtained relevant reports.  At my request a client overview report and justice plan dated 14 November 2016 was prepared and an up-to-date report dated 10 February 2017 was also prepared.  These are Exhibits 11 and 16 respectively.

23In that up-to-date report which was prepared on 10 February 2017 you provided a history that you were using cannabis and cigarettes on a daily basis and alcohol every second day.  You had limited participation in the previous justice plans.  You had engaged minimally in offence specific treatment and attended limited appointments with your case manager.  You had entered substance detoxification on several occasions and attempted drug and alcohol residential rehabilitation on three separate occasions through the Salvation Army, though you failed to complete any due to either noncompliance of rules or voluntarily discharging yourself.

24A pre-sentence report was prepared at my request in respect of a possible CCO.  The report is dated 4 November 2016 (Exhibit 12).  In that report the author stated that you were assessed, "…at a high risk of reoffending."  It was also noted that you had failed to complete all seven community-based dispositions ordered previously.  The author noted that in the circumstances imposing a further CCO may simply be setting you up to fail.  You were deemed not suitable for a community-based disposition.

25In light of these opinions I expressed grave concerns about the appropriateness of a further CCO/justice plan.  The plea hearing was further adjourned at your request to enable an up-to-date neuropsychological assessment to be obtained.  A neuropsychological report was prepared by Martin Jackson dated 18 December 2016 (Exhibit 13). 

26It was submitted on your behalf that the principles enunciated in Verdins' case apply.  In particular, you had impaired mental functioning and this reduced your moral culpability, affected the punishment that was just in all the circumstances, bore on the kind of sentence I ought impose, called for a moderation in general and specific deterrence, and a sentence of imprisonment would weigh more heavily on you than on a person in normal health.

27The prosecution submitted that it was only the final proposition referred to above, limb 5 of Verdins' case, namely a sentence of imprisonment would weigh more heavily on you than it would on a person in normal health, that had application in this case.

28It was submitted on your behalf that you had both an intellectual disability evidenced by the statement of intellectual disability pursuant to the Disability Act 2006 dated 21 June 2012, and you had concurrent mental conditions of depression, post-traumatic stress disorder and acquired brain injury. It was submitted that the depression and post-traumatic stress disorder was a cause or contributed to your longstanding use of illicit drugs and excessive consumption of alcohol and this offending occurred in the context of your longstanding use of illicit substances and alcohol.

29It was submitted on your behalf that you treated your mental health difficulties by self-medicating through the use of drugs and alcohol.  It was submitted that the causal link between your impaired mental functioning and the offending was, therefore, that the murder of your brother led to post-traumatic stress disorder and depression.  These mental health conditions led to, or contributed to, drug and alcohol abuse and this was linked to the offending, thereby reducing your moral culpability.

30I do not accept this submission for these reasons.  I have carefully considered and rigorously evaluated all the evidence to determine if the circumstances set out in Verdins' case are engaged.  The only report addressing Verdins' issues specifically is the recent report of Martin Jackson (Exhibit 13).  It is an excellent report, thorough, detailed and unbiased.  I found it to be of great assistance.  As stated, I have also considered all the other reports tendered on your behalf.

31There is evidence of your mental state on 18 October 2013, shortly prior to this offending, and I have just referred to that material.

32I have summarised the circumstances of this offence on 13 December 2013.  You committed a subsequent offence when heavily intoxicated on 14 December 2013.  The details of that matter are contained in Exhibit 18.

33Martin Jackson has conducted neuropsychological tests and he has expressed a number of opinions.  In particular, he states:

"It is highly unlikely that there is a significant link between Mr Hassan's cognitive difficulties and the offending behaviour.  His language skills, verbal executive skills, delayed recall and recognition memory are intact.  Furthermore, he has basic concept formation, flexibility and abstract reasoning skills and does not have a disorder of impulse control.  Therefore, he does have the ability to assess situations, understand basic concepts and not act impulsively. 

"It is far more likely that Mr Hassan's offending behaviour has occurred in the context of his past trauma, ongoing mental health issues and substance abuse."

34Martin Jackson also dealt with your intellectual disability.  He stated:

"Overall, I am of the opinion that Mr Hassan does not have a severe language disorder and that previous assessments have suggested this had been conducted at a point in time of his life (at age 11) where he did not have a great grasp of English.  His English has clearly developed over the years and is now in fact a major strength for him.

"His cognitive profile is consistent with ongoing effects of mental health issues (such as depression) as well as potentially having an acquired brain injury due to substance abuse from an early age.

"Whilst the effects of ongoing substance abuse cannot be excluded, if his reports of his current use are accurate, they would only be potentially having a mild effect on his presentation."

35In dealing with the future, Martin Jackson stated:

"The only other comment I wish to make is about how people should perceive Mr Hassan in the future.  There has been a huge focus on him having a mild intellectual disability and severe language impairments on the basis of previous (old) assessments. 

"I note that in 2012 he was formally assessed as having a mild intellectual disability on the basis of his full scale IQ score as well as problems with adaptive behaviours. 

"With due respect, as I have outlined above, Mr Hassan does not have severe language impairment (and neither did he at the assessment in 2011 by Dr Burke) and his cognitive profile is not typical of a person with a mild intellectual disability.  His cognitive profile is typical of a person with significant mental health problems, ongoing substance abuse and an acquired brain injury due to substance abuse."

36I accept these opinions. 

37Whilst I accept this offending did occur in the context of past trauma, ongoing mental health issues and substance abuse, I do not accept that there is a realistic connection or requisite causal link between any impaired mental functioning and the offending.

38In Johnson v R [2013] VSCA 362, the appellant had an underlying depressive illness which both preceded and was exacerbated by his use of drugs. The Court of Appeal upheld the sentencing judge's refusal to accept that there was a causal link between his depressive disorder and his drug use. The comments of Redlich AJ are very relevant to this matter.

39Redlich AJ stated:

"For a sentencing judge to be satisfied that an offender was affected by a particular mental condition so as to reduce his moral culpability, there must be a 'realistic connection' between the mental condition and the commission of an offence.  It must have 'caused or contributed' to the offending, or have been 'causally linked' to it.  The argument raised here, that the appellant's moral culpability should be reduced on the basis of an indirect causal link between the offence, his drug addiction and an underlying mental disorder must be rejected. 

"Where offending occurs in circumstances where the offender was affected by drugs or alcohol, his substance abuse is not generally to be regarded as a factor in mitigation.  Circumstances must be quite exceptional before the effect of drugs or alcohol at the time of offending can mitigate the offender's moral culpability.  The underlying reason sometimes advanced is that where a crime was the predictable consequence for a rational choice to take the drug, that choice establishes moral responsibility for the condition at the time of the offence.  Where a person's mental state is affected by voluntary drug taking, it will only constitute a mitigating factor in the rare circumstance where it is established that the offender did not have any foreknowledge of the mental state that would be induced by the taking of drugs.

"Where an offender suffers from a mental disorder, the disorder is not to be treated as a mitigating factor because it explains the offender's recourse to drugs."

40These comments were adopted and applied in Wright v The Queen [2015] VSCA 333.

41I agree with the prosecution's submission that the only principal from Verdins' case that has application in this matter is limb 5.  That is, your mental health condition could mean that a sentence of imprisonment would weight more heavily on you than it would on a person in normal health. 

42I have, however, in a general sense, taken into account all the matters related to your personal circumstances, mental health issues and substance and alcohol abuse. 

43There has been considerable delay.  The offending was on 13 December 2013.  You were charged on 23 April 2015.  There was a DNA match on 18 March 2015.  I accept the delay was not attributable to you.  The delay in this matter, however, assumes less significance because there has been much further offending.  You have committed the subsequent offences of burglary, theft, recklessly causing injury, false imprisonment, criminal damage and breach of an intervention order.  You have also continued to engage in use of illicit drugs and you have had many failed attempts at rehabilitation. 

44The charges have only been hanging over your head since 23 April 2015.  As I stated, the guilty plea was entered on 29 January 2016.

45In terms of your rehabilitation there has been non-compliance with numerous court orders in the past.  There have been many failed attempts at detoxification programs.  There were numerous adjournments throughout 2016 at your request however you have continued to use illicit drugs and you have failed to complete any of the programs that you commenced in 2016.  You have no stable accommodation and no employment.  I assess your prospects of rehabilitation as cloudy. 

46You are now 27 years of age.  I do not accept that the principles applicable to the sentencing of youthful offenders apply to you.  The offence of aggravated burglary is a serious offence and you have a long criminal history. 

47Against these matters in mitigation your actions were very serious indeed.  This was a confrontational aggravated burglary, it was a home invasion in a residential street, it was committed in the early hours of the morning.  The three residents were asleep.  There are certain features of the offending which are relevant in assessing its gravity.  The offence was committed in company.  More than one offender was armed.  You were armed on entry.  Force was used at various times.  The intent at the point of entry was to assault an occupant to address a perceived grievance.  There were three victims.

48As stated, the offence was committed at about 3 am, in the early hours of the morning.  There was an element of persistence in gaining entry to the front and bedroom doors.  Whilst not sophisticated, it could not be said that the offending was spontaneous.  There was an element of planning.  You arrived in company.  A driver waited for you and the co-offenders outside the residence.

49As I have already stated, whilst there are no victim impact statements, this was no doubt a terrifying experience for the victims.  I find that this was a serious example of the offence of aggravated burglary.  In this situation, there is a strong need for general deterrence, just punishment and denunciation. 

50You have admitted before me numerous prior convictions.  There are approximately 11 court appearances between 12 October 2006 and 19 October 2012 involving convictions for street offences, burglary, criminal damage, breach of court orders, assaults, motor vehicle and drug offences, and breaches of intervention orders.  The nature of some of these prior convictions, particularly offences of violence and burglary, is highly relevant to my task of sentencing you today.

51There is no pre-sentence detention.  The total period served in custody since this offending is 424 days.  Two hundred and three of the days in custody has not been declared against any sentence.  I have had regard to these matters.  I have also had regard to the principle of totality.

52As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence.  Specific deterrence is relevant in view of your long and extensive criminal history.  General deterrence is also of considerable importance in a case such as this.  This type of offending, particularly the aggravated burglary, must be discouraged.  I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.

53It was submitted on your behalf that I ought impose a community corrections order with a Justice Plan.  In the alternative I ought impose a combined sentence of imprisonment together with a community corrections order.  The prosecution submitted that it was appropriate that you be sentenced to an immediate term of imprisonment with a non-parole period.

54I have concluded, after engaging in the deliberation required by s.5(4C) of the Sentencing Act that the sentencing purposes of just punishment, denunciation and deterrence cannot be sufficiently served by the making of a community corrections order, even with onerous conditions.  I am satisfied that I have no alternative but to impose an immediate custodial sentence.  I am also satisfied that it is not appropriate that you be sentenced to a combined term of imprisonment and a community corrections order.  You have been assessed as being unsuitable for a community corrections order.  You have failed to satisfactorily complete any rehabilitation program since the deferral of sentencing in about April last year.

55I have had regard to the various authorities and comparative cases that have been put before me.

56Having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows:  aggravated burglary, convicted and sentenced to three years' imprisonment; the summary offence of unlawful assault, convicted and sentenced to one month's imprisonment.  As these offences occurred in the one incident of offending I direct that the sentence of one month's imprisonment be served concurrently with the sentence of three years' imprisonment on the aggravated burglary.  The total effective sentence is three years' imprisonment. 

57The non-parole period is the minimum term that justice requires you to serve, having regard to the relevant circumstances that exist.  For that reason it cannot be fixed automatically.  All relevant factors and sentencing principles are to be taken into account.  I have to consider when you should be eligible for mitigation of confinement, and in turn, rehabilitation under conditional supervision.  In all the circumstances, I direct you serve a minimum term of two years before becoming eligible for parole.

58As stated, there is no pre-sentence detention. Pursuant to s.6AAA of the Sentencing Act, I state the sentence and non-parole period I would have imposed but for the plea of guilty is four years with a non-parole period of two years and six months.

59I have made the disposal order that has been sought by the prosecution. 

60Any other matters?

61MR BAKER:  Nothing further, Your Honour.

62MS CASEY:  No, Your Honour. 

63HIS HONOUR:  Thanks, remove the prisoner, thanks.

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