Director of Public Prosecutions v Jalal

[2016] VCC 339

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01846

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALI JALAL

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2016
DATE OF SENTENCE:	30 March 2016
CASE MAY BE CITED AS:	DPP v Jalal
MEDIUM NEUTRAL CITATION:	[2016] VCC 339

REASONS FOR SENTENCE
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Subject:  Armed Robbery
Sentence: 4 years imprisonment/ 2 years non-parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes
For the Accused	Ms A. Beech

HIS HONOUR:

1Ali Jalal, you have pleaded guilty to two charges of armed robbery for which the maximum penalty for each offence is 25 years imprisonment.  You have also pleaded guilty to one charge of attempted armed robbery for which the maximum penalty is 20 years imprisonment.  In addition, you also pleaded guilty to two charges of possession of a drug of dependence for which the maximum penalty on each charge is one year imprisonment.  In this court you also consented to me sentencing you for a summary offence, namely, possession of a controlled weapon without lawful excuse.  The maximum penalty for this summary offence is imprisonment for one year and/or a fine of 120 penalty units.

2The circumstances of your offending are summarised in a prosecution opening which was read to the court by the prosecutor Ms Holmes.  The summary was accepted by your counsel Ms Beech as being accurate and as forming a proper basis upon which I can proceed to pass sentence upon you.  For these reasons it is not necessary that I again set out in full that which is already set out in the summary.

3Your offending proceeded over a short period between 1 April 2013 and
10 April 2013.  You committed these offences shortly after you were released from prison in New South Wales on parole for earlier offences.  Shortly after you committed these offences in Victoria you were taken back into custody in New South Wales where you served a further 2 ½ years' imprisonment at the completion of which you were extradited back to Victoria to face these charges.  So whilst your offending in Victoria occurred between the first and 10 April 2013, you were not extradited back to Victoria until 29 August 2015 and you have been in custody on remand to face these charges since that time.

4On 1 April 2013 you robbed a loan attendant at a news agency in Brunswick East.  At the time you were armed with an open flick knife and you robbed the attendant of cash and cigarettes with a total value of $1485.  At the time you pointed the knife in the direction of the attendant and said, “Give me the money”.  I accept that your offending in this charge was relatively unsophisticated and unplanned and you do not appear to have made any attempt to disguise your identity.  What you did was captured on CCTV.  (Charge 1)

5Eight days later, on 9 April 2013, you were found lying across the back seat of a vehicle when it was intercepted by police.  A search of the vehicle found you in possession of a trafficable quantity of methamphetamine (ice) and a small quantity of cannabis.  The prosecution does not allege that you were engaged in trafficking either of these drugs. (Charges 2 & 3)

6You were arrested at which time you gave the police a false name and address.  You were later released pending further enquiries.

7On 10 April 2013 you entered a news agency in North Carlton.  Armed with a small blade you approached the attendant who was accompanied by his
13-year-old daughter.  You demanded money and when the attendant refused you left the store.  Again, your offending was captured on CCTV.  Again, you made no attempt to disguise yourself and your offending would appear to be random and unsophisticated. (Charge 4)

8After leaving the news agency where your demand for money was refused, you went across the road and went into the nearby pharmacy where you again produced the same small blade and demanded cash from a staff member.  You reached across the counter and took the till from the register.  At the time there were other customers in the pharmacy including a mother with her two young children.  You ran from the pharmacy dropping the till in the process but you escaped with $506 cash.  Again this offence was captured on CCTV. (Charge 5)

9In her outline of submissions in writing and, in this court on the plea, your counsel Ms Beech acknowledged that your offending in relation to the armed robbery charges and the attempted armed robbery charge was serious and, she conducted the plea on the basis that in sentencing you I would have to impose “a substantial term of imprisonment”.  That was a concession appropriately made in my opinion.  Your offending is serious because it is repetitive and on each occasion involved the use of a weapon and an implied threat of violence against unarmed and vulnerable victims who were merely going about their business working as shop assistants.

10Crimes of this kind are prevalent against soft targets and because there is almost always an implied threat of violence, sentencing for offending of this kind is almost always highly influenced by application of the principle of general deterrence.  Further, where the offender is a person who, like you, has a number of prior convictions for similar offending, in passing sentence the court must have full regard to proper application of the principle of specific deterrence and the sentence must reflect an appropriate level of denunciation.

11I received into evidence a victim impact statement which has been completed by the victim of your offending in Charge 1.  That person has had to undergo psychological counselling having been traumatised by fear at your hands and the effect offending in this way upon the victims of such crimes can be seen from a full reading of the victim impact statement.  In passing sentence upon you on Charge 1 I have taken the content of the victim impact statement into account as I must.

12You were interviewed by Victorian police in relation to these charges whilst you were still in custody in New South Wales on 27 January 2014.  The allegations were outlined to you and you were shown the CCTV footage.  You denied any involvement although you accepted that you had been in Victoria at the relevant time.  You told police that you were so affected by drugs and alcohol that you had difficulty recalling things.

13To your credit you have pleaded guilty to the charges and I treat you as having done so at the earliest possible opportunity.  You were extradited to Victoria from New South Wales on 29 August 2015.  You faced a filing hearing on 1 September 2015 and the matter was resolved on 14 October 2015 and proceeded by way of a straight hand up brief on 22 October 2015.

14By your pleas of guilty you have thus saved the time and costs of a contested committal and possibly three trials.  You have also avoided the need for your victims to relive these events by having to give evidence against you.  In passing sentence, I have taken your pleas of guilty into account as I must.  You are entitled to a reduction in sentence because of your pleas of guilty at the earliest possible opportunity.

15I also take your pleas of guilty as evidence of genuine remorse on your part for your offending.

16As part of the materials provided to me by your counsel on the plea, I was provided with a letter from you in which you express appropriate regret for your offending and, importantly, what I regard as an appropriate level of empathy for the immediate victims of your crimes and in arriving at an appropriate sentence I have taken all of this into account.

17I turn to your background circumstances and for this purpose I borrow from the helpful outline of submissions filed by your counsel and the attached biographical details.

18You were born in Iraq on 25 February 1989. You are now 27 years of age and you were 24 years of age at the time of this offending.  You are married with young children and I was told and accept that you have the ongoing support of your wife. 

19You are of Kurdish descent and your parents fled Iraq because they were amongst a class who were persecuted.  They fled to Pakistan with your three siblings.  Your father passed away when you were aged five.  As a result, when you arrived in Pakistan you did not attend school but immediately commenced working in a brick making factory where you attended each day with other young children to compete for work for which you received a pittance in pay which you contributed towards the support of your mother and siblings.

20Whilst in Pakistan you and your family were victims of racism and you experienced extreme violence and abject poverty.  You told Ms Lechner, and I accept, that whilst you were living in Pakistan you were regularly sexually abused by a male neighbour.  When you were aged nine your mother went on a hunger strike to draw attention to her plight, demonstrating in front of the United Nations building and I received in evidence copies of newspaper clippings depicting her doing so.  You migrated to Australia with your mother and other siblings as refugees when you were aged nine.  You lived in the western suburbs of Sydney and you attended school but you struggled and you were bullied and then you yourself became a bully in the result that you were expelled from school during Year 8 and you have had no further education.

21I was told and accept that you have spent about eight to nine out of the last ten to 11 years in jail.  You have rarely been employed, the best part of your working life being when you had work as a tiler for a few months when you were aged about 18.  At the time of offending you were in receipt of a Centrelink Newstart Allowance.

22A central feature of your background, apart from the fact that it appears to have been extremely deprived, is the fact that you are a drug addict and you were affected by drugs at the time you committed these offences.  Your offending was motivated by the need to acquire money to buy drugs.

23You began using marijuana when you were aged 13 and this quickly became a daily habit for you.  You began using amphetamines and ice when you were aged 14.  Also, at times you have abused alcohol.  You have been a long term drug user and your criminal history which can be traced back to
November 2007 when you were aged 20, is linked to your drug use.

24Having been reclaimed by the parole board in New South Wales and having been on remand in Victoria for these charges, you have now been in custody for more than 2 ½ years since offending.  I accept that in passing sentence I must have full regard to the proper application of the principle of totality.  The prosecution does not take issue with this submission made by your counsel.  The sentence that I will shortly pass is heavily influenced by the need to properly reflect application of the totality principle.

25When you were arraigned you admitted a significant criminal history for offending in New South Wales.  It began in November 2007 when you were sentenced to a term of imprisonment of three years with a non-parole period of 16 months with conditions that clearly show that your offending was drug-related.  You were sentenced for the crimes of assault with intent to rob and being armed with an offensive weapon.

26Amongst other prior convictions on 4 October 2011, you were sentenced and imprisoned for a period of 4 ½ years with a non-parole period of one year and nine months for the offence of aggravated robbery.

2714 days later you were imprisoned for a period of six months at the Parramatta Local Court on the charge of common assault.  On 30 April 2012 you faced the Penrith local Court charged with drug offences.  I was told and accept that the sentences imposed upon you as revealed in the list of prior criminal history in New South Wales were imposed cumulative upon earlier sentences.

28I received into evidence a psychological report from Ms Carla Lechner dated 23 December 2015.  In the introduction section of that report Ms Lechner say, inter alia:

“I note that Mr Jalal has an extensive prior history interstate.  This has arisen in the context of a poly-drug abuse problem.  He presents with symptoms of a Stimulant Use Disorder (DSM 5) - in remission in a controlled environment.  He also has symptoms of an underlying Post Traumatic Stress Disorder (DSM 5) secondary to experiences of extreme abuse and violence in his formative years.  Mr Jalal has learnt to cope with his internal distress and post trauma symptoms by using drugs as a form of “self-medication”, this in turn, having a dis-inhibiting effect on his behaviour.  He currently presents as a “high” risk of further violence and is clearly in need of intensive therapy that addresses the dual issues of drug addiction and parlous mental health.”

29Ms Lechner’s report outlines in some detail the nature of the abuse and the nature of the extremely violent acts which you were subjected to as a young person living in Iraq and as a refugee in Pakistan.  I accept the opinion of
Ms Lechner that you suffer from post-traumatic stress disorder and that you have turned to drugs as a form of self-medication.  But you did so many years ago and you are fully aware of the effects of drugs upon you.  This offending is not something that occurred suddenly.  It was something that you knew would occur if you continued to take drugs and you chose to do so.

30In her written outline Ms Beech submitted that there is a link between your offending and your PTSD and drug abuse.  She submitted that if I were to find on the balance of probabilities that this link exists, then the first four principles in Verdins v R would have application in sentencing because your moral culpability in the offending would be reduced to a degree.  She also submitted that the kind of sentences I impose would be affected and she submitted in this case this would affect the fixing of a non-parole period so that you would be released into the community with an appropriate period of supervision and treatment to enable you to overcome the problems which you obviously have.  Ms Beech also submitted that the sentence imposed should moderate the emphasis given to general deterrence and also to specific deterrence.

31Whilst in passing sentence I have taken fully into account your incredibly deprived background and the terrible experiences that you have been subjected to as a child and a child refugee and that in the result you suffer from PTSD and they may all be reasons why you have turned to drugs, I do not accept that your moral culpability should be regarded as being reduced for these crimes.  In my opinion there is no causal link between this offending and the fact you are a drug addict.  You became a drug addict long before this offending and at the time you offended you were fully aware of the possible consequences to you and the way you might act when drug affected.

32In Wright v R [2015] VSCA 333, the Victorian Court of Appeal again revisited the issue of the relevance of drug addiction as a mitigating factor in sentencing. The Court said this, commencing at [46]:

3346.      JW was thus to be viewed as a person who had offended under the influence of drugs.  In a series of decisions, this Court has explored the relevance of drug addiction as a mitigating factor in sentence.  Whether the existence of an addiction as a causal factor in the offending warrants a reduction in moral culpability depends upon ‘the extent to which a decision to experiment with drugs is freely made’. R v McKee [2003] VSCA 16 [13].

3447.      The sentencing court may for this purpose have regard to the circumstances which led to the development of an addiction.  Youth, disadvantage and impairment of mental functioning are all capable of bearing on the sentencing court’s determination of that issue. Ibid [13], [21];  R v Lacey [2007] VSCA 196 [16]–[17].

3548.      In Johnston v The Queen, [2013] VSCA 362 the appellant had an underlying depressive illness, which both preceded and was exacerbated by his use of drugs. The Court upheld the sentencing judge’s refusal to accept that there was a causal link between his depressive disorder and his drug abuse. Redlich JA (with whom Priest JA and Robson AJA agreed) said: Ibid [14]–[15]:

36"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.  

37Where 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 effects 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 is the predictable consequence of 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."

38In passing sentence I have given full consideration to these matters and to further submissions made supplementary to the plea. I do not accept that principles 1, 3 & 4 of the Verdins principles have general application here so that general or specific deterrence should be moderated.  I do accept that because you suffer from a PTSD and will benefit from ongoing treatment and support upon release, that these factors influence the kind of sentence I impose.  For this reason and because you have been in custody now for some time, I have reduced the total effective sentence and the time that you will potentially spend in prison by fixing a non-parole period that will enable you to be eligible for parole earlier that may have been expected in some circumstances.

39From what I have seen and read about you, I have formed the view that your prospects for rehabilitation are poor because you are a drug addict.  I was encouraged however by what you wrote in your letter to me which suggests that your priority in life is to care for your family.  That is admirable.  I was also encouraged by the fact you are attending and completing as many courses as you can to ready yourself for life after prison.  I hope that your time in prison continues to be well spent and that you rid yourself from drugs, but you are the only person that can drive that outcome and that is the key to your ultimate rehabilitation.

40On Charge 1, armed robbery, you are convicted and sentenced to a term of imprisonment of three (3) years.

41On Charge 2, Possession of a drug of dependence you are convicted and discharged.

42On Charge 3, Possession of a drug of dependence you are convicted and discharged.

43On Charge 4, attempted armed robbery, you are convicted and sentenced to a term of imprisonment of one (1) year.

44On Charge 5 armed robbery, you are convicted and sentenced to a term of imprisonment of three (3) years.

45On the summary charge of possession of a controlled weapon, you are convicted and sentenced to a term of imprisonment of one (1) month.

46I direct that one year of the sentence imposed on Charge 5 cumulate upon the sentence imposed on Charge 1, making a total effective sentence of four (4) years.

47I direct that you serve a minimum term of two (2) years before you are eligible for release on parole.

48For the purposes of s. 6AAA of the Sentencing Act I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of six (6) years imprisonment and I would have fixed a minimum term of four (4) years before which you would have been eligible for release on parole.

49I declare that there has been 213 days pre-sentence detention and that 213 days be reckoned as having been already served under the sentences passed this day and be deducted administratively.

50There were applications for disposal orders relating to drugs and paraphernalia and the knife you used.  Those orders were not opposed and I will sign them.

51There were also applications for compensation orders which were not opposed.  They were for Nicholson St Lotto in the sum of $1,485 (Charge 1) and David Nolte Pharmacy in the sum of $506 (Charge 5).  Those orders were not opposed and I will also sign them.

52The prosecution also seeks on order for the taking of a forensic sample from your body.  For the reasons stated in the order I will also sign that order.

53Any matters arising out of that with counsel?

54MS PRATT:  No, Your Honour.

55MS HERSCH:  No, Your Honour.  Your Honour, sorry, if I could just note, I had calculated pre-sentence detention to be 214 days not including today and I think Your Honour said 213 days.

56HIS HONOUR:  I did.  What do you say, Ms Pratt?

57MS PRATT:  Your Honour, my application was in agreeance with Your Honour of 213 days.

58HIS HONOUR:  Yes, that is what I thought.  Very well, thank you.  Could you remove Mr Jalal please?

59PRISON OFFICER:  Yes, Your Honour.

60HIS HONOUR:  I will just leave the Bench for the moment.

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