Director of Public Prosecutions v Jam
[2024] VCC 641
•10 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-02148
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TOMAS JAM |
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JUDGE: | KARAPANAGIOTIDIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 May 2023 |
DATE OF SENTENCE: | 10 May 2024 |
CASE MAY BE CITED AS: | DPP v Jam |
MEDIUM NEUTRAL CITATION: | [2024] VCC 641 |
REASONS FOR SENTENCE
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| Subject | CRIMINAL LAW – Sentencing |
Catchwords: | Plea of guilty – Armed robbery – Youth – Mental health - Substance use – Verdins – Social disadvantage – Good prospects of rehabilitation - Remorse |
Legislation Cited: | ss5(1), 6AAA Sentencing Act 1991 (Vic) |
Cases Cited: | DPP v Herrmann [2021] VSCA 160 - Marrah v The Queen [2014] VSCA 119 - R v Verdins (2007) 16 VR 269 - R v Mills [1998] 4 VR 235 - Azzopardi v The Queen [2011] VSCA 372 - Boulton v The Queen - [2014] VSCA 342 |
Sentence: | Total Effective Sentence of 9 months’ imprisonment, in combination with a 16-month Community Corrections Order |
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr G. Mohammed | Office of Public Prosecutions |
For the Accused | Mr C. Tom | KPT Legal |
HER HONOUR:
1Mr Jam, you have pleaded guilty to one charge of armed robbery.
Summary of offending
2The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A on the plea and constitutes the factual basis upon which I sentence you.
3At approximately 11.47 on Friday 28 April last year, you were walking westbound along Poole Street, Deer Park and into the Bon Thomas Reserve.
4At approximately 12.10 pm the victim in the matter, Mr Konstantinos Mouchtis was driving an orange Jeep wagon in the Deer Park area.
5Mr Mouchtis had with him in the vehicle, two Dalmatian dogs, one of which became sick and vomited in the passenger side of the car. Mr Mouchtis sought a location to stop his vehicle, travelled westbound along Poole Street, Deer Park and stopped at the end of Poole Street in the carpark adjacent to the Reserve. Mr Mouchtis exited the vehicle and walked around to the rear passenger door.
6You approached Mr Mouchtis and stated, 'Do you have any smokes?'
7After a short exchange, he observed a black hunting knife approximately 20 centimetres long in your right hand. You then made a demand of Mr Mouchtis to 'Give me your things' whilst holding the knife in your right hand by your side.
8Mr Mouchtis ran around the vehicle away from you. As he stood on the other side of the vehicle, you reached in through the vehicle's open window and stole a black Audio Technica wallet from within an open black backpack. The wallet contained various items including cash and his driver's licence. A PK9 dog treat pouch fell off Mr Mouchtis’ belt as he ran away from you, and you also stole this pouch. You then stated repeatedly to Mr Mouchtis 'Get in your fucking car and go.'
9He entered and locked himself in the vehicle. Believing his mobile phone to be stolen he pleaded 'My phone? Please can I have my phone?'
10You retorted 'Fuck off and go.'
11At approximately 12.15 pm Mr Mouchtis fled from the incident location and soon asked for help and for the police to be contacted.
12At approximately 12.20 pm police attended and a handwritten statement was obtained from Mr Mouchtis. Directly after the incident, you walked out of the Bon Thomas Reserve and eastbound along Poole Street, Deer Park, and you can be seen on CCTV footage walking back to your residential address
in Poole Street, while holding a small satchel.13On Saturday 29 April 2023, police conducted a closed-circuit television canvas of Poole Street, and you were identified as a person of interest.
14On Monday 4 September 2023, police executed a search warrant at your address. During the search, they located a number of items including under your bed, a backpack containing the PK9 dog treat pouch belonging to Mr Mouchtis You were arrested and then interviewed as referred to in the prosecution opening.
Gravity of offending
15Mr Jam, armed robbery is a serious offence and that is indicated by the maximum penalty. As accepted by your counsel, the experience for
Mr Mouchtis was plainly very frightening and confronting.16Your offending was brazen, it was completely unprovoked, and your victim was a stranger to you. You brandished a black hunting knife causing Mr Mouchtis to fear that he was going to be stabbed. As he said later 'Please call police, I've been robbed, I almost got stabbed.'
17Your offending happened in a public place in broad daylight, and you were on a Corrections Order at the time. As submitted by your counsel, I do note the absence of a number of aggravating features that would elevate this to a more serious example of armed robbery. The offence was not committed in company or at nighttime, no physical injury was caused to the victim, no disguise was used, and I accept that the offending was relatively unsophisticated and appears to have lacked any real degree of planning.
Plea of Guilty
18You entered a plea of guilty after a sentence indication heard on 19 April 2024, and you were arraigned on 23 April 2024. Your plea has not been entered at the earliest opportunity and I note that a contested committal hearing did proceed. I accept however, that your plea still entitles you to an important sentencing discount. It has utilitarian value and has avoided the need for your victim to give evidence at a trial and it has saved the community the expense of a trial. Your plea of guilty also represents, I accept, you taking responsibility, and a willingness to facilitate the course of justice.
Personal circumstances
19Your personal circumstances were canvassed by your counsel, Mr Tom, and in the report of psychologist Daniella Kocic.
20In brief, you were born in North Sudan and are the eldest of seven children. You have three brothers and three sisters. Your family fled the conflict in Sudan and came to Australia as refugees when you were three, and initially settled in Sydney.
21Your family struggled financially, and your father found it difficult to maintain stable employment. Consequently, the family moved from Sydney to Wagga Wagga and then to Melbourne, when you were in primary school.
22You witnessed and were exposed to family violence between your mother and father. You also experienced physical abuse at the hands of your father. He was prone to violent outbursts and as the eldest, you suffered the brunt of this and tried to shield your younger siblings from the violence.
23You report living in constant fear and uncertainty as to your father's mood. Further impacting the stress of the family environment was your sister's ill-health. She suffered from a birth defect to her throat and tongue which impacted her breathing and required a number of surgeries and periods of hospitalisation.
24Your father left the family home in 2016 when your younger sister was sick. He did not provide any financial support or assistance, and this led to your family becoming homeless and living with your aunt for a year.
25You attended Catholic Regional College in St Albans up until Year 11 when you were expelled. You struggled academically and experienced difficulties paying attention. Also, you suffered social isolation and racially motivated bullying, and you struggled, particularly given the other stressors in your life, including your parents' separation.
26After school, you worked in short term roles in warehousing and labouring but had difficulty maintaining employment. You completed a plumbing pre-apprenticeship course in 2019. You are eager to explore obtaining a plumbing apprenticeship upon your release from custody.
27You have a history of substance abuse. At the age of 16, you commenced using cannabis up until your remand. You have a history of regularly abusing Xanax and of heavy binge drinking.
28In sentencing you, I do take into account your background of disadvantage, abuse and hardship. Your counsel referred to the Court of Appeal in Mara v The Queen where it was stated that an offender's social disadvantage may explain the offender's conduct thereby reducing moral culpability, though it notes increasing the importance of community protection.[1]
[1]Mara v The Queen [2014] VSCA 119
29Adopting the general approach, I accept that your subjective culpability cannot be equated with that of a person who has the advantage of a stable and regular environment, free of violence and abuse during their childhood and formative years.[2]
[2]DPP v Herrmann [2021] VSCA 160
Youth
30I also take into account that you were 23 at the time of offending and are now 24. The principles relevant to young and youthful offenders are well established.[3] The rehabilitation of young offenders is one of the great objectives of the criminal law. Of course, the principles need to be considered against the seriousness of the offending and, the importance of deterrence, denunciation and community protection.[4] I do consider that your youth is an important factor and should have a moderating effect on the sentence.
[3]See R v Mills [1998] 4 VR 235, 241.
[4]Azzopardi v The Queen [2011] VSCA 372.
Mental Health
31You report experiencing anxiety from a young age and that his has impacted your sleep and ability to socialise. You were assessed by psychologist
Ms Kocic who opines that a diagnosis of Generalised Anxiety Disorder was indicated. While psychometric testing was not indicative of anxiety symptoms, Ms Kocic's view was that the results are not likely to be an accurate representation of your current mental state.[5] She recommended further neuro-psychological assessment to determine if you have a specific learning disability or cognitive impairment.[5]Report of psychologist Ms Daniella Kocic dated 28 March 2024, paragraph 61
32Your counsel submits that Verdins[6] limbs five and six are relevant to the sentencing exercise. Ms Kocic has opined that imprisonment would likely weigh more heavily on you. She states:
'In individuals with generalised anxiety disorder and a trauma history, there is a potential for significant mood fluctuation and the volatile nature of the prison environment can further exacerbate your symptom profile and risk of decompensation.'[7]
[6]R v Verdins (2007) 16 VR 269.
[7] Report of Ms Daniella Kocic, paragraph 109
33She also considers that your psychological profile places you at a higher risk of inappropriate or disproportionate responses due to poor emotional regulation and a lack of health coping mechanisms.[8]
[8] Report of Ms Danielle Kocic, paragraph 110
34As discussed at the earlier sentencing indication, I accept that limb 5 of Verdins is enlivened but I am not satisfied on the material that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
Prospects of rehabilitation
35In my assessment of your rehabilitative prospects, I take into account your prior criminal history, which is limited, though it is certainly relevant. As already noted, you are also on a Community Corrections Order at the time of the offending which I note is yet to be listed for a breach.
36On her assessment Ms Kocic considered that you present with a high general risk of reoffending, however the primary risk factors which increase your risk are amenable to treatment.[9] Ms Kocic opines that:
'Your risk of reoffending can be reduced through appropriate adaptive treatment and pharmacological treatment to manage your mental health issues and substance use, thus making your prospects of rehabilitation fair.'[10]
[9] Ibid, paragraph 92.
[10] Ibid, paragraph 93.
37I also take into account that you are still a relatively young man and that you continue to have family support and will be able to live with your mother and siblings upon release. Your mother has attended court on many occasions in support of you. Further, your counsel submits that you are willing and motivated to engage in treatment and that your insight is developing.
38On the issue of insight, I note that during your assessment with Community Corrections recently, you reflected upon your offending. You described your offending as disgraceful and advised the assessor that the impact on the victim would have been terrible. I also consider further work needs to be done in respect of your insight, given the reflections of Ms Kocic in this regard that were quite properly raised by the prosecution.
39In all the circumstances, Mr Jam, I consider your prospects for rehabilitation to be reasonable provided you engage in appropriate treatment and support.
Sentencing purposes
40The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community and I have already referred to some of these sentencing principles.
41I take into account the guidelines referred to in s5 of the Sentencing Act where relevant in your case. I also take into account the principles of parsimony and proportionality. Further, I have taken into account the general sentencing landscape for such offending and also the comparable cases relied upon by your counsel, noting however that each case, of course, is unique.
42Your Counsel concedes that the offending is serious and demands a term of imprisonment. This is an appropriate concession and in all the circumstances I agree that the only just and appropriate sentence in your case is one involving an immediate term of imprisonment. Both Counsels submit that in your case a combination sentence is within range.
43I have come to the conclusion that a combination sentence can meet all the relevant sentencing purposes including the punitive and deterrent aspects. You were assessed for an order and assessed as suitable. The Court of Appeal in the often-quoted case of Boulton stated:
'Even in cases of objectively grave criminal conduct, the court may conclude that some or all of the punitive deterrent and denunciatory purposes of sentencing can be sufficiently achieved by a short term of imprisonment if coupled with the CCO of lengthy duration, with conditions tailored to the offender's circumstances and the causes of the offending, directed at rehabilitative purposes.' [11]
[11] Boulton v The Queen - [2014] VSCA 342
44Synthesising all matters, Mr Jam, you are convicted and sentenced as follows:
Sentence
45On the Charge of Armed Robbery, you are convicted and sentenced to a term of nine months' imprisonment, and you are placed on a Community Corrections Order for a duration of 16 months.
46The conditions are as follows: Supervision; work, and I am setting a period, Counsel, of 60 hours. I am offsetting that entire period against treatment because largely the Community Corrections Order is obviously a punishment each day that it is on foot, but he has also served a period of nine months, so I have factored that in.
47Treatment for drugs; Treatment for alcohol, treatment programs, and I also adopt the recommendation which I consider to be quite sensible of Corrections, for Judicial Monitoring and I propose to have Mr Jam appear before the court for monitoring and I will come to the date in a moment.
48Pursuant to s18 I declare that 249 days as been served. Pursuant to s6AAA, I can indicate that had Mr Jam not pleaded guilty, I would have sentenced him to a period of some two years and four months imprisonment with a non-parole period of one year and four months, and in respect of the compensation order, which is unopposed, I make in the terms that are sought.
49Now, in terms of the Community Corrections Order, given that Mr Jam appears online, I am going to go through all of the conditions and then the order will be sent through to counsel but I will do it in detail now to obtain his consent. So just give me a moment please. Counsel is there anything outstanding aside from going through this process that I have not dealt with. It is in accordance with the sentence indication provided. Any other matters that I need to deal with?
50MR MOHAMMED: No, Your Honour.
51MR TOM: No, Your Honour.
52HER HONOUR: Mr Jam, are you listening?
53OFFENDER: Yeah, I'm listening, Your Honour.
54HER HONOUR: All right, thank you. The conditions of the Community Corrections Order. I have included additional conditions, right, and you have heard what they are. They are supervision, and this is for the period of the 16 months, right, 16 months commences upon your release. You have probably got, you have done a bit over eight months now, you have got nine months in total to serve, so you have got a short period left on your sentence. One you are released, that is when the Community Corrections Order commences, so 16 months from that day, do you understand?
55OFFENDER: Yep, I understand.
56HER HONOUR: The additional conditions that I have imposed are supervision, work, and that is 60 hours, but I have offset that against treatment, so if you do treatment it can count towards your work. Treatment for drugs, treatment for alcohol and treatment in respect of programs, also judicial monitoring.
57What that means is you are going to have to attend before me. Often that is done online and you can be with your Corrections worker at the time or you can come to court, but you must attend on that occasion, and what happens, it is quite informal, but I am updated and I am told about how you are going, and Mr Jam, what I expect to be told is you are seizing this opportunity and that is what it is in many ways. Do you understand?
58OFFENDER: Yeah, I understand.
59HER HONOUR: Okay. So, they are the additional conditions. As you probably know there are core conditions that apply to each Corrections order and they are as follows, so these are also conditions. You must report to and receive visits from Corrections during the order. You must report to Corrections and that is at Sunshine Corrections within two clear working days after the order commences. So, once you are released, within two days you have to go to Sunshine Corrections. You know where they are?
60OFFENDER: Yeah, I know where it is, yes.
61HER HONOUR: You must notify Corrections of any change of address or employment within two clear working days. You must not leave Victoria except with the permission of Corrections. You must comply with any direction given by Corrections that is necessary to ensure that you comply with the order.
62Now, do you understand the conditions that I am imposing on the order?
63OFFENDER: Yes, I do, yes.
64HER HONOUR: Okay. You can breach the order by either: (1) Not complying with the conditions; so not following what Corrections are asking of you; (2) Committing an indictable offence punishable by imprisonment while that order is on foot. So, either way, you can breach it. Do you understand?
65OFFENDER: Yes, I understand.
66HER HONOUR: If you breach an order, then consequently you can come back before this court, and I will deal with you for both the breach and then I also have the power to resentence you on the original offending.
67Now, understanding what the conditions are, understanding how you could breach the order and the consequences of the breach, do you consent to the making of the order?
68OFFENDER: Yes, I do consent.
69HER HONOUR: All right, thank you. Counsel, do you consider I need to do anything further. I am going to leave the link on actually for a couple of minutes, and you might be able to also speak to Mr Jam in case that was not clear, but for our purposes and that is for the purposes of his consent, are you both content with that?
70MR MOHAMMED: Yes, Your Honour.
71MR TOM: Yes, Your Honour.
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