Director of Public Prosecutions v Ibrahim

[2015] VCC 1918

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-00776

DIRECTOR OF PUBLIC PROSECUTIONS

v

FARAH IBRAHIM

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2015
DATE OF SENTENCE:	16 December 2015
CASE MAY BE CITED AS:	DPP v Ibrahim
MEDIUM NEUTRAL CITATION:	[2015] VCC 1918

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – aggravated burglary – threat to kill – contravene Family Violence Order – unlawful assault

Legislation Cited:     Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic), Family Violence Protection Act 2008 (Vic), Criminal Procedure Act 2009 (Vic), Disability Act 2006 (Vic)

Cases Cited:R v Ibbs (1987) 163 CLR 447, R vVerdins [2007] VSCA 102, Hogarth v R [2012] VSCA 302, Mwamba & Ors v R [2015] VSCA 338, DPP v O'Neill [2015] VSCA 325, DPP v Tokava [2006] VSCA 156, R v Merrett & Ors [2007] VSCA

Sentence:Convicted and sentenced to 20 months imprisonment and a CCO of 3 years, including Justice Plan

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.S. Livitsanos	Solicitors to the Office of Public Prosecutions
For the Offender	Mr D.A. Dann QC	Valos Black & Associates

HIS HONOUR:

1In this matter, Farah Ibrahim, who is aged 23 and was born on the 6th day of July 1992, pleaded guilty to three charges in Indictment F10071353.  Such a plea was conducted on 11 August 2015 and adjourned as a result of the submission made by Mr Dann to obtain relevant materials, which have now been obtained. I should confirm that the first additional document tendered today as Exhibit E is the pre-sentence report obtained from the Department of Justice and Regulation dated 14 October 2015, together with a Justice Plan for Mr Ibrahim dated 11 November 2015. 

2In regard to that Justice Plan, I thank very much the author, Ms Leniart, for the work involved and the signatories.  Attached to that I note also, which is tendered as Exhibit H, the Client Overview Report, and in particular dealing with the matters that were of some concern to me, and which have been referred by Mr Dann today at p.4 of such report. 

3I note that the representatives from Disability Services will attend to getting me the other certification in regard to the actual formal requirement under s.80(2) of the Sentencing Act, which is normally, in my experience, signed by the Secretary, recently we had one signed by the delegate.  In fact, this was only this week.  That is, the statement from the Secretary of the Department of Human Services, that Mr Ibrahim has an intellectual disability within the meaning of the Disability Act.  As Mr Dann has pointed out, such a statement is contained within the report itself, but I think, as the officers have indicated to the Court, they are prepared to get it, and I would ask if that could be forwarded.

4As I said, Mr Ibrahim pleaded guilty to three charges on Indictment F10071353, the first was make threat to kill, and this is a representative count. It is an offence against s.20 of the Crimes Act.  The period involved in this crime was 1 November 2014 through to 27 December 2014.  The seriousness of such a matter is indicated by the fact that the maximum penalty prescribed for such an offence by the Parliament is one of ten years. 

5The second offence was the breach of the Family Violence Order. Again, this was a representative count. It is a breach of s.123 of the Family Violence Protection Act.  The period involved was the 24th day of December 2014 through to the 27th day of December 2014.  Again, the seriousness of such crime is demonstrated by the fact that the maximum penalty prescribed by Parliament for such breach is one of six years.

6The third and most serious crime, of course, is the aggravated burglary which took place on the 27th day of December 2014. The victims in this instance were at the victim's grandfather's home.  The maximum penalty prescribed by Parliament is indicative of the seriousness of such crime, being 25 years.

7There were two additional summary charges, which the Court has been asked to take into account under s.145 of the Criminal Procedure Act.  The first was Summary Charge 10, which is an unlawful assault of the first victim, and Charge 11, the unlawful assault of the first victim’s grandfather. Each of these offences took place on 27 December 2014. 

8Insofar as Exhibit A was concerned, the facts as represented therein were agreed by Mr Dann to be the facts upon which I was to sentence his client. 

9The background to these offences is a domestic relationship, an early relationship, unfortunately an early marriage and child being born.  The first charge as summarised, the make threat to kill in fact involves four separate incidents.  The first two of those incidents involve threats made over the phone, the third on the internet and the circumstances surrounding the final event; that is, incident 4 on 27 December, occurred during the forced entry into the grandparents' home at Kings Park.

10The language is obviously crude.  It is clear from the statements made by the victim that they were particularly upsetting and concerning.  Indeed the enquiries made by the victim herself as to the prisoner carrying a gun et cetera indicate the degree of such concern.

11As I said, there were four incidents involved in that crime.  The second offence is the contravention of the family violence order.  That again involved two occasions, firstly, 24 December, and secondly on 27 December.

12In regard to the aggravated burglary and the two assaults, as I indicated, Charge 3 and those matters occurred on 27 December 2014.  That, of course, is the most serious crime, and the full details are set out from paragraphs 15 through to paragraph 24.

13As a result of the victim's concern, as set out in paragraph 24, the victim rushed into the backyard and hid herself with her young cousin in the garage.  This is after Mr Ibrahim had forced himself into the house in such a manner as the grandfather was essentially physically forced into the side of the home or the wall, as detailed in paragraph 22.  When the front door was not opened for him, Mr Ibrahim ran into the door several times, using his bodyweight to force the door jams to break.  When the door gave away, the impact forced the grandfather backwards, causing him to knock into a wall approximately two metres from the door.

14The prisoner was subsequently arrested after some attempts to avoid same in January 2015.  Since that time, he has been serving pre-sentence detention, which was agreed today at 343 days.

15The matter was resolved on the first day of the committal of this matter, when the indication was given of an intent to plead guilty to the Indictment to be laid. 

16As indicated by the learned prosecutor, the priors of the prisoner are concerning for a young man.  They involve burglary, theft, robbery, criminal damage, possessing a prohibited weapon and use of amphetamines.  There has been a breach, on two occasions, as set out in the pre-sentence detention of community corrections orders, and concern expressed by the Department as to whether the proposal put by Mr Dann in regard to sentencing, is appropriate.

17The victim impact statements, it seems to me, given the severity of the criminality, are totally appropriate.  As to the first victim impact statement, by the first victim’s young cousin, it does not seem to me there is anything exaggerated about that, considering the circumstances of this case, as to how he felt and the difficulties he has had since that time.

18The statement, Exhibit C, made by the aunt, equally expresses dismay.  The last statement, Exhibit D, equally, it seems to me, considering the seriousness of the matter, expresses appropriate concern for his son and what his son went through as a result of the circumstances on this particular day.

19Insofar as the objective criminality of these offences, without at this stage taking into account personal factors, the Court is required to make an assessment, as set out by the High Court in the case of R v Ibbs (1987) 163 CLR 447. The assessment in regard to the aggravated burglary as to objective criminality on the range of heinousness of such offences, I find is in the order of mid-range to high. In regard to the threat to kill, equally an assessment should be made in the same range.

20I must take into account the personal factors that are relevant in sentencing of Mr Ibrahim, and those are set out appropriately for me, and have been put to me both on the last occasion and today, by Mr Dann. 

21The first matter in the written submission, Exhibit 2, is the chronology, which details the background to how this became a plea. The personal circumstances are particularly detailed from 2 through to p.3, involving his relationship history, his difficulty with intellectual ability and education, his failure to be able to work for any considerable period, and unfortunately a predilection to drugs from an early age.

22In addition, Mr Dann tendered as Exhibit 1 the report of the consultant psychologist, Carla Lechner.  In introduction, Ms Lechner noted the history of offending.  She also looked at the prisoner’s personal history, his presentation at interview, and in particular concentrated on his drug and alcohol history.

23It would appear that Mr Ibrahim, in his late teenage years, used firstly marijuana.  Subsequently, apparently, with his brother, then ice to an extent that it became almost daily, which produced in him feelings of paranoia, hallucinations and anxiety.  He seems to be what might be described as a polysubstance abuser - ecstasy, LSD, cocaine and Xanax.  It would appear alcohol has not been a problem for him.

24The prisoner’s comments to Ms Lechner in regard to his offending are somewhat concerning.  He, while acknowledging his role - and indeed, he has pleaded guilty and has not shirked the responsibility, and has indeed served a considerable period to date.  However there are still comments made, insofar as he relates to the victim, seem to me not fully comprehending the serious nature of his offending.  That may well have to do with the very difficult psycho/psychiatric circumstances that we have in this case.  Based upon the testing by Ms Lechner, the prisoner is seen to be of borderline mildly intellectual disabled range.  He is a person who has already been confirmed as eligible for Client Disability Services.  He is a person who is required to use simple language, has difficulty with comprehending information, difficulty with problem solving in his life.

25On p.6 of the report, the prisoner has been determined to present to Ms Lechner as having a stimulant use disorder.  Fortunately, it is in remission while in gaol, hopefully.  He is described as having a mild intellectual disability which, however, affects his capacity for information processing, reasoning, judgment, problem solving and decision making. Of course, if one needed another factor, his use of drugs, in particular ice, but the polysubstance use complicates his life totally.

26In addition, as detailed in the summary and opinion paragraph 2, not only is the diagnosis of an intellectual disability, the prisoner is unfortunately illiterate.  He really has not had employment and his adult years have been characterised by what would appear to be - not that he has been an adult for too longer - an association with negative peers, and unfortunately, a relationship where children were born much too young, as described by the specialist, of which he was ill-equipped to manage. The totality of which has led to these particular circumstances.

27Insofar as the submission made by Mr Dann, he was particularly keen to stress the discount involved in the plea of guilty, the saving of time and expense of a contested committal trial, the utilitarian benefit to the State, and indeed in particular to the witnesses, the remorse demonstrated by such plea, the fact that he has had a considerable time in gaol to date, and the difficulties therein brought about by his intellectual disability.  Further, he asked the Court to take into account R vVerdins [2007] VSCA 102 ‘Verdins’ considerations and the issue of totality in determining what should be the sentence in this particular case.

28On the last day of the plea what was put to me is that I should consider whether the appropriate sentence should be a period of immediate imprisonment together with a community corrections order. I was asked to adjourn the matter in order to get such an assessment.  As has been described by the learned prosecutor today, the pre-sentence report does contain within it a positive assessment.  There were expressed concerns as to his history, albeit that information and his failure to comply with community based dispositions in the past, he was still found suitable and various conditions were recommended as set out in p.4 of the report.

29The Justice plan, again for which I thank the persons who prepared it, I think adequately details the person we are dealing with in this case.  There is a need for appropriate and skilled case management of Mr Ibrahim.  There is also a need, of course, from him to cooperate in these matters.  Mr Ibrahim, you are getting to a stage that, despite the desires of the Court to assist people who have your difficulties, you keep committing serious offences of this type, and you will not be getting out of prison, do you understand?  You have got to understand that you have got to run your life properly, despite the problems that you have to live with.

30In the Client Overview Report, Exhibit H, there was a specific reference to concerns that had been mentioned by this Court in the request for such report.  On p.4 of such report, the following is stated:  "Under Departmental policy, Disability Client Services can commence working with the prisoner who is seeking disability support up to six months prior to the release date.  This would involve the case manager visiting the prisoner to develop rapport and commence pre-release planning to assist in transitioning the person into the community."

31I note the support of his family and, as Mr Dann has stressed today, the fact that he has got, when he completes his period in gaol, a home to go to and family support, which is so important.  I would not like to suggest there has not been support in the past, but it does become more and more difficult and important in these circumstances.

32The difficulty, of course, with the sentence here is the seriousness of the offences.  The Court of Appeal, in the recent decision of Hogarth v R [2012] VSCA 302 have been at pains to point out the importance of an appropriate sentence being handed down when offences of this type are committed. The description of a confrontation of aggravated burglary and home invasion is apt in this case. As I have said, it is objectively, as I have found, a very serious example of this type of case. Such makes for difficulty for this Court to make a determination.

33In a recent case of the Court of Appeal, which involved both kidnapping and aggravated burglary, Mwamba & Ors v R [2015] VSCA 338, the Court was at pains to remind the community, and in particular the legal community and Judges, that the maximum penalties, for both kidnapping and aggravated burglary, are 25 years. As they said at [157]: "Ordinarily, in the absence of substantial mitigating factors, a conviction for either of these offences attracts a sentence of imprisonment measured in years."

34In that particular case, the submission made that a community corrections order coupled with a term of imprisonment would be appropriate, was seen by the Court as being totally outside the current sentencing range for those offences, as I stress, in the circumstances of that case.

35Equally, insofar as the Verdins submission, the comments of the Court of Appeal in DPP v O'Neill [2015] VSCA 325 are appropriate for consideration by this Court, and in particular those matters stressed by the learned prosecutor this morning at [59], [68] and [75], and generally.

36I do not find that there is an appropriate connection, insofar as his intellectual disability is concerned whereby I could find that Mr Ibrahim did not appreciate what he was doing, which would therefore lead to a reduction in culpability based on those principles.

37At the same time, I accept Mr Dann's submission, that when one is dealing with a person with such disabilities, with the background that one is concerned with, that one also has to take into account generally persons who are in our community, with the intellectual deficit as demonstrated, with the incapacities for coping with crises.  Those matters do go generally to matters of moderation, insofar as sentences of these types of persons are concerned.

38It is, of course, a very difficult balance for a Court.  On the one hand, we have the commission of serious offences.  On the other hand, we have a person who is still relatively young, a person who, despite a number of prior offences, despite breaches of prior correctional orders, still receives a positive report, as demonstrated in this case by Exhibit E, which has been filed today from the Department of Justice and Regulation.

39It is to be remembered that in a number of recent pronouncements by the President of the Court of Appeal, all Courts when sentencing are enjoined to consider, as a very important factor, of importance to the general community that is future rehabilitation.  Such consideration has prominence when you are dealing with a person who is not only of a relatively young age but a person who has intellectual problems, and in circumstances where hopefully one can set in train particular arrangements through both Department of Justice and Regulation and Disability Services, to order to set Mr Ibrahim on the right path.  As I say, the balance in a case such as this is exquisite. As to such issue in DPP v Tokava [2006] VSCA 156 [21] the President said:

A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community’s interest will be best served by that course.

40As the President also said in R v Merrett & Ors [2007] VSCA 1 [49]:

The sentencing Court looks to the future as well as to the past. There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this Court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support trial Judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution, which characterises much of the public comment on sentencing is understandable but it focuses on only one part of what the sentencing Court does.

41Having considered all of those matters, I conclude that it is an appropriate submission, despite the submission this morning of the prosecutor that a determination be passed in terms of s.44, which now allows the Court to impose a period of imprisonment and a community corrections order.  As I say, it's an exquisite and fine balance in this case, given the seriousness of these crimes.  However, as I have just said to Mr Ibrahim, there will not be any further chances.  You commit offences of this type again and you will be getting a very large sentence; do you understand that?

42OFFENDER:  Yes.

43HIS HONOUR:  If you would stand, please. 

44On the first charge, of make threat to kill, the representative offence, you will be sentenced to a period of imprisonment of nine months.

45On the second charge, of contravention of Family Violence Order, a sentence of imprisonment of six months.

46On the third charge of aggravated burglary, a sentence of imprisonment of 18 months.

47The total effective sentence therefore for the indictable offences will be 18 months imprisonment. 

48On the two summary matters, Charges 10 and 11, I sentence you to a period of imprisonment of six months on each charge. 

49I would order that, in regard to the 18 months imposed in regard to the Indictment, a further two months from the sentence imposed on the assault matter, Charge 10, be added, making a total effective sentence of imprisonment imposed on you of 20 months.

50In addition, what I intend to do, pursuant to s.44, is to make a community corrections order in addition to imposing the sentence of imprisonment of
20 months.  Pursuant to sub-s.3, the community corrections order will commence on the release of the offender from prison.

51I do not intend to set a period of parole.  I find in the circumstances, a period of imprisonment of 20 months without parole, and a community corrections order for three years, including the Justice Plan and the other conditions recommended, is the appropriate punishment to impose, by way of the effecting of the balance that is involved.

52Insofar as s.18 of the Sentencing Act is concerned, I order that the 343 days served to date be declared as part service of the sentence of 20 months. 

53Essentially, that means that you have approximately eight months' gaol to serve in addition, and thereafter, on being released, you will be required to serve a community corrections order for a period of three years.  The particular conditions that have been sought to be applied by the authorities in that regard, is the Justice Plan, which will be imposed for the maximum period, which is two years from the beginning of such a period, unpaid community work which I will set at 300 hours, which is approximately over that period 100 hours of each year, treatment and rehabilitation pursuant to s.48D, and supervision by the Secretary under s.48E.  I do not intend to be involved in judicial monitoring in this matter.  It seems to me that appropriate supervision can take place.

54But I tell you again, Mr Ibrahim, not only do you have to serve the balance of your period in gaol, but you have to do and attend to the requirements of your community corrections order.  You have had two community corrections orders as you have progressed along the trail, and you have got into trouble in the sense that you have breached both.  Those days are over.  You cannot breach this order.  One aspect of this sentence is to get you back, rehabilitated, and make sure you do not commit further serious crime, all right?  You have got to take the assistances offered to you from Disability Services.  We all want to make sure that you are not again before this Court.  You are here, hopefully, to lead a peaceful and law-abiding life, and we want to see if we can assist you in doing that.

55Are there any other matters I need to attend to?

56MR LIVITSANOS:  Just the 6AAA declaration, Your Honour.

57HIS HONOUR: Yes. It is a very difficult position in these instances, where you prescribe a sentence without parole and a community corrections order, to determine pursuant to s. 6.AAA of the Sentencing Act what would have been the sentence involved.  Doing as best I can, can I indicate that had Mr Ibrahim not pleaded guilty, I would have imposed a sentence - sorry, I will put it this way.

58Had he not pleaded guilty and had I not had the ability to impose an order pursuant to s.44, I would have imposed a total sentence for all matters of five years with a minimum of three. I do the best I can with s.6AAA of the Sentencing Act, which is actually impossible to comply with in any reality.

59Any other matters?

60MR LIVITSANOS:  There is not, thank you.

61MR DANN:  Your Honour, is he required to sign the order?

62HIS HONOUR:  Yes, we will prepare that now.  Perhaps you should really check that he is prepared to sign it first, Mr Dann.  I will allow you to do that.  You might explain, perhaps more forcefully than I tried to do, what will be the consequences this time if there is a third breach.

63MR DANN:  Yes, Your Honour. 

64HIS HONOUR:  My intent is to make it apply to all offences.  I think I can do that under s.40(2).  Community corrections order may cover multiple offences or if two or more offences are found in the same facts or form a part of a series of offences, a Court may make one community corrections order in respect of those offences in place of separate orders.  So make such order pursuant to s.41.

65Yes, Mr Dann, how did we go?

66MR DANN:  I was just going to take ‑ ‑ ‑

67HIS HONOUR:  Waiting for the document? 

68MR DANN:  Yes so it could be explained with the document.

69HIS HONOUR:  As you know, we are besieged in the Justice Department, or certainly in Courts, by a very slow and ordinary I.T. system.

70MR DANN:  That is no problem, Your Honour.

71HIS HONOUR:  I note, if I did not, that the parents are here and I appreciate the support for your son.  Unfortunately, he has committed some serious offences.  Once he gets out, he must make sure there are no more.

72I just forgot the authority.  When I finally settle this sentence, I will add those authorities in about the sentencing of young people and trying to avoid gaol and rehabilitation, especially of the President.

73MR DANN:  Yes, Your Honour. 

74HIS HONOUR:  Mr Dann, take your time.  I formally thank Disability Services; always great help to have reports like that.  Let us hope we get some success. 

75MR DANN:  Thank you, Your Honour.  He does consent to the order and has signed the document.

76HIS HONOUR:  Yes.  I think I am roughly right, am I not?  Another eight months, is that about right?

77MR DANN:  Maybe nine.

78HIS HONOUR:  He has just about done a year, has he not?

79MR DANN:  Yes, 11 months.

80HIS HONOUR:  Yes.

81MR DANN:  Just over 11 months.

82HIS HONOUR:  Mr Dann, you might also have the family stress the importance of this one going as best as it can to their son.

83MR DANN:  Yes, Your Honour. 

84HIS HONOUR:  I would not like to have to come back and do another breach.  Yes, take the prisoner away, thank you.

85Yes, thank you both for your assistance, and your instructor, of course.

86MR LIVITSANOS:  Thank you, Your Honour. 

87MR DANN:  Thank you, Your Honour. 

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