Director of Public Prosecutions v Khawari

[2015] VCC 1134

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00951

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASGHAR KHAWARI

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2015
DATE OF SENTENCE:	19 August 2015
CASE MAY BE CITED AS:	DPP v Khawari
MEDIUM NEUTRAL CITATION:	[2015] VCC 1134

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
For the Offender	Ms N. Stewart	NS Legal

HIS HONOUR: 

1Asghar Khawari, you have pleaded guilty to one count of armed robbery contrary to s.75A(1) of the Crimes Act 1958. The maximum penalty for that offence is 25 years' imprisonment.

2You pleaded guilty at the committal case conference on 28 May 2015 and I have taken your early plea into account in your favour in mitigation of sentence. 

3You have no prior convictions and there are no outstanding charges in your case.

4A summary of prosecution opening was read to the court and tendered in evidence and your offending may be summarized as follows -

5On 18 January 2015, the victim of your offending responded to an advertisement on Gumtree and arranged to meet your co-offender, Mr Ahmed Razi, to purchase an iPhone in Narre Warren South.  The victim arrived at the appointed location at approximately 5 pm. 

6At approximately 5.48 pm you and your co-offender approached the victim who was seated in his vehicle.  Your co-offender opened the rear driver's side door and entered the vehicle.  He pulled out a knife and threatened the victim with it.  He said to him, "Give me everything."  The victim complied.  You were standing at the front passenger door and the victim passed a number of his belongings to you including an iPad, an iPhone and $490 in cash.  You and your co-offender then left the area and the victim pursued you.  The matter was reported to police.  Your co-offender was arrested and interviewed on 20 January 2015 and denied any involvement in the offending.

7On 4 March 2015, you voluntarily attended at the Dandenong Police Station and were interviewed by police and made a number of admissions in relation

to your offending, including explaining how the cash had been spent by you and your co-offender at the brothel.  Following the interview with police you were charged and released on bail.

8Offending of this type is prevalent and serious and the sentence that I impose must be calculated to deter you and others from offending in this way.  Furthermore, the community must be protected from persons who offend in this manner and you must be punished for what you have done.

9I now turn to your personal circumstances.  You were born on 7 January 1996 in Pakistan.  Your family had migrated to that country from Afghanistan.  You are one of six children.  Your parents are Muslim and migrated to Australia when you were nine years of age. 

10You completed the Victorian Certificate of Applied Learning at Hallam Secondary College in 2014 and since that time you have been in full employment as a painter, which is the occupation pursued by your father.  You work six days a week between the hours of 7 am and 4 pm and are currently in receipt of $1100 per week net.

11Your counsel submitted on your behalf that you wanted to join the Victoria Police Force and you gave sworn evidence yourself to this effect.  You also gave evidence as to the circumstances that you became involved in with this offending and stated that when the offence was being carried out you were threatened by your co-offender.

12I have received in evidence a psychological report of Ms Hannah Chapman, a registered psychologist, in relation to your background and stating that she has seen you on six occasions since the offending occurred in order to assist you with strategies to manage stress and anxiety consequent upon your offending and being charged with this offence.

13Your family do not know about your offending, and your counsel submitted that you are too embarrassed to tell them, so that means that you have had to deal with the pressure of this matter yourself.  

14You do not use drugs or alcohol and it is plain from your appearance in court that you are a young man who appears to have some clear potential.

15

Your co-offender was 17 years of age at the time of the offending.  He pleaded guilty to a number of charges in the Melbourne Children's Court on

24 June 2015.  Those charges included charges that you are not charged with, including intentionally destroying property, contravening a family violence intervention order, obtaining property by deception and extortion with a threat to kill.  It would appear from his criminal history that he has offended on occasions other than the subject of the charge before this court.  He was released, without conviction, on a youth supervision order for a period of 12 months.

16Whilst, as I have observed, general deterrence and specific deterrence are important sentencing considerations in your case, nevertheless, as the well-established sentencing principles make clear, for a young offender such as yourself, rehabilitation is the principal sentencing consideration that I must have regard to.  Whilst the offending in question is serious in nature, in my opinion, the purposes for which this sentence is to be imposed would be best achieved by me not proceeding to a conviction in your case.  It is plain that if you do wish to join the Victoria Police, the fact that you have not been convicted of this offence would be taken into account in your favour in the application process.  Even if you do not pursue your current stated career aim, your rehabilitation and future contribution to the community will be best served by you not being convicted. 

17Having regard to your close family circumstances, your stable employment, which involves you working six days per week, the absence of drug and alcohol issues in your case and the fact that you have sought ongoing counselling and psychological treatment and continue to do so, in my opinion, it is not necessary for me to release you on a community correction order. 

18In all the circumstances, I am satisfied that this is an exceptional case which would justify me releasing you on an adjournment, without conviction, to be of good behaviour.

19In the result, the sentence of the court is as follows –

20In relation to the charge of armed robbery, you are released, without conviction, for a period of two years on condition that you are of good behaviour and that you appear before the court when called upon.  I further order that you pay the sum of $500 to the court fund within one month of the making of this order.

21MS STEWART:  Yes, thank you, Your Honour.  As Your Honour pleases.

22MS MALBABIC:  As Your Honour pleases.

23HER HONOUR:  Yes, thank you.  You are required to pay $500 to the court fund, Mr Khawari.  The court will be in touch with you.  The Registrar will send a letter to your home address.  Now it may be that this matter will come to the attention of your family.  If it does, you will have to deal with it.  But the court will write to you at your home address, advising you how you can pay the $500 to the court fund.  That is a condition of the bond that you make that payment, do you understand?

24OFFENDER:  Yes.

25HIS HONOUR:  Mr Khawari, you will have to provide a forensic sample to the police at the Dandenong Police Station within 28 days of today.  The police can use reasonable force to obtain that sample, but it simply involves the placing of a swab inside your mouth and they take a sample of your DNA, all right?

26OFFENDER:  Yes.

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