Director of Public Prosecutions v Joud
[2023] VCC 320
•7 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CR-22-01387
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Malek JOUD |
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JUDGE: | HIS HONOUR JUDGE MOGLIA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2022, 2 March 2023 | |
DATE OF SENTENCE: | 7 March 2023 | |
CASE MAY BE CITED AS: | DPP v Joud | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 320 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentence – plea of guilty – sentence appeals from Magistrates’ Court
Catchwords: Intentionally causing injury to prison officer on duty – sentence appeals – intentionally causing injury – robbery – dangerous driving – 23 years old – unprovoked violence – no causal link of mental impairment despite significant psychiatric history – objectively very grave – high moral culpability – Category 1 offence – general and specific deterrence.
Legislation Cited: Crimes Act 1958 (VIC); Sentencing Act 1991 (VIC).
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Brown (aka Davis) v The Queen [2020] VSCA 60; De Castres v R [2011] VSCA 377; R v Verdins (2007) 16 VR 269.
Sentence: Total effective sentence across indictment and appeal matters 4 years and 4 moths; non-parole period 2 years, 3 months; 524 days reckoned as already served; 6AAA: 5 years and 6 months and non-parole period 3 years, 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | J. Goetz | OPP |
| For the Accused | K. Hartman | VLA Melbourne |
HIS HONOUR:
1Malek Joud, you have pleaded guilty to intentionally causing injury on indictment (maximum penalty 10 years), relating to the events of 9 December 2021.
2You have also pleaded guilty to charges on appeal from the Magistrates’ Court:
(a) On appeal AP-22-0860:
Charge 1 - intentionally causing injury (maximum penalty 10 years);
Charge 3 - robbery (maximum penalty 15 years); and
Charge 5 - assault with a weapon (maximum penalty 2 years) all occurring on 16 November 2021.
(b) On appeal AP-22-0861:
Charge 1 - carrying a dangerous article (maximum penalty 6 months);
Charge 3 - assault by kicking (maximum penalty 2 years);
Charge 6 - theft (maximum penalty 10 years) all occurring in August 2019;
Charges 14 and 19 - driving in a dangerous manner (maximum penalty 2 years, minimum disqualification period 6 months) both occurring on 18 October 2020; and
Charge 24 - breach of community correction order imposed on 23 December 2020 (maximum penalty 3 months).
Sentence appeal AP-22-0861
3On 2 August 2019, you had a baton with you, which is a dangerous article, at Flinders Street station. You waved it around unsafely in the presence of other people at the station (Charge 1).
4On 6 August 2019 at about 11 pm, after having had an argument with him some time before hand, you approached Mohammed Khan where he was sitting near the corner of Elizabeth and Flinders Street. Without provocation you assaulted him by kicking him in the head (Charge 3).
5On 12 August 2019 at about 11 pm, you went to the Coles supermarket on Spencer Street and stole about $300 worth of food by putting it into a trolley and leaving without paying (Charge 6).
6On 18 October 2020 at about 3:30 am, you were driving a car dangerously, swerving between lanes on the Tullamarine Freeway, Airport West. Police tried to pull you over and after indicating you would do so, you then drove off. They followed you all the way through Citylink and onto the Monash Freeway, where they attempted to stop you, using tire deflation devices, which you avoided. They stopped pursuing you. At the time, you were the only one in the car, you were not displaying L-plates as required, you were on bail with conditions that you not drive and that you observe a curfew at night (Charge 14).
7Soon afterwards at about 4.15am, you were driving dangerously on the Princes Freeway east-bound at Nar Nar Goon. You approached a Covid checkpoint in a 40kph zone where there were signs advising drivers to stop and bollards to divert vehicles into various lanes so that police could check drivers’ licences. A police officer was on foot on the road directing traffic into applicable lanes. You ignored his directions, continued driving and collided with a number of bollards before continuing on (Charge 19).
8Later that morning, at about 7.20am, police found you asleep in the vehicle on the side of the freeway west-bound at Pakenham.
9You pleaded guilty to these charges at Sunshine Magistrates Court on 23 December 2020 and were placed on a CCO for 15 months including conditions requiring treatment for drug abuse and your mental health, and programs, noting you had been on remand for 65 days.
10You breached that CCO by showing up to your first appointment 8 days late, not notifying Corrections about a change of address or employment and not attending several appointments in January and February 2021, including after a warning (Charge 24).
Sentence appeal AP-22-0860
11On Tuesday 16 November 2021 at about 3:30 am, you were talking to others near the corner of Flinders Street and Elizabeth Street. The victim, Mr Gebretsadik, walked past your group and looked in your direction. You took afront and yelled at him, “come here boy”. He walked off and into the underpass towards the Yarra River. You followed him and as he emerged at the under end, on the steps close to the river, you attacked him without provocation. You punched him to the stomach and to the head, and when he fell to the ground, you picked him up and slammed him into the steps. You held him in a headlock for more than a minute while he was kneeling on the steps. You released him and stood over him yelling at him while pointing your finger into his face. You picked up his phone that he had dropped and threw it at him. You then kicked him in the head and slapped him (Charge 1).
12During that violent attack, you yelled at him to hand over his backpack, which he did (Charge 3).
13He then ran back into the underpass to get away from you. You kept his phone and backpack. As he ran, you shouted after him that he better come back or you would stab him.
14He took refuge in a pizza bar on Elizabeth Street and you returned to your group where you put his bag on the ground with your belongings.
15As if you hadn’t done enough, you then entered the pizza bar, removed a knife from the bag you carried, threatened him with the knife, forcing him to retreat into the kitchen (Charge 5).
16You remained in the restaurant, screaming at him through the doorway. The restaurant manager called police and then told you to leave. You left, but not for long. You soon returned with boxing gloves and challenged the victim to fight you, before leaving again.
17You picked up your things and the victims backpack and walked away along Elizabeth Street, stopping at the restaurant yet again to shout at the victim to come and get his bag from you. You walked off but the police arrested you nearby and retrieved the victim’s bag and phone.
18Police interviewed you and you made full admissions, but not, I find, out of any sense of contrition. You expressed pride in your violence. You told them you wanted to bash him more, and if you had have knocked him out, he would have “gone for a swim”.
19You remained in custody until you were sentenced by a Magistrate for the offences in both of these appeals on 4 August 2022. You filed appeals in both matters on 11 August 2022 and have remained in custody throughout.
Offending on Indictment CR-22-01387
20On 9 December 2021, you were on remand at Port Phillip Prison for the offences I have just described.
21At about 7.15pm that evening, Prison Officer Jenkinson was conducting his final round for the day of the exercise yard at your unit. Shortly after he entered the exercise yard you followed and threw a plastic bag containing bread over the fence before approaching him.
22For an unknown reason, you then began to assault Mr Jenkinson. You punched him several times to the face and shaped up to him. Having cornered him in the yard, you kept pushing and kicking him until he fell to the ground where you continued to kick him to the head. He activated his duress alarm before losing consciousness. You walked off.
23As two other Prison Officers attended the yard, you walked back inside. On your way, you picked up Jenkinson’s lanyard and radio, spoke into the radio before discarding it and placed the lanyard around your neck.
24Mr Jenkinson was taken to the Royal Melbourne Hospital where he was treated for fractures to the bones around his left eye, abrasions to his scalp and bruising.
25He has made no Victim impact statement.
26Police were called to investigate but you were not interviewed.
27You offered to plead guilty on 18 May 2022, soon after receiving the brief of evidence and some legal advice.
28On 4 August 2022, when you were sentenced for the summary matters I have outlined, the magistrate committed you in relation to this prison assault.
29You pleaded guilty in this matter at an early stage and your sentence will be reduced because of your acceptance of responsibility, your willingness to cooperate with processes of the justice system and as a recognition that your plea saves the community the time and expense of a trial. I note that the conditions in custody, especially on remand, have been more onerous due to COVID related restrictions.
30I also note that since the assault on the prison officer and due to what I was told by your counsel to be behavioural concerns, you have been in isolation and have had little contact with other prisoners and no engagement in programs or work. This has made your time in custody harder, and I will take this into account when calculating your sentence.
Plea material
31During your plea hearing, you relied on a Mental Health Advice and Response Service Confidential Mental Health Summary dated 17 November 2021 (Exhibit 1), Psychiatric reports of Dr Nina Zimmerman dated 30 July 2022 (Exhibit 2) and 26 October 2022 (Exhibit 3) and Medical Records from the Royal Melbourne Hospital up to 28 August 2020 (Exhibit 4).
32Following the first hearing of your plea, the Court requested a psychological assessment of you from Forensicare and Dr Sophie Reeves provided a report dated 22 February 2023 (Exhibit A).
33The Reeves report was provided to your lawyers and the prosecution. I was told that, having received further medical records, you obtained a further updated report from Dr Zimmerman, but do not seek to rely on it. In fact, having considered the new records, Dr Zimmerman’s further update and the Reeves report, you no longer relied upon any opinion in the Zimmerman reports. So, I will not rely on any opinion expressed in Exhibits 2 or 3 in sentencing you.
Personal circumstances
34You are now 23 years old. You are the oldest of two boys born to your parents. When your parents finally separated after a tempestuous relationship when you were about 12 years old, you went to live with your father. He re-partnered and you have four younger siblings in that home. Your little brother remained with your mother and she has two older children from a previous relationship. You told Dr Reeves that you were unimpressed by your mother’s current relationship and made derogatory claims about her morals. You claim to have a good relationship with your father, which he confirmed.
35You told Dr Reeves that you were not physically or sexually abused during your upbringing. However, you recounted an event in 2018 when your mother had you chained up in her garage for two to five days when you were mentally unstable and violent. You said the incident was reported to police, but you did not wish to press charges.
36You reported disrupted schooling, attending a number of primary schools due to separations and reconciliations between your parents, and two high schools until year 9. You said you could have done better at school, but due to smoking cannabis and not making an effort you were only an average student.
37After leaving school at the year 10 stage, you worked with your father in his concreting business. You say you want to return to that work after your release.
38Your counsel considered but did not rely on the considerations set out in the case of Bugmy.[1]
[1] Bugmy v The Queen (2013) 249 CLR 571.
39You said you started smoking cannabis at age 14 and that increased to about four grams per day until your remand in 2021. You said at about age 17 you experimented with substances such as methamphetamine, MDMA and hallucinogens. You blame them for a number of psychotic and manic episodes.
40You have had brief inpatient admissions to Orygen Health in 2018 and 2019 due to paranoid and grandiose delusions. Your admissions were associated with violent and threatening behaviour, including in the context of you ceasing to take your prescribed mood-stabilisers and antipsychotics and while using MDMA and methamphetamines. You were aggressive and threatening to medical staff, requiring shackles and on one occasion sedation. You were diagnosed with Bipolar Disorder and drug related mania and psychosis.
41You have a relatively short criminal history. In 2019, when you turned 20, you were convicted and fined for making a false report to police and other dishonesty offences, possessing drugs and a weapon, and offending while on bail. You were also placed on a bond with conviction for possessing drugs, offending on bail and breaching a condition of bail. You breached that bond. In 2020 at age 21, at the same time as being sentenced for the offences in the appeal currently before me, you were convicted and fined for breaching a family violence safety notice, offending while on bail, failing to answer bail, breaching a condition of bail and minor driving charges.
42Speaking of your younger years, you have previously said that you engaged in animal cruelty on a number of occasions, but when speaking with Dr Reeves said that you had no history of violence and that you liked animals, had empathy for them and have not engaged in any cruelty towards them.
43You did not present with any manic symptoms during your interview with Dr Reeves and you do not rely on any diagnosed mental illness such as to trigger the application of the principles set out in the case of Verdins.[2]
[2] R v Verdins (2007) 16 VR 269.
44Dr Reeves assessed your risk of further violent offending, relying in part on the Historical Clinical Risk-20 (HCR-20-V3). Your history, including your mental health history was taken into account. Dr Reeves regarded your belief that you do not require medication as significant in assessing whether you will succeed in future treatment. Having taken into account your father’s support, including his providing a home and employment, Dr Reeves nevertheless concluded that your risk of further violence is high, which I accept.
45I also accept Dr Reeves’ other conclusions, although she found it difficult to assess accurately your personality functioning and that your profile is unlikely to be an accurate one given the high degree of defensiveness in your responses during testing. Dr Reeves noted you tailored at least one answer to her questions depending on whether she was going to record it, and that your account of your personal history was at times different from your father’s narrative. I also note that your account of animal cruelty is inconsistent and that your report of your experience of schooling and whether you were violent was variable.
46Nevertheless, Dr Reeves stated that while you display characteristics of “callousness, grandiosity and emotional detachment” you fell within the low range of the Psychopathy Checklist (PCL-R). Further, while you possess narcissistic and antisocial personality traits such as feelings of superiority towards others and compromised empathic functioning, your presentation does not align with a formal diagnosis of Anti-Social Personality Disorder.
47Dr Reeves states that when you are feeling mentally unwell, your manic symptoms are a significant driving factor in your violence alongside your drug use.
48She recommends that psychoeducation accompanied by mental illness training for your family may assist in reducing your risk of future violent offending. This would assist relapse prevention tools that help you to identify and manage high risk situations. She also recommended ongoing treatment and monitoring through your GP.
Sentencing issues
49I regard your violent assault upon Mr Gebretsadik and then the prison officer Mr Jenkinson to be the most serious aspects of your combined case. That is not to understate the seriousness of your driving in October 2020 or the unprovoked kick to Mr Khan’s head.
50Your unprovoked violence against Mr Gebretsadik is nothing short of disturbing. It was a sustained, public display of the worst kind. Your comments to police afterward that you intended to cause him worse harm are a cause of very significant disquiet. Absent any reliance on expert opinion that an impaired mental state was causally related to your acts, I am left to sentence you on the basis that you did what you did deliberately and under the influence of your drug use.
51As for your attack on Mr Jenkinson, intentionally causing injury to a prison officer is a Category 1 offence under section 3(1)(cc)(i) of the Sentencing Act 1991, which requires the imposition of a minimum of 6 months imprisonment unless there are special reasons under section 10A not to do so. Your counsel conceded that there were no such special reasons in this case.
52Your assault on the prison guard is objectively very grave. It was unprovoked, you persisted in it, you punched and kicked him, when he fell to the ground you continued to kick him to the head, he lost consciousness, and he suffered fractured facial bones as a result. Your moral culpability for your actions was high, noting that you eschewed any reliance on the principles in Verdins, and you were on remand at the time for similar violence.
53In DeCastres,[3] the Court of Appeal commented that prison violence must be deterred and that the law of the jungle must not be permitted to take hold. While that was a case of violence against another prisoner, the same principles apply when it comes to assaults against prison staff. This is consistent with the introduction of provisions mandating a minimum term of imprisonment.
[3] De Castres v R [2011] VSCA 377.
54These circumstances in both incidents call for a stern sentence to be imposed.
55Having said this, you do not have a lengthy criminal history and you are young. You were 20 and 21 at the time of the offending in Appeal AP-22-0860 and 22 at the time of the assaults on Mr Gebretsadik and Mr Jenkinson. In these circumstances, I aim to promote your rehabilitation as much as I am able by allowing for your parole earlier than I would have permitted if you were older or had a more serious history.
56In punishing you for these offences, particularly those at the end of 2021, I intend to deter you specifically from further like offending. Your violence was not a one-off situation. Nor was it readily explained by the circumstances in which it occurred. You have not given a consistent or convincing explanation for why you acted in these ways and so I must tailor your punishment to leave you in no doubt that such offending will attract increasingly dire consequences for you.
57While it does not come to the fore as a primary purpose for sentence, I have taken into account the need to protect the community from you and do so by imposing terms of imprisonment. The two attacks at the end of 2021 are too serious to be dealt with by anything short of this.
58You have been in custody since 16 November 2021. The COVID-19 pandemic has rendered this time in custody more burdensome. You have been subjected to 23-hour lockdowns, restricted movements, reduced access to rehabilitative and vocational programs, and limited access to treatment. You have had little or no in-person contact with your family. I accept that you will continue to face difficulties in participating in programs or engaging in any treatment for drug addiction or mental health whilst under such custodial conditions. I will moderate your sentence accordingly.[4]
[4] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].
59I have aimed to reduce your sentence in a way that is readily apparent due to your guilty plea during COVD, when the business of the Court is sorely hampered by delays in getting matters to trial. Your plea has assisted to relieve this burden on the community and should be recognised.
60I regard your prospects for rehabilitation to be guarded. Your lack of insight into your drug use and mental health needs and your offending are concerning. Your regard, or lack thereof, about others in your life, your sense of superiority, your lack of compliance with medical and other treatment, as well as your belief, in many respects, that you do not need help all suggest that you have a way to go before you could be said to have genuinely begun the path towards change. In this respect, I note the uncontested assessment that your risk of future violence is high.
61I have arrived at your total sentence by ordering concurrency between the individual sentences and as between different incidents where appropriate so as to arrive at a total that reflects the totality of your offending.
62On the indictment N10487805 in CR-22-01387, I sentence you as follows:
On charge 1 (intentional cause injury) – 2 years 9 months.
63On appeal AP-22-0861, I sentence you as follows:
(a) On charge 1 (possessing a dangerous article) – convicted and discharged;
On charge 3 (assault by kicking) – 2 months;
On charge 6 (theft) – convicted and discharged;
On charge 14 (dangerous driving) – 1 month; and
On charge 19 (dangerous driving) – 1 month.
On the breach of CCO – convicted and discharged.
(b) The sentence imposed on charge 14 is to be served cumulatively upon the sentence on charge 3, making a total of 3 months.
(c) I note that 65 days on remand were considered but not declared as pre-sentence detention by the Magistrate when imposing the CCO for these offences on 23 December 2020, which period is available now to be declared because I am resentencing you on those charges.
(d) I direct that the sentence imposed on appeal AP-22-0861 be served cumulatively upon the sentences imposed on appeal AP-22-0860 and upon the sentence imposed on indictment in CR-22-01387.
(e) On charges 14 & 19, I cancel any driver licence that you held and disqualify you from obtaining another for a period of 1 year. That period is to be taken as having operated from 23 December 2020 and I note that 1 year period is now complete.
64On appeal AP-22-0860, I sentence you as follows:
(a) On charge 1 (intentionally causing injury) and charge 3 (robbery) – 2 years (aggregate);
(b) On charge 5 (assault with weapon) – 12 months.
(c) On charge 5, I order that the weapon be forfeited and disposed.
(d) Six months of the sentence on charge 5 are to be served cumulatively upon the aggregate sentence on charge 1 & 5, making a total sentence on this appeal of 2 years 6 months.
(e) I order that 1 year 3 months of the sentence imposed in this appeal be served cumulatively upon the sentence imposed in indictment in CR-22-01387.
65The total effective sentence taking into account the indictment and both summary matters is 4 years 3 months.
66I fix a non-parole period of 2 years 3 months.
67I declare that you have served 542 days (consisting of 66 days considered in appeal AP-22-0861, which the parties agree is correct (cf 65 days) and 476 days being 16 November 2021 until but not including today) and I direct that this be reckoned as a period already served under this sentence.
68In accordance with section 6AAA of the Sentencing Act 1991 (VIC), notwithstanding the artificiality of it given the complex nature of this case, but for your plea of guilty I would have imposed 5 years and 6 months and fixed a non-parole period of 3 years 6 months.
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