Director of Public Prosecutions v Hassan (a pseudonym)

[2022] VCC 239

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABIY HASSAN (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2022
DATE OF SENTENCE:	7 March 2022
CASE MAY BE CITED AS:	DPP v Hassan (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 239

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – robbery – trespass – plea of guilty – rehabilitation

Legislation Cited:                  Disability Act 2006 (Vic); Sentencing Act 1991 (Vic)
Sentence:  Drug and Alcohol Treatment Order for 26 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Brennan	Office of Public Prosecutions
For the Accused	Mr N. Brown	Nelson Brown Legal

HIS HONOUR:

1Abiy Hassan[1], you have pleaded guilty to one charge of robbery (Charge 1), for which the maximum penalty is a term of imprisonment of 15 years, and to a related summary charge of trespass (Summary Charge 1), for which the maximum penalty is a term of imprisonment of six months.  Tendered on the Plea as Exhibit 1 was a Summary of Prosecution Opening, in which the agreed facts of your offending were set out.  In brief, the circumstances of your offending were as follows.

[1] A pseudonym.

Circumstances of Offending

2On 30 October 2020 at 12:55 am, you drove to an apartment building located at 568 Collins Street, Melbourne, with two unknown co-offenders.  You parked in front of the building and met with an unknown man at the building entrance.  Your victim, Rebecca Milsom[2], resided at Apartment 4607 of the building.  At the time, Ms Milsom was expecting a person to attend the apartment, to drop-off some cash for her partner Jonathan Russo[3], whose nickname was Jono[4]. 

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

3Ms Milsom received a call on the apartment intercom from someone who identified himself as “Jono’s friend”.  Ms Milsom buzzed the male up to her apartment, assuming the person was there to drop-off money as Mr Russo had foreshadowed. 

4You and your three co-offenders took the lift to the 46th floor.  CCTV footage captures all four of you getting out of the lift together on Level 46 at 12:59 am.  The male whom you had met at the entrance got back into the lift and returned to the ground level.  You and two co-offenders knocked on the door of the apartment.  One of you said “It's Jono’s friend”, so Ms Milsom opened the door.

5Ms Milsom let the first offender in and the two others, including you, forced your way in behind him.  After a short while, questions were asked “Where's Jono?”, “Where's the money?”.  You and your two co-accused then searched the apartment, looking for and taking any items of value that you could find.  In total, $380 in cash, prescription medication, a small amount of cannabis and three bottles of perfume worth about $210 was stolen. 

6At 1:06 am, Ms Milsom called Triple 0.  Police attended at her apartment at 1:24 am and took a statement from her.  On 2 November 2020, you were identified from images taken from CCTV footage of the incident. On
12 November 2020, you were apprehended while driving the same vehicle used during the offending and you were arrested and conveyed to Werribee Police Station. You have remained in custody since that date. 

7On 18 May 2021, the matter was committed to this Court after a contested committal hearing where witnesses were cross-examined.  On 4 November 2021, the matter resolved at the case conference to the single charge on the indictment.  You also indicated an early plea of guilty.  On 7 December 2021, the matter was adjourned into the Drug and Alcohol Treatment Court for a Determination Hearing, which was heard on 24 February 2022.

8Tendered on the Determination Hearing as Exhibit 2 was a Case Management Assessment Report authored by Chloe Reese, dated 2 February 2022.  Exhibit 3 was a Clinical Advisor Report authored by Mr Adrian Papworth, dated 8 February 2022.  Also tendered was a report by Gina Cidoni, Psychologist (Exhibit 5JA),  a letter from Emma Woods of the Burnette Institute (Exhibit 6JA), emails from Department of Health and Human Services as to whether you fell under the Disability Act 2006 (Exhibit 8JA) and other material, including your Justice Health records and a reference from the president of your local sports federation (Exhibit 7JA).

9Taken together, these reports outlined your personal history, your upbringing, your family dynamic, your past mental health diagnosis, your substance use and your forensic history. 

Personal Circumstances

10You were born in Ethiopia in September 1986.  You are now aged 35 and were aged 34 at the time of this offending.  Along with your older sister, mother and grandmother, you fled the violence of the civil war in your home country and spent time in a refugee camp in Kenya.  You describe the conditions in the camp as very bad, but not as bad as the violence and death that you had seen in Ethiopia.

11In 1986, your family was granted residence in Australia and you settled in Kensington.  You attended the local primary school for Grades 5 and 6 and this was the first education that you had ever received.  You were diagnosed with a learning disorder and were also subject to the casual racist taunts of your peers.  You found it difficult to fit in and you often removed yourself from the school, perhaps unsurprisingly.

12You report that you can neither read nor write.  You have been assessed as having an Intelligence Quotient in the borderline range and, while you have been in receipt of a disability support pension, you have not, it seems, been formally diagnosed with an intellectual disability.  Your sister, I am told, always looked out for you, looked after you and sought to protect you when you were taunted for your ethnic identity or for being “slow”.

13You left school in Year 9 and you began a mechanics apprenticeship, which you did not finish. You have worked off and on in unskilled manual work between ever longer periods of custody. 

14Your father did not come with you and remained in Ethiopia.  You have had no contact with him since that time.  You have clearly lacked a significant male role model.  Your grandmother only recently passed away.  Your mother has various infirmities and, perhaps most significantly, your sister has long struggled with severe mental ill health and, over recent times, she has had frequent admissions into psychiatric wards.

15You are married and you have two daughters, now aged four and three.  You have been separated from them during your time in custody.  Together, these loses and separations have had a significant impact on you.  Ms Cidoni identifies your low level of cognitive functioning, symptoms of persistent depressive disorder and anxiety and suggests a diagnoses of Post-Traumatic Stress Disorder.  In the past, you have been somewhat reluctant to engage in meaningful treatment for your mental health, due to the stigma it attracts in your community of origin.

16It seems that you first used cannabis at the age of 15.  During your 20s, you tried a variety of drugs of dependence and around five years ago you first tried methamphetamine and you quickly became a daily user.  In 2017, you were diagnosed with drug-induced schizophrenia and you are now prescribed the antidepressant Avanza.  Mr Papworth is clear as to a diagnosis of stimulant use disorder, with methamphetamine being your primary drug of concern.

Forensic History

17Your first court appearance was in the Children's Court in 2001 for shoplifting.  Over the following 20 years, you were sentenced to supervision orders, community-based orders (all of which you have breached), youth detention and imprisonment, including activated suspended terms.  Your offending has included, but is not limited to, interpersonal violence, damage to property, burglaries, thefts, threats to kill, possession and trafficking of drugs of dependence.

18In 2010, for offences of aggravated burglary, armed robbery, blackmail, intentionally cause serious injury and false imprisonment, you were sentenced to a Total Effective Sentence of seven years and nine months’ imprisonment and I note you were not granted parole.  That sentence was confirmed on appeal.  In 2018, you were sentenced to 15 months’ imprisonment for trafficking drugs of dependence.  In 2021, you received a further term of eight months’ imprisonment for drug, vehicle and bail offences.

19Whilst you do not fall to be sentenced for matters already dealt with by the courts, your prior criminal history is of concern and impacts my assessment of the need for specific deterrence, community protection, your moral culpability, your prospects for rehabilitation and, more broadly, upon the appropriateness of a Drug and Alcohol Treatment Order (DATO) in your case. 

20Ms Reese identified that you require a high level of forensic intervention, given your institutionalised behaviour pattern, family and marital relationships, and your illicit substance use.  She noted that you have yet to be afforded the opportunity to engage in an intensive therapeutic program, such as a DATO, which would provide both forensic intervention, in combination with intensive therapeutic treatment, to support positive behavioural change.

21Mr Papworth was satisfied that the treatment and supervision component of a DATO would be an appropriate intervention to address your substance use disorder and that there were no significant concerns regarding your capacity to participate in such an Order.  He further indicated that a neurological psychological report may be appropriate to explore tailored treatment referrals and supports. 

22Mr Hassan, robbery is a serious offence, as is clear from the maximum penalty of 15 years that Parliament has imposed. You and your associates were let into the apartment by your victim due to your acquaintance with her partner.  However, once there, you made demands for money and proceeded to search the apartment for items of value.  Those actions place your victim in fear for her personal safety and enabled you to steal the cash and other items.  It must have been a frightening experience.  I am satisfied that your motive was to get cash for drugs.  Your actions showed a complete disregard for the wellbeing and feelings of your victim.  It represented a violation of your victim's personal space, committed in her home, where she had every right to feel safe.

Purposes of a Drug and Alcohol Treatment Order

23Now the particular purposes of a DATO, are:

(a)   Firstly, to facilitate the rehabilitation of the participant offender, by providing a judicially supervised, therapeutically oriented, integrated, drug and alcohol treatment and supervision regime;

(b)   Secondly, to take account of the offender participant's drug or alcohol dependency; 

(c)   Thirdly, to reduce the level of criminal activity associated with drug and alcohol dependency; and

(d)   Finally, to reduce the participant's health risks associated with drug or alcohol dependency;

Submissions of Counsel

24Mr Brown, on your behalf, submitted that you should be placed upon a DATO.  Such a disposition was appropriate in all the circumstances of your case.  Ms Overend, on behalf of the Director, in her fair and helpful submissions (Exhibit 10) did not seek to persuade me otherwise. 

Sentencing Purposes

25Mr Hassan, in sentencing you I must have regard to a range of different factors.  I must give effect to the principle of general deterrence, that is to deter others from behaving as you did, and to specific deterrence, that is the need to deter you from ever repeating such offending.  I must consider the need to protect the community.  I must express the community's denunciation of your conduct.  I must take into account the effect of your crimes upon the community and I must have regard to current sentencing practices and the statutory maximum penalties for the offences to which you have pleaded guilty.

26I must also ensure, as far as possible, that you are rehabilitated and reintegrated into society. In short Mr Hassan, I must try and balance your personal circumstances with the circumstances of your offending and I must pass no greater sentence than is necessary in all the circumstances of the case as I find them to be. Now these sentencing purposes, as identified in s 51 of the Sentencing Act 1991, are all still to be considered in your case.

27However, if the Court is considering making a DATO then your rehabilitation and the protection of the community achieved through your rehabilitation have greater importance than those other sentencing purposes. 

Findings

28In all the material in front of me, I am satisfied on the balance of probabilities that you are a dependent upon methamphetamine, that your dependency contributed to the commission of the offending in front of me and that otherwise, it would be appropriate to impose an immediate sentence of imprisonment of no more than four years and that you are not charged with offending, nor are you subject to any order that would make you ineligible for a drug and alcohol treatment order.

Reasons

29It is clear on the material in front of me that you have struggled all your life to come to terms with the experiences of your childhood in your war ravaged homeland. 

30You have a most concerning criminal record, Mr Hassan.  Terms of imprisonment, indeed lengthy terms of imprisonment, are not acting as a deterrent, nor are they providing long-term protection for the community.  You are at risk of becoming institutionalised should you not be able to turn your life around.

31You want to establish a connection with your family.  You want to live a different life.  I note that you reached out to Ms Woods (Exhibit 6JA) shortly before this offending, asking for her help.  I also note the contribution you have made to your local community (see Exhibit 7JA) when you are not enthralled to methamphetamine.  You are not without your challenges. However, I am prepared to provide you with an opportunity to take back your life.

32In so finding, I have regard to your plea of guilty and to all the mitigation of sentence such a plea brings with it, not only in terms of its utilitarian value, but also its particular value in a time of COVID-19.  I have regard to the time that you have spent on remand with all the attendant restrictions, anxieties and uncertainties during the time of the pandemic.  I have regard to your mental health challenges and your assessed borderline cognitive function.  I have particular regard to your deprived upbringing, occasioned by the civil war in your homeland, and which, in my view, moderates your moral culpability for this offending.

33You have seen things as a child that most Australians, children or adult, would struggle to comprehend or understand.  It clearly has had a lasting impact upon your emotional and intellectual development and haunts you to this day. 

34Having regard to all the matters above, I am satisfied that in all the circumstances of your case it is appropriate to place you upon a DATO. 

Sentence

35On Summary Charge 4, you are sentenced to a term of imprisonment of 30 days. I declare that you have already served the sentence of 30 days that I have passed upon you. 

36On Charge 1  and Summary Charge 1 you are convicted and placed upon a Drug and Alcohol Treatment Order. 

Drug and Alcohol Treatment Order

37Now, a Drug and Alcohol Treatment Order has two parts. 

38Part A: the first part is a treatment and supervision part,  and that part itself has two parts: 

39Core conditions, which are that:

(a)   you must not commit any offence punishable on conviction by imprisonment during the time the Order is in force;

(b)   you must attend Drug Court when required to do so; 

(c)   you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed; 

(d)   you are to report to and accept visits from members of the Drug Court;

(e)   you are to undergo treatment for dependency as specified in the Order;

(f)    you are to give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;

(g)   you are not to leave Victoria without the permission of the Drug Court, essentially that means my permission or another Judge; and

(h)   you are to obey all lawful instructions from the Drug Court team. 

40The second part of the treatment and supervision part are what we call program conditions and the program conditions are as follows: 

(a)   you have got to submit for drug and alcohol testing, as directed; 

(b)   you are to submit to detox and other treatments specified in the Order, as directed;

(c)   you are to attend vocational, educational and employment programs, as directed;

(d)   you are to submit to medical, psychiatric and psychological treatment, as directed;

(e)   you are to reside at [address omitted] Kensington, for the duration of the Order or until further Order; 

(f)    you are subject to a curfew, that means you have got to remain at [address omitted] Kensington between the hours of 9:00 pm and 6:00 am, which is required until further order;

(g)   you are not to use a drug of dependence without lawful authorisation;

(h)   you are to abstain from alcohol;  and

(i)    you are to do or not do anything else that the Drug Courts consider necessary or appropriate concerning your drug and alcohol dependency and the personal factors that the Drug Court considers contributed to your criminal behaviour. 

41These program conditions will operate for two years, or for further order.  The core conditions are going to operate for 26 months, or until further order. 

42Part B: the second part of the Drug and Alcohol Treatment Order is a custodial part, and the custodial part is the term of imprisonment that I would have imposed if I had not sentenced you to a Drug and Alcohol Treatment Order. That is a term of imprisonment of 26 months and that is not to be served unless ordered.

43I have got to ask you whether you consent to being placed on the order Mr Hassan?

44OFFENDER: Yes sir, I consent and I would like to say thank you for the opportunity.

45HIS HONOUR: Well that is very courteous of you, that is very polite of you Mr Hassan.  The best thanks that you can give your mum, the best thanks that you can give the community and the best thanks that you can give the Court is to make a success of the order.  I do not place you on the order to fail; nobody wants you to fail Mr Hassan.  Your mum over there, she needs you, particularly with her losses and the illness of your sister. 

46Now you also waive all rights of confidentiality of communications between the Drug Court and everyone who works at the Drug Court and on the other part, all treatment providers and all government agencies.  Do you understand that?

47OFFENDER:  Yes.

48HIS HONOUR:  I wish you luck Mr Hassan, I will see you on Wednesday.  Thank you Mr Brown for all your assistance in this matter, I will stand down.