Director of Public Prosecutions v Khoder
[2013] VCC 650
•10 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 00192 of 2013
| DPP |
| V |
| MOHAMMED KHODER |
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JUDGE: | M.P. Bourke | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 10 May 2013 | |
CASE MAY BE CITED AS: | DPP v. Khoder | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 650 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the CrownPlaintiff | ||
| For the AccusedDefendant |
HIS HONOUR:
1 Mohammed Khoder, you are to be sentenced for four counts of armed robbery and one count of attempted armed robbery. The maximum sentences are 25 years' imprisonment for armed robbery and 20 years' imprisonment for attempted armed robbery.
2 You pleaded guilty before me on 17 April. When interviewed by police on 3 May 2012 you exercised your right to silence. You entered pleas of guilty to these matters during committal proceedings in early February this year. I bear in mind that negotiation led to other charges against you being withdrawn.
3 You receive the benefit of your pleas of guilty which were made at an early stage in the proceedings. That has facilitated the interests of justice. It has been estimated that a trial of you and co‑offenders on these charges would have run approximately eight weeks. Further, victims of your offences, particularly the armed robberies, have been spared the hardship of giving evidence.
4 At the plea hearings - on 17, 18 and 19 April - Mr Gilligan for the Crown tendered a written Crown opening, a DVD film of a number of armed robberies and victim impact statements of Terese Marangon, Lynne Hibbert, Jacqueline Hamilton, Helen Ellis, Slobodan Petrovski, Peter Thatcher, Norman Shaw, Dale Kallis and Paul Hodgson. The victims, Terese Marangon and Paul Hodgson were not victims of crimes you were involved in; the others were. Mr Gilligan also produced to me short written submissions on sentence; and another document, being an overview of high range armed robbery sentences in the Victorian Court of Appeal.
5 Ms Hartnett, for you, tendered a number of certificates related to educational courses and rehabilitation programs in custody. She also tendered drug screen testing results, also from prison.
6 The circumstances of your offending and that of your co‑offenders is comprehensively described in the Crown opening, which is tendered as Exhibit A. My own summary may therefore be shorter.
7 A police operation named the Sampson Task Force ran between November 2011 and May 2012. It was directed at armed robberies committed in the north‑western suburbs and targeting gaming venues such as sporting clubs and hotels. Investigation and surveillance included telephone intercepts, tracking device data, physical surveillance, examination of call charge records and cell tower locations, and listening device surveillance.
8 Relevant to your proceedings, the operation has led to the arrest and charging of you and five co‑offenders. Those co‑offenders include your co‑accused in these plea proceedings, Ariki Julian, Jessica Smith and another man named Mohammed Khoder. That Mohammed Khoder is your cousin, now aged 30, having been born on 15 December 1982. You are aged 25, having been born on 12 August 1987.
9 The plea hearing for those co‑offenders also ran on 17 to 19 April. Smith and the other man Mohammed Khoder were sentenced by me on 26 April. I announced a sentence of Ariki Julian yesterday, that sentence has not entered the court records. There is a need to correct an error in the sentence announced; that will happen on Monday 13 May.
10 Broadly described, the offending includes the theft of motor vehicles and firearms and armed robberies or attempted armed robberies at seven venues; one was robbed twice.
11 Mohammed Khoder you were involved in four of these armed robberies, between July and October 2011, and the attempt which occurred on 31 October at the Glenroy Bowls Club. Thwarted in that, you, Julian and another man robbed another venue in Lalor on the same night.
12 Your role was that of driver. Accordingly, you were not Ariki Julian's armed accomplice in the attempt at Glenroy, when the two other men confronted by a patron just within the entrance ran away and back to the safety of the car where you were waiting.
13 I draw no distinction in the roles of you and co‑offenders in the armed robberies and attempt. It was not argued that I should.
14 I have carefully read the tendered victim impact statements. Particularly the staff and patrons of the venues robbed have suffered very considerable impact. They have suffered fear, anxiety, loss of confidence and a sense of security. There have been problems sleeping and with family relationships. Work and social life has been affected. Some take medication and receive ongoing psychiatric or psychological treatment for conditions such as post‑traumatic stress disorder.
15 Staff at the Lalor Bowls Club were victims of two armed robberies committed upon them by you. One person, Lynne Hibbert, was a primary victim of both. She was also the victim of a third robbery over the period, not attributed to you. The man who confronted the two men attempting to rob the Glenroy Bowls Club, Norman Shaw, carries the ongoing and vivid memory of having the firearm pointed at his chest. As I have said, and unsurprisingly, the victim impact here has been very considerable and affects a number of people. My description of it has not been complete. I must and shall take it into account in sentencing you.
16 You are now aged 25 years and are serving a prison sentence imposed by Judge Howie on 30 March 2012 for armed robbery and by Judge Hogan on 28 August 2012 for offences including unlawful imprisonment and recklessly causing injury. You are presently placed at Port Philip Prison.
17 Your parents came here from Lebanon in the 1990s. You were born here and are the youngest of five children. Your parents separated when you were aged six to seven years. Your father served a long sentence for sexual offending, including against members of your family. He has since his release passed away. There was no real reunion with him. Three older siblings have returned to Lebanon.
18 Your mother raised the family, I was told, with little support from your extended family. School was unsuccessful, and you were expelled from Fawkner Secondary College during year 9. Since then you have worked in unskilled employment; for example, in concreting and at Hungry Jack's. You began using cannabis at 12 years and then moved to other drugs, particularly methylamphetamine, at 18 years. You were in a situation of consistent drug use when committing these offences. Your criminal history reflects that disadvantaged and dysfunctional background.
19 There are a large number of court appearances between June 2001, when you were aged 13, and September 2012. Some are matters subsequent to this offending. As I recollect, Ms Hartnett, tendered or made available to me an updated LEAP or criminal history document. In your history there are offences of violence against property, of dishonesty, firearms and drug offences. This includes that, on 30 March 2012, Judge Howie imposed a sentence of five years with a minium of three years for armed robbery. There are earlier Children's Court appearances for robbery and armed robbery.
20 Ms Hartnett referred me to parts of psychological evidence placed before Judge Howie. That evidence stated conditions of polysubstance abuse disorder and depressed mood disorder. Your intelligence and cognitive functioning are seen to be normal. You are not seen to be of an inherently antisocial or criminal disposition. Since your imprisonment in November of 2011 you have taken part in educational and rehabilitation programs and drug testing presents you as drug‑free.
21 Your offending was repetitive and extremely serious. I have earlier stated the very considerable victim impact statements. I repeat the comments made in my sentence of a co‑offender, the other man Mohammed Khoder, who was involved in one of the robberies:
"Armed robbery is one of the most serious crimes, attracting a maximum sentence of 25 years' imprisonment. It attacks good order and the safety and wellbeing of people placed, usually through no choice, in its way."
I should add this; that Mr Gilligan has, understandably, pointed out the adverse feature of your second armed robbery, on 30 October 2011, upon the Lalor Bowls Club, which followed on the same night as the attempted robbery in Glenroy. You had robbed the Lalor venue on 30 July. Lynne Hibbert was the primary victim on both occasions.
22 It is clear that the sentencing considerations I have raised in sentencing your co‑offenders, particularly Ariki Julian - deterrence, denunciation and moral culpability and the need for proportionate punishment - are important and must be emphasised. In your sentence a substantial period of imprisonment is necessary.
The factors which should moderate that sentence are as follows:
1) Your plea of guilty.
2) Your relative youth. Optimism is difficult, however I am obliged and do not utterly discount your prospects for rehabilitation.
3) Your dysfunctional personal history and circumstances.
4) The principle of totality must be applied.
23 I intend to impose a sentence reflecting a proper total punishment for your offending over the period from late December 2010 to November 2011, bearing in mind the sentences imposed by Judge Howie and Judge Hogan; I have read both reasons for sentences. This applies to my head sentence and minimum term. Particularly I must impose a new minimum term under s.14 of the Sentencing Act applicable to my sentence and the sentences of Judges Howie and Hogan.
24 I was not asked by either party to compare respectively the sentences of you and Julian and do not seek to do so other than to say that, in your case, the moderating circumstance of the need to apply the principles in R v. Verdins, which was applicable to the sentence of Julian, does not apply to you. As I have said, your sentence of imprisonment must be substantial and must meet the seriousness of your offences.
25 Stand up. Mohammed Khoder, I sentence you as follows. On charge 4, armed robbery, you are sentenced to four and a half years' imprisonment. On charge 6, armed robbery, you are sentenced to four and a half years' imprisonment. On charge 14, attempted armed robbery, you are sentenced to four years' imprisonment. On charge 15, armed robbery, you are sentenced to five years' imprisonment. On charge 18, armed robbery, you are sentenced to four and a half years' imprisonment.
26 I direct other than in accordance with the provisions of s.16(3)(c) and make orders for partial cumulation between the counts on this indictment in accordance with the principle of totality, I direct that six months of each of the sentences on charges 4, 6, 14 and 18 be served cumulatively on the sentence imposed for charge 15 and on each other. That is a total effective sentence of seven years.
27 I would propose to set a minimum term on that sentence and therefore, under s.14 of the Sentencing Act, I impose a new minimum term - that is, non‑parole period - of four years and nine months, beginning from today.
28 Just sit down for a moment. I want to make some things clear about what that means, particularly in terms of the earlier declared pre-sentence detentions. It is my intention and I direct that those earlier periods of pre‑sentence detention declared by Judges Howie and Hogan apply to this new non‑parole period. You could approach the arithmetic of it in another way; on my reckoning, if one starts the new non‑parole period from 30 March, the sentence of Judge Howie, it is a new non‑parole period of five years, 10 months and 10 days.
29 Debited against that, for want of a better description, must be the pre‑sentence detention of 17 days, declared by Judge Howie as I recollect, and 136 days declared by Judge Hogan. I think I have got that the right way round. No, Judge Hogan declared 17 days and Judge Howie declared 136 days; that is in accordance with what is stated in the sentencing reasons of Judge Hogan. It does not matter which way you state it, but I think there is a need when there has been past declared pre‑sentence detention to make it clear that it applies to a new non‑parole period. It does not matter whether you apply it starting from the day or from back then, I do not think.
30 Under s.6AAA, I indicate, doing the best I can, that my sentence, if you had not have pleaded guilty - just stand up for this - would have been a sentence of 10 years and I would have proposed a minimum term of eight years. I would have directed cumulation of - I see, yes. I have omitted to indicate what I direct about cumulation of the total effective sentence, my sentence of seven years upon the sentence imposed by Judge Hogan. I direct a cumulation period of two and a half years. I will go back to that to make it clear. I am sorry, I got it out of order.
31 Returning to s.6AAA, my sentence would have been 10 years. I would have proposed on that sentence an eight year minimum term, but that does not matter because two things would have occurred: I would have imposed, as I said, doing the best I can, a cumulation of three and a half years of my head sentence upon Judge Hogan's sentence and I would have set under s.14 a new minimum period of six and a half years. I suppose it pares down to this, that by pleading guilty you have created the opportunity for yourself of getting out of gaol over 18 months earlier than you would have otherwise, as I look at it.
I do not think I need to repeat the individual sentences, but after cumulation of six months of the sentences on charges 4, 6, 14 and 18 on the sentence for charge 15 and on the sentence for each of those counts there is a total effective sentence of seven years. I omitted to say that I direct that two and a half years of that sentence be served cumulatively upon the sentence that Judge Hogan imposed. This is not a part of my formal sentence, but I make the comment so that people have understanding of what I have intended. That seems to me to bring about a total head sentence of nine years. But perhaps more importantly to you, Mr Khoder, the new minimum term running from today is four years and nine months, and you will have the advantage of about 150 or so days of pre‑sentence detention.
HIS HONOUR: I do not think I have got any of that wrong, in terms of error. Do you know?
MR GILLIGAN: The head sentence will be nine and a half I think, Your Honour; seven plus the two and a half.
HIS HONOUR: Yes, you are right. It will be 10 in fact. Her sentence was seven and a half.
MR GILLIGAN: That is right, yes; seven and a half plus two and a half.
HIS HONOUR: Yes. My arithmetic has let me down again.
MR GILLIGAN: So that is 10.
HIS HONOUR: What it means is this, that you will have a change of parole in that period of time. It will be a long parole. I have given you the opportunity of early release but, conversely, you will be a long time on parole; and if you breach your parole, you will become one of those men who are rarely out of gaol through their 20s and 30s into their 40s. If you wish that for yourself, do not attempt to rehabilitate. Take a seat, please.
HIS HONOUR: What else do I need to do?
MR GILLIGAN: Compensation orders, Your Honour, and they are agreed to, but I hand those up for signature.
HIS HONOUR: All of these were not opposed, as a recollect, Ms Hartnett, the compensation orders.
MS HARTNETT: That is so, sir.
HIS HONOUR: Yesterday, Mr Gilligan, there was some thought of me having to amend by hand some of these orders. That does not come to be?
MR GILLIGAN: They are solely orders in relation to the prisoner here.
HIS HONOUR: I see. Yes.
MR GILLIGAN: The other orders my instructor forwarded by email to Your Honour's associate.
HIS HONOUR: That ultimately became the arrangement?
MR GILLIGAN: Yes.
HIS HONOUR: Thank you. What is the situation in relation to - for an example ‑ ‑ ‑
MR GILLIGAN: Not required, Your Honour. It is already on the database.
HIS HONOUR: It has been taken from the database?
MR GILLIGAN: Yes.
HIS HONOUR: All right. What else do I need to do?
MR GILLIGAN: Nothing, Your Honour.
HIS HONOUR: Just to clarify one thing. There was no s.18 to be declared on my sentence.
MR GILLIGAN: No. That is right.
HIS HONOUR: Thank you for your assistance.
MR GILLIGAN: If Your Honour please.
HIS HONOUR: Thank you for your assistance.
MS HARTNETT: Thank you, Your Honour.
HIS HONOUR: Mr Khoder can be taken into custody now.
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