Director of Public Prosecutions v Ibrahim

[2020] VCC 1651

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00776
CR-20-00279

DIRECTOR OF PUBLIC PROSECUTIONS

v

FARAH IBRAHIM

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2020, 16 September 2020
DATE OF SENTENCE:	14 October 2020
CASE MAY BE CITED AS:	DPP v Ibrahim
MEDIUM NEUTRAL CITATION:	[2020] VCC 1651

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Contravention community correction order – Possessing a firearm in contravention of a firearm prohibition order – Possess firearm with no serial number - Tikka T3 bolt action rifle – Intellectual disability – Stimulant use disorder – COVID-19 – Imprisonment – Dead time- Expired community correction order

Legislation Cited: s.112B, s. 124(1), s. 134C(1) Firearms Act 1996

Cases Cited:R v Berichon [2013] 40 VR 490 - Bosa v The Queen [2018] VSCA 97 - Berichon v R [2013] VSCA 319 - R v Hudson [2010] 30 VR 610 - R v Renzella [1999] VSCA 85 - Bourke [2020] VSCA 130 – Hutchison v The Queen [2015] VSCA 115

Sentence:CR-20-00279 – Total effective sentence is 2 years and 7 months with a minimum of 22 months imprisonment before being eligible for parole. Pre-sentence detention declared as 435 days. S.6AAA three and a half years with a minimum of 32 months imprisonment before being eligible for parole.

CR-15-00776 – Contravention proven; Original order confirmed. Convicted and sentenced to 1 month imprisonment on the contravene community correction order charge.
130 days ‘dead time’ taken into account on both the indictment and contravention proceedings.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie	Office of Public Prosecutions
For the Accused	Ms F. Fox	Sarah Tricarico Lawyers Pty Ltd

HIS HONOUR:

1In this matter of the Director and Mr Farah Ibrahim the Court heard on
16 September 2020 a plea to two charges in indictment number K12057723 and a summary charge, to which on behalf of Mr Ibrahim, Ms Fox pleaded guilty.  Ms Fox appeared on behalf of Mr Ibrahim and Mr Pirrie appeared on behalf of the Director.

2Mr Ibrahim is now 28, and was 26 at the time of this offending having been born on 7 July 1992.  He is unemployed.  He is in fact a welfare recipient and in particular receives the disability benefit.

3In the indictment the first charge was laid pursuant to s.112B of the Firearms Act 1996.  It related to the finding in Mr Ibrahim’s possession on 6 August 2019 of a firearm described as a Tikka T3 bolt action rifle.  As has been accepted and clarified today that means it is not an automatic and discharges by way of individual bolt action.

4A photograph insofar as that assembled rifle is set out at p.3 of the prosecution opening and was tendered as Exhibit B.  It was described in the plea by the prosecutor as an assault rifle.  However, upon getting further instructions it is more correctly described as a utility rifle, which can be used for any number of purposes, in particular shooting or hunting. There was no discrimination made by the prosecution as to the analysis of long arms as set out in s.6A for the benefit of the Court. 

5Insofar as Mr Ibrahim being a prohibited person such came about from the service on him in gaol on 19 September 2018 of the prohibition order which was tendered, Exhibit C.

6The seriousness of this charge is inherently demonstrated by the sentence set by Parliament, which is one of a maximum of ten years' imprisonment.

7Charge 2 in the indictment is an offence under s.134C(1), being in possession of a firearm with no serial number attached. The firearm is exactly the same firearm that relates to Charge 1. The maximum penalty imposed by Parliament for such offence is four years imprisonment.

8The summary charge is Charge 3, of the summary matters forwarded to the Court pursuant to s.145 of the Criminal Procedure Act, pursuant to s.124(1) of the Firearms Act being possess cartridge ammunition without a licence for which the maximum penalty is 40 penalty units.  As a result of the plea of guilty to that charge the prosecution withdrew summary charges four and twelve.

Circumstances of the Offending

9As to the circumstances of the offending Ms Fox accepted the summary detailed in Exhibit A as the facts upon which I am to sentence her client. 
Ms Fox submitted on the principles in R v Berichon [2013] 40 VR 490, [44], that the offending should be assessed at the lower order.

10The prosecutor submitted that it should be seen at a higher order, due particularly to firstly the prevalence of these crimes, secondly, that the gun albeit in a guitar box was easily assembled,  thirdly, the fact of his priors,  fourthly, the prosecution's submission that I should conclude that he was in possession of such gun for an unlawful purpose, albeit not specific given his history and referred to Bosa v The Queen [2018] VSCA 97, [24], as to accountability in a public place.

11The final matter was essentially that insofar as the prosecution put that the rifle was capable of being assembled in public, that is in the car as defined under the Firearms Act, this led me to make the enquiry this morning as to whether the rifle was loaded or not.

12I accept that it was agreed between the parties, as indicated by Ms Fox, that this rifle was not loaded.  Technically that is correct.  The loaded magazine of ten bullets was not placed in the rifle at the time it was found.  However, the prosecutor makes the point that the rifle could be easily assembled.

13So I conclude that this rifle was found by the police in an unassembled state.  However, it was in such a state that the magazine was loaded, and the rifle needed only to be assembled to be used. I make the point that when apprehended Mr Ibrahim was in Ballarat Road, Sunshine at 6:00 pm in the evening.

14As to Mr Ibrahim’s priors I refer to what the High Court said in Veen No.2 [1988] 164 CLR 465, [477] where the High Court said that:

The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.

15On that page they went on to say that such priors are relevant to show:  

…whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.

16Continuing on this topic by way of authority, is the case referred to me by
Ms Fox, Berichon v R [2013] VSCA 319, also referred to by the learned prosecutor. At [44] the Court of Appeal said:

‘…the applicant had a very serious and disturbing prior history with respect to the use of firearms. Although of course, he is not to be punished again for the prior offences, the applicant's prior history is relevant as an indicator of his moral culpability, his prospects of rehabilitation, his dangerous propensities and the community's need for protection, and the increased importance of specific deterrence as an animating factor in the sentencing process.'

17One, in light of such authority, needs to examine the prior offences of
Mr Ibrahim.  In November of 2013, at the age of 21, he received his first gaol sentence.  That sentence was for a number of offences but in particular burglary, being a prohibited person in possession of a firearm possessing a prohibited weapon and possessing amphetamine. On each charge he was given a period of imprisonment of 12 months, and on appeal in February 2014 the non-parole period was reduced from seven months to six months.

18In December 2015 Mr Ibrahim was convicted in this Court of aggravated burglary, a sentence pronounced by me, and he was given a period of imprisonment of 18 months with a community correction order of three years. There was pre-sentence detention of 343 days. As best I can ascertain it he got out of gaol thereafter in approximately September of 2016.

19In December 2017 he was further convicted in the Magistrates' Court of possession of a controlled weapon without excuse and possession of methylamphetamine, for which he was given two months' gaol. I would estimate therefore he got out of gaol in February of 2018.

20In the following months he came before this Court again for breach of the community correction order that I had imposed. That order was extended by me, he having pleaded guilty to the breach, to 31 December 2019 which as correctly pointed out by Ms Fox means that it has now ceased.

21On 30 June 2018, being a period in which the community correction order was operative, Mr Ibrahim was found in possession of three separate drugs and a controlled weapon.  He was at the Watervale Shopping Centre in Taylors Hill. Today has been tendered as Exhibit D the summary of that offending. He was in possession of methylamphetamines, GHB and Tramadol.  The controlled weapon was in fact a knife. 

22It would appear therefore that as a result either of the totality of his prior criminality, or the criminality committed on 30 June, he was served with the prohibition order which I have referred to.

23The prohibition order shows the date of service, and the reasons why the prohibition order is issued, all of the categories have been left blank, so there is no particular category marked as appropriate under the Act.

24For the offending which occurred on 30 June 2018, that I have already referred to he was sentenced on 19 November 2018 in the Magistrates' Court, and for all offences fined an aggregate fine of $1000.

25On 13 August 2018, he was found in Avondale Heights at a 7-Eleven store.  He had 14.12 grams of methylamphetamine, was carrying $3050 in cash, had two boxes of 22 calibre ammunition, which made up 100 individual rounds, and was found with a loaded silver 22 calibre revolver.

26Remarkably, and I maintain that phrase, despite the discussion this morning with Ms Fox, when that criminality went before the Broadmeadows Magistrates' Court on 1 March 2019 for the totality of offending he was given a aggregate sentence of 60 days. I expressed such reaction primarily by way of the seriousness of the commission of the very same charge that he was facing before this Court, that is Charge 1 in the indictment. The commission of those offences occurred in August of 2018 while on bail, and the proceeds were as indicated. Ms Fox has sought instructions in this regard and suggests that the sentence pronounced may be something to do with the fact that apparently the magistrate was told there was no DNA on the pistol.

27The prosecutor makes the point, which is appropriate, that Mr Ibrahim was the lone occupant in the mini in which the pistol was found.  However, I still make the point that such sentence is remarkable.  Even more so when one takes into account what Ms Fox has told the Court that apparently there is dead time in that 130 days has not been accounted for in the sentence.

28Coming back then to that sentence, which was passed, albeit mercifully, on
1 March 2019, we have, five months later, Mr Ibrahim committing the offences in this indictment.  I consider such analysis of his prior offending presents a concerning and serious history as to firearms which I am satisfied beyond reasonable doubt is associated with Mr Ibrahim being involved in criminal activity with drugs, either by way of possession and/or drug dealing and at the very least I am satisfied that the firearms are used in those circumstances for self-protection.

29As said by the Court of Appeal in R v Hudson [2010] 30 VR 610, 624, [54]:

‘Where the offence is “possession” of an unregistered firearm by a prohibited person, the use to which the firearm is put is relevant to the sentence in only a very limited way. More severe sentences for “possession” are generally reserved for cases where possession of the firearm is associated with ongoing criminal activity.'

30While of course the facts in Hudson were far more serious, being the use of a firearm in flight and against police, I am satisfied that the possession here is associated with ongoing criminal activity, albeit that I am unable to be specific as to what that activity was.

31I am confirmed in such conclusion by the facts as disclosed of Mr Ibrahim being permanently unemployed, his history of ongoing polysubstance abuse, as was set out in the reports to Carla Lechner, clinical psychologist, in particular Exhibits 5(a) and 5(b), and as submitted by the prosecutor when one looks at p.4 of Exhibit 5(a), that is the latest report, where Mr Ibrahim disclosed to Ms Lechner a habit of some 3.5 grams of methylamphetamine a day, which roughly equates to 80 to 89 per cent of an ounce per week, on every second day the consumption of GHB, in addition to participating in cocaine and ecstasy.

32Given the above I refer to the statement as to sentencing in Berichon, by Redlich AJ, at [31] and by Priest AJ, at [150]-[151]. It is important however when referring to Berichon to recall that at the time of the sentence below in Berichon the maximum penalty for such offence was higher than is now applicable, being 15 years, and the actual prior activity with firearms by Mr Berichon was even more serious than Mr Ibrahim's.

33I therefore reject the submission of Ms Fox that the offending should be seen at a low level.  It is also not inappropriate to note that one of the purposes of the Firearms Act, as set out in s.1, is to ensure public safety and peace. The scheme of the Act itself demonstrates the graduated punishments provided by Parliament leading to a maximum of ten years as provided for in this offence. 

Contravention of the Community Correction Order

34Before coming to Ms Fox's plea I should state the Court also has before it a breach proceeding pursuant to s.83D of the Sentencing Act as to the combined gaol and community correction order made by me on
16 December 2015, and extended on 7 March 2018 to 31 December 2019.

35The contravention report is dated 15 October 2018, that should be exhibited as Exhibit F and then the amended schedule to the charge, which took into account all of the criminality, including this indictment, should be also tendered as Exhibit G.  That amended report is dated 11 September 2020.

36As indicated Ms Fox had pleaded guilty on behalf of Mr Ibrahim to this offence. It is noted that at p.4 of the original report, Exhibit F, the recommendation of Corrections Victoria was that the order be cancelled and the offender be resentenced.

37As pointed out today by Ms Fox such recommendation of course pales away because the actual community correction order has now ceased to exist.  The learned prosecutor submitted that the views expressed in the breach report should be accepted, and as to the indictment a period of imprisonment should be imposed with a non-parole period, and that it was not appropriate for a further community correction order to be imposed.

38The prosecutor was at pains to remind the Court of the issue of totality in the circumstances, of which the Court has been I might say very mindful.  Coming then to the plea, Ms Fox sought in regard to the firearms offence a combined sentence pursuant to s.44.

39I pointed out to Ms Fox the restrictions set out in s.44(1) which is accepted by Ms Fox. Indeed Ms Fox submitted a further email to the Court, dated 16 September 2020, which we have discussed today.

40In the original submission what was sought was a combined order, after deduction of pre-sentence detention of 435 days, insofar as the firearms charges are concerned. Such an order would not be possible because of s.41 of the Sentencing Act.

41After discussions today, the defence submission comes down to a combined period of imprisonment and community correction order in regard to the indictment, and essentially as I understand it that I take no further action in regard to the breach of a community correction order.

42Further Ms Fox put to the Court that it would be necessary in any sentence to take into account the dead time, which is accepted by the prosecutor, and upon which R v Renzella [1999] VSCA 85 principles apply, being the 130 days that for some unaccountable reason hangs over from the sentence imposed in the Magistrates' Court on 1 March 2019.

43Ms Fox submitted in the alternative, if I was not inclined to impose a community correction order or a combined community correction order, the importance of totality which I accept.

44As to the plea, Ms Fox submitted to the Court the need for an appropriate discount to be made for the plea of guilty, the utilitarian benefit of such plea, and in the particular circumstances in which this community is suffering, the principles set out recently by the Supreme Court in Bourke [2020] VSCA 130, [32] in regard to pleas made during this if I use the phrase 'COVID time'. I take into account all those principles and apply the appropriate discount.

45As to the personal history, in [4] through to [26], Ms Fox set out
Mr Ibrahim's history, of which I am well aware given my sentence of Mr Ibrahim which sentencing remarks are dated 4 February 2016, and in particular I refer to [20] through to [31].

46I had referred to Ms Lechner's report in that sentence, which has become Exhibit 5(b) in this plea, and I will shortly refer to the current report before the Court dated 4 September 2020.  In regard to that personal history I note the Statement of Intellectual Disability which has been tendered as Exhibit 6 in this plea, although I note that remarkably it is undated.

47As to the more recent report of Ms Lechner, Exhibit 5(a), essentially it is no different to the earlier report. However it notes the history and at the time of the interview with Ms Lechner, Mr Ibrahim is described as being in remission, as to drug taking, while in custody.

48There is of course, apart from those instructions, no proof in that regard.  But of course there is no proof the other way that he has been involved at all.  Such is set out in the summary at p.6.  Further, the history is unfortunately that once out of a custody type circumstance Ms Lechner states that Mr Ibrahim quickly lapses, as a result of environmental stress, into the use of various substances.

49There are however positive statements in regard to Mr Ibrahim to at p.4:

'With respect to his relationship with others Mr Ibrahim stated that he is close to his family and feels as though he is constantly letting them down.  He is hopeful of forging a more positive relationship with his ex-partner so he can have contact with his daughter.  His social networks appear to be fairly transient; he is vulnerable to their influence in his quest for acceptance and approval.'

50At p.4 is my earlier reference to his substance consumption, alcohol is not a problem to him.  He remains of the same intellectually capacity, and at p.5 again the comments made as to him being subject to symptoms of stimulus use disorder in remission.

51In the ‘Summary & Opinion’ at p.6, again the fact of him being in remission in a controlled environment is noted, the major depressive disorder, unresolved grief and guilt in relation to the death of his brother and unresolved post-trauma symptoms arising from his exposure to immense violence in his early formative years.  In addition he suffers from mild intellectual disability that limits his capacity for positive problem solving and management of complex feelings. He has learnt to use substances to manage his internal distress and quickly relapses into drug use in the face of environmental stress. 

52At pg.7, [4] of the summary the following is said:

'The more recent charges seem to have arisen by virtue of his negative associations and inability to grasp the serious implications attendant to such associations.  Mr Ibrahim has now been in custody for a year, is abstinent from drug use and appears to be maturing somewhat in his approach to his future goals.  His self-esteem and sense of worth would be greatly enhanced by his ability to engage in vocational training and to gain some form of employment even on a part time basis, hence the importance of linking him with the NDIS.  Mr Ibrahim's rehabilitative needs are not being met with a custodial setting.  He is currently isolated from meaningful family support and this sense of isolation feeding into his feelings of depression.  He has a high level of family support and is now likely to be able to see his daughter under family supervision, this being an important motivating factor to remain away from drugs and trouble in the future.'

53It notes the need for treatment and further at [5]:

'In view of his genuine cognitive limitations support of a Disability Care Worker who actively and regularly ensures his engagement with appropriate services, such as NDIS, is strongly recommended.'

54There is an offer of employment once he exits gaol and that is set out at Exhibit 3, and again as has been remarked by Ms Lechner, his family and indeed his ex-partner, the mother of his daughter, remains supportive as set out in Exhibit 4.

55Ms Fox also put to the Court the issues as to him serving gaol while the COVID-19 risk exists as set out in numerous authorities this year. It must be said, to the eternal credit of this particular wing of the Victorian bureaucracy, that no case yet has been disclosed of COVID-19 within the prison, albeit the numbers of exposed persons sentenced who are then isolated.

56However, that does not stop the restrictions that Mr Ibrahim has had to endure since March 2020, those restrictions being essentially by way of half day lockdowns, restrictions in services to which Ms Lechner refers, particularly important given Mr Ibrahim's intellectual issues, and cognitive issues and of course the restriction on family visits which also impacts on him.

57I accept the propositions put by Ms Fox as to the effect upon him of imprisonment and I accept principles five and six of Verdins are applicable.  Ms Fox's submits as detailed at [64] of her written submissions that Mr Ibrahim has a capacity, as demonstrated from what he has done to date in gaol by way of not being involved in drugs and his indications of intent to reform. Unfortunately I think the Court can only take a guarded view in this regard considering his issues, challenges and history, as I said in my sentence in 2015, [38], those circumstances have not changed.  It is a very difficult balance pronouncing the sentence here.  However, having taken account of all of the submissions put to me and given the seriousness of this firearms charge, I do not consider that a combined community correction order is appropriate.

58In that regard I refer to Hutchison [2015] VSCA 115, [17] where Priest JA said:

'Acknowledging that a CCO might be appropriate even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment it should not be thought that Boulton offers a ‘get of gaol free card’ in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.  One of the purposes for which a sentence may be imposed is of course to punish the offender to the extent and in the manner which is just in all the circumstances.  There will be cases, indeed many cases, where having regard to the seriousness of the offending a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which in all the circumstances is just.  At the risk of again traversing well-trodden ground it is axiomatic that in every case the sentence imposed must depend on its own facts, including the circumstances of the offending and the offender, and the circumstances of aggravation and mitigation.'

59I stress again the difficulties of sentencing here have not changed since 2015. Taking into account all matters that have been put to me, the need in particular to consider the intellectual disability and mental issues which Mr Ibrahim faces, his background as detailed, and balancing that against the need for a sentence which effects punishment, general deterrence, denunciation, specific deterrence, protection of the community and of course all the principles set out in s.5 of the Sentencing Act I come to sentence Mr Ibrahim as follows.

Sentence

60Mr Ibrahim, given your circumstance there is no need for you to stand, you just stay where you are and I will pronounce the sentence. Then I will give the opportunity to Ms Fox, if she seeks it, to explain to you in perhaps clearer terms than I can precisely what the sentence is.

61In regard to Charge 1 on the indictment I impose imprisonment of two and a half years.  In regard to Charge 2, imprisonment of six months.  I order that one month of the sentence in regard to Charge 2 be served cumulatively upon the sentence in regard to Charge 1, making a total effective sentence of two years and seven months.

62In regard to such sentence I order that the prisoner must serve a period of
22 months before being eligible for parole.  I declare that the 435 days served to date as pre-sentence detention be deemed service of this sentence. Hence those days roughly make up 14 months, the period to be served thereafter before parole would be eight months.

63I am then required by the Parliament to make a declaration under s.6AAA of the Sentencing Act.  That declaration relates only to one factor, the plea of guilty.  Clearly there are many, many factors in this sentence. However, doing as best I can, I indicate that had Mr Ibrahim not pleaded guilty the sentence I would have imposed is three and a half years with a minimum period before being eligible for parole of 32 months.

64Coming then to the breach proceedings, Mr Ibrahim will be convicted of the breach under s.83AD of the Sentencing Act. I impose one months' imprisonment for such breach, which I order to be served concurrently with the sentence that I have imposed for the firearm charges.

65Coming then to s.83AS I intend to simply confirm the order, which is the power given to me under sub-s.(b) of that section.  I might indicate that insofar as the issue of totality the sentence imposed for the indictment charges, and the decision not to impose any further sentence in regard to the breach of the community correction order, is enlightened, if I could use that word with no immodesty, by the submissions as to totality and in particular by taking into account the dead time of 130 days.

66My last comment would be this; I would ask that both the gaol authorities and parole authorities to do all that they can to assist Mr Ibrahim on parole. The risks to Mr Ibrahim once he is removed from gaol are clearly apparent from Ms Lechner's report. Mr Ibrahim will need particular support otherwise we may be involved in not only more serious criminality but institutionalisation.

67Is there any other matters that I need to clarify from either counsel?

68Perhaps for the benefit of my associate if I just go through the details of the sentence again.

69MS FOX:  There was only one matter, Your Honour, and perhaps I might have just missed it but I am not sure that Your Honour pronounced the sentence for the summary offence.

70HIS HONOUR:  I did not, you are right.  The summary offence I think a fine in the circumstances would be just so I will just convict him and discharge him.

71MS FOX:  As the Court pleases.

72HIS HONOUR:  Madam Associate, so on Charge 1 I have imposed a sentence of two and a half years.  On Charge 2 a sentence of six months.  I have cumulated one month of the sentence on Charge 2 with the sentence on Charge 1, making a total effective sentence of two years and seven months.

73I have ordered that the period that must be served before Mr Ibrahim will be eligible for parole is a period of 22 months.  I have made an order under s.18 that the pre-sentence detention of 435 days served in regard to the indictable offence be deemed as service of this sentence and a declaration to that effect be recorded in the records of the Court.

74As to the breach proceedings I have convicted Mr Ibrahim of a breach of the community correction order under s.83AD and imposed one month's imprisonment to be served concurrently with the sentence imposed in the indictment.

75Under s.83AS I have made an order pursuant to sub.s(b) confirming the order. The declaration under s.6AAA is three and a half years and 32 months. It should be noted that the dead time of 130 days, agreed by counsel as being appropriate for my consideration, has indeed been taken into account by me not only in the sentence for the indictable matters but in the action taken in regard to the breach, and the fact that I have confirmed the order.

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