Director of Public Prosecutions v Ibrahim

[2023] VCC 532

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-22-00824

DIRECTOR OF PUBLIC PROSECUTIONS

v

NIAZI IBRAHIM

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2023
DATE OF SENTENCE:	30 March 2023
CASE MAY BE CITED AS:	DPP v Ibrahim
MEDIUM NEUTRAL CITATION:	[2023] VCC 532

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW    

Catchwords:  Charges of armed robbery and use unregistered motor vehicle –   armed robbery of a customer at a petrol station – sentence incorporated appeal against sentence from Magistrates’ Court – appeal against sentence involved charges of robbery, persistent contravention of family violence intervention order, criminal damage, theft – defence of mental impairment open but not relied upon - psychotic, disorganised, persecutory and grandiose state at the time of offending

Legislation Cited:            Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Cases Cited:                    R v Verdins [2007] VSCA 102
Sentence:   24-month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McCowan	Office of Public Prosecutions
For the Accused	Mr T. Battersby	James Dowsley & Associates

HIS HONOUR:

Introduction

1Niazi Ibrahim, you have pleaded guilty to a charge of armed robbery and the related summary offence. I also heard your appeal against sentences imposed in the Magistrates’ Court on 6 October of last year.

2In relation to the charge of the armed robbery and the summary charge, the circumstances are set in the prosecution opening which became Exhibit A.

Circumstances

3On 23 October 2021 at about 8 am, the victim, aged 82, went to buy a newspaper at a petrol station. You arrived at the station in your vehicle. It was unregistered. After the victim left the station, you drove and stopped your vehicle in front of him. You got out, holding a hammer. You said to the victim, “Give me your hat”, which he did. The victim ran away and you followed. You drew up beside him and said: “Give me your dog, let the dog go”. The victim did not let go of his dog. Instead, he ran into a shopping centre. These circumstances constitute the charge of armed robbery and the summary charge of using an unregistered motor vehicle on a highway.

4You drove off. The victim reported the matter to the police. The police investigated. On 27 October 2021, you were arrested and remanded into custody.

Appeal

5On 6 October 2022, in the Magistrates’ Court, you were convicted of charges of robbery, persistent contravention of a family violence intervention order, criminal damage and theft. You were sentenced to a total effective sentence of 180 days’ imprisonment.

6The circumstances of these charges are set out in the statements of three police officers.

7Despite the existence of a family violence protection order prohibiting any communication between you and your estranged wife, between 26 September and 13 October 2021, you rang her a total of 42 times. On 23 October 2021, you went to her home, contrary to a condition on the order.

8On 20 October 2021, you stole petrol worth $99.51 from a service station.

9On 23 October 2021, you stole a donation tin in a retail shop. It contained about $1,000.

10On 24 October 2021, you pulled over a female driver. You sought to remove her scarf and in doing so, you choked her. You threatened to shoot her unless she converted to Islam. You demanded from her a wooden crucifix, which she handed over.

11On 25 October 2021, you smashed the front windscreen of another vehicle parked in a railway station car park. You used an instrument to do so. 

Psychiatrist

12Nina Zimmerman is a forensic psychiatrist. At the request of your solicitors, on
26 October 2022, she interviewed you and reported. Your solicitor asked her to consider the defence of mental impairment under s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

13Ultimately, Dr Zimmerman considered the defence was open to you to pursue.
Paragraph 113 of her report, she said:

“Given his psychotic, disorganised, persecutory and grandiose state at the time of offending, I believe that Mr Ibrahim would be likely to have been unable to reason with a moderate degree of sense and composure as to the wrongfulness of the behaviour constituting the offending”.

14Despite her support of the defence of mental impairment, you are not pursuing the defence. However, you rely upon Dr Zimmerman’s findings in mitigation of the penalties.

15Applying Verdins, those matters eliminate general deterrence, denunciation and specific deterrence as sentencing purposes here. Protection of the community from you remains important, as does your rehabilitation. It also affects your level of culpability.

16At the time of offending, and I am now speaking of the armed robbery and using an unregistered vehicle, you were delusional. You saw the victim as a magician doing black magic. Taking his hat would stop his black magic. You denied asking for the dog even though you did so. Undoubtedly, the dog played a part in your delusion.

17Your solicitors have asked Dr Zimmerman for a supplementary report which she has provided.[1]  It is a detailed report but ultimately at paragraph 30 in relation to the effect of your delusions she says this:

“I believe that the primary driver of the majority of Mr Ibrahim’s offending was his psychosis. I believe that his homeless and impoverished state contributed to the residual offending. I believe that his substance use aggravated his impaired thinking and disinhibited behaviour over the offending period.”

[1] Report dated 26 March 2023.    

18Then she goes on to discuss the matters that Mr Battersby rose a few moments ago.

Community Correction Order

19Turning at this moment to the appeal, on 22 March 2023, you were interviewed for a Community Correction Order. The assessor considered you suitable for such an order and recommended four conditions. She did so notwithstanding you are a high risk of general re-offending. On the same day, you were assessed by a registered nurse, who recommended a mental health condition to any Community Correction Order.

Pre-sentence Detention

20Excluding today, you have been in custody for 519 days. In sentencing you, I have taken into account the fact you have spent those days in custody.

Conclusion

21I will set aside the Magistrate’s sentence.

22On the charge of armed robbery and on the charges the subject of the appeal, and I point out that I will set aside the Magistrate's sentence, I would firstly note that it is a pity the report of Dr Zimmerman was not obtained after you were sentenced in the Magistrates' Court.  The report presents you in a different light.

23Nevertheless, in respect to the armed robbery charge and those charges the subject of the Appeal, subject to your consent, I will make a Community Correction Order of 24 months’ duration with these conditions:

(a)   you are to undergo assessment and treatment for drug abuse or dependency;

(b)   undergo any mental health assessment and treatment;

(c)   to undergo any program which addresses factors related to your offending; and

(d)   to be supervised, monitored and managed as directed by the Secretary to the Department of Justice and Community Safety.  

24On the charge of using an unregistered motor vehicle, you are convicted and discharged.

25It is a pity the first report of Dr Zimmerman was not obtained until after you were sentenced in the Magistrates’ Court. The report presents you in a different light.

Restitution

26I order you to pay Hollard Insurance Company Pty Ltd compensation of $973.47.

S 6AAA

27In relation to the charge of armed robbery and the related summary charge and the charges, the subject of the appeal, if you had pleaded not guilty, I do consider there would be any practical difference in the penalties have imposed. Pleas of not guilty would have likely resulted in an acquittal followed by some form of supervision order. My sentences involve a release from custody followed by a community correction order.   

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