Director of Public Prosecutions v Koohi
[2023] VCC 319
•7 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00056
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMIR KOOHI |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 & 7 March 2023 | |
DATE OF SENTENCE: | 7 March 2023 | |
CASE MAY BE CITED AS: | DPP v Koohi | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 319 | |
REASONS FOR SENTENCE
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Subject:Criminal law - sentence
Catchwords: Plea of guilty following sentence indication hearing – charges of common assault and use a carriage service to harass – offending occurs in context of an intimate personal relationship – drug and alcohol abuse at the time of offending – prior criminal history limited to one charge of criminal damage – youthful offender – strong family support – demonstrated work ethic – compliance with bail conditions over lengthy period - positive prospects of rehabilitation
Legislation Cited: Criminal Code Act 1995, s 474.17; Sentencing Act 1991
Cases Cited:Marrah v. R. [2014] VSCA 119; Worboyes v. The Queen [2021] VSCA 169; R. v. Mills (1998) 4 VR 235; Azzopardi v. The Queen (2011) 35 VR 43; Boulton v. The Queen [2014] VSCA 342
Sentence: On each Charge, a Community Correction Order made for two years, to be served concurrently
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N.M. Deltondo | Office of Public Prosecutions Victoria |
| For the Accused | Mr L.K. Barker | Theo Magazis and Associates |
HER HONOUR:
1Amir Koohi, following a sentence indication given by me, you have pleaded guilty to one charge of common law assault and one charge of using a carriage service to harass. The maximum penalty for the offence of common law assault is five years' imprisonment pursuant to s320 of the Crimes Act 1958 (Vic). The maximum penalty for using a carriage service to harass is five years' imprisonment pursuant to s474.17 of the Criminal Code Act 1995 (Cth).
2You have also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail, the maximum penalty for which is 30 penalty units or three months' imprisonment pursuant so s30B of the Bail Act 1977 (Vic).
3You were born in September 1999 and were between 20 - 21 years of age at the time of your offending. The victim of your offending was Cassie Moors[1], with whom you had commenced an intimate relationship in September 2019, after meeting through mutual friends. Ms Moors was 19 years old at the time of the offending.
[1]A pseudonym
4Your relationship with Ms Moors was positive at first, however, it had deteriorated by January 2020, marred by mutual drug abuse. The relationship became toxic. The offending that is the subject of these charges occurred during your relationship from January 2020 and continued until approximately June 2021, even though that relationship had ended earlier.
Summary of Offending
5I turn now to briefly summarise your offending. The circumstances of your offending are drawn from the summary of prosecution opening dated 6 March 2023, which is the agreed basis upon which you are to be sentenced.
Incident 1: May 2020 at Lorne
6
In May 2020, you and Ms Moors visited Lorne with friends. You were drinking heavily and began to behave aggressively towards Ms Moors. At first,
Ms Moors thought you were play fighting, but then realised you were angry. You came up behind her and placed your hands around her neck, in a choke hold, trapping her neck tightly to the point she could not breathe or escape. You eventually released her. She continued to feel dizzy, with pain in her neck and struggled to breathe. This conduct is forms part of Charge 1 – common law assault, which is a rolled-up charge reflecting six separate incidents.
7Later that evening, Ms Moors brought a plate of food into your room. You were on the opposite side of the bed, when you pushed the mattress at the complainant hitting her in the stomach and knocking her over. This incident also forms part of Charge 1.
8Fearful of your behaviour, Ms Moors decided to leave and got into a friend's car. You followed her to the car and pulled her out. You demanded she return your jacket before forcefully removing it from her and throwing her into some nearby bushes. This incident also forms part of Charge 1.
9You later exchanged text messages with the victim in which you agreed that your behaviour was 'disgusting' and stated you felt 'out of control'. You apologised for your behaviour stating, '…I'm fkn sorry about all that I can't believe I've done all that that's really fucked up from me'.
Incident 2: 13 June 2020 at Melbourne CBD
10On 13 June 2020, you and Ms Moors were staying at a hotel in Melbourne.
11Ms Moors wanted to leave and went to the front desk to ask for a spare key, so she could go return to her room to get her belongings. You told the receptionist not to give Ms Moors a key, as it was your hotel room. As a result, she was not provided the key.
12The two of you then moved outside to the front of the hotel, where you pushed her onto the ground with force. This incident also forms part of Charge 1 - common law assault.
13Ms Moors stood up and you walked away from her. She started to call Triple 0, but hung up before telling the operator the address of the hotel. Nonetheless, the police were able to locate her and attended the address. While still in your presence, the police asked if there had been any violence. Feeling intimidated in your presence, Ms Moors replied 'no' to the police and they left.
14The next day, the victim contacted you by text message and confronted you about regarding your conduct. You responded with words to the effect, '… [y]ou deserved it bitch' and '[g]ood you actually pissed me off so bad like you fully got to me when you said I'm just playing games'.
Incident 3: 20 June 2020 at Doncaster
15On 20 June 2020, you and Ms Moors were at a friend's house in Doncaster, where you had been drinking. Ms Moors asked for some time by herself and went outside. Angry that she had walked away from you in the presence of your friends, you followed her outside and grabbed her around the throat with your hands. This incident also forms part of Charge 1 - common law assault. As you were grabbing her, you pulled her by the collar with force and shoved her away with such force, she fell backwards.
16
Ms Moors asked for her keys so she could leave. In response, you threw the keys at her, hitting her in the chest. Ms Moors picked up her keys and went to leave the property, but you followed her. You then threw a whiskey glass at
Ms Moors striking her in the nose, causing her pain. This is the last incident that forms part of Charge 1 - common law assault. You then picked up Ms Moors’ phone and threw it on the ground causing it to break, before walking away.
17After this incident, the two of you broke off your relationship for several months.
Incident 4: October 2020 at St Kilda West
18On 4 October 2020, you attended at Ms Moors’ house at midnight unannounced. You were drunk and upset after the break up. You threw rocks at her house which was captured on CCTV. Ms Moors’ mother spoke to you outside the property and calmed you down, convincing you to leave. Understandably, Ms Moors was concerned by your actions. You are not charged with any offending arising from this incident, but it is the context in which your subsequent offending occurred.
Incident 5: 20 November 2020 Voicemail
19On 20 November 2020, you phoned Ms Moors and left two threatening voicemail messages, stating:
'You better fucking call right now, before this shit gets to the next level, I promise you its not gonna take an hour, you better call me right now, you're gonna see bro, you're gonna fucking see'.
'You have 5 minutes to fucking call me or else your weekend is gonna turn into'.
20Ms Moors was fearful you would show up unannounced again. Your conduct in sending these threatening messages forms part of Charge 2 - using a carriage service to harass.
Incident 6: 24 December 2020 Voicemail
21On 24 December 2020, you phoned Ms Moors again and left another voicemail message, stating:
'I'll pull up to your fucking house, I'll set you on fucking fire bro, I'll burn you fucking down, bro you will I'm see (sic), gonna come to your house and talk to your mum, and we'll see how we fucking go from there'.
22Ms Moors believed you were going to show up to her house and was fearful of what you may do. This incident also forms part of Charge 2 - using a carriage service to harass.
Incident 7: 19 June 2021 Voicemail
23On 19 June 2021, you used a fake Instagram account to contact Ms Moors, although she recognised your voice. In one voice message, you threatened to share nude photographs of her, stating:
'Now that you've messaged Rez, let me show them your ass and titties to them (sic)'.
24This is the last incident that forms part of Charge 2 - using a carriage service to harass.
25You were on bail at the time you committed the offending between 23 May 2020 and 19 June 2021 and have also pleaded guilty to the offence of committing these indictable offences whilst on bail.
26You were interviewed by police in relation to these events on 25 June 2021. Although you admitted to leaving the voicemails, stating 'I did say that, I'm ashamed I talked to her that way', you otherwise denied the offending.
Gravity of offending
27I turn now to the gravity of your offending, that your offending occurred in the context of an intimate relationship marks its seriousness. Over the course of 18 months, your relationship with the victim was characterised by controlling, violent and threatening behaviour, in the context of mutual alcohol and drug abuse. This was unmistakably family violence for which the primary sentencing objectives are general deterrence, just punishment and denunciation. As the Court of Appeal stated in Marrah v R[2]:
‘The sentences must convey the unmistakable message that male partners have no right to subject their female partners to threats or violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship'.
[2] Marrah v R [2014] VSCA 119
28Your abusive behaviour was protracted over the course of your intimate relationship. Further, your threatening conduct continued after the relationship ended. The charge of common law assault, whilst carrying the one maximum penalty of five years’ imprisonment, represents six separate incidents of offending, including instances where you choked the victim by the neck, pushed her to the ground and threw a glass at her face. This was deplorable conduct.
29Fortunately, no physical injuries were suffered by the victim arising from your conduct. However, these were each frightening events for the victim, often occurring in the context of her trying to manage your escalating behaviour by leaving. In sentencing you for the offence of common law assault, my sentence must reflect the totality of your offending over that period. A rolled up charge indicates that the offence was not an isolated occurrence, but rather, represents repeated incidents of offending of the same nature.
30As to the Commonwealth offence of using a carriage service to harass, the gravity this offence is that it occurs repeatedly, after the relationship had ended. Although you are not to be doubly punished for separate offending, it is relevant that the voicemail threats were made in the context of earlier physical abuse. The victim undoubtedly feared you would make good these threats by attending at her home. Fortunately, you did not do so.
31Whilst no victim impact statement has been provided, there is no doubt your offending was frightening for the victim. Such conduct is corrosive of healthy relationships.
32On a positive note, it is clear that after being interviewed by police and charged, you have had no further contact with the victim whilst subject to strict conditions of bail since June 2021.
Personal Circumstances
33I turn now to consider your personal circumstances.
34You were born in September 1999 and are now 23 years of age. You were born in Tehran, Iran and are the youngest child of your parents. Your father left Iran, after struggling to run a fuel distribution business.
35Upon arrival in Australia, your father settled in Epping and worked hard to establish himself to support the family. This allowed for the family to reunify in 2013. You were 14 years old when you arrived in Australia and spoke no English. You had completed the equivalent of Year 9 in Iran.
36Your father initially worked in a meat factory, then in concrete rendering before becoming a truck driver. He sustained a serious workplace injury in May 2021 and has not been able to work since.
37Upon arriving in Australia, you were enrolled at a school to study English. Frustrated with the pace of learning, you left after a month and enrolled in Year 9 at Epping Secondary College, later moving to complete Years 10 to 12 at Mill Park Secondary College. You completed Year 12 in 2017.
38In both Iran and Australia, you participated in taekwondo at an elite junior level for around 14 years. You were successful in this field but were unable to compete internationally due to the cost. You also sustained a serious hamstring injury at around this time, which prevented you from training for a protracted period.
39You have demonstrated a strong work ethic since leaving school. You immediately started full-time work with a concreting business, working for two different companies over a span of nearly three years. However, in November 2020, you sustained a work-related injury to your lower spine, which prevented you from walking for a period of two months and you still remain on 'light duties'.
40Undeterred, you have recently established your own business, Pixeld Paving, which has seen early success, including securing a contract to undertake landscaping for a local council project in Melton.
41You currently live in Doreen with your parents and older sister, all of whom remain supportive of you. You are also supported by a new girlfriend with whom you have enjoyed a stable relationship since March 2022. You have ambitions to pursue a career in aviation and have undertaken flying hours through a flight school at Moorabbin Airport. You are also actively seeking to further your business by studying a Diploma of Building and Construction through Kangan Institute.
42Prior to your current relationship, your relationship with the victim was your first significant intimate relationship. It was in the context of that relationship, that you first began to abuse drugs. Your counsel states you were abusing cocaine, ecstasy and LSD during this period, exacerbating the volatility of that relationship.
43You ceased all drug use in 2021. In August 2021, you were sentenced to an 18-month community correction order for offending that included being a prohibited person possessing a firearm and possession of illicit drugs. That order expired on 22 February 2022. During that order, you completed the drug treatment and provided clear urine screens. However, you did not complete all unpaid community work that was ordered. I return to the relevance of that fact later in my reasons.
44You have a single prior matter being a charge of intentionally damaging property for which you received a without conviction bond. That matter has little, if any, relevance to my sentence. It did not occur in the context of family violence.
Matters Relevant in Mitigation
45On your behalf, Mr Barker provided detailed written submissions which he expanded upon at the plea hearing, in which he outlined a number of matters relevant in mitigation of your sentence.
46I first take into account your plea of guilty. By your plea, you save the victim the ordeal of giving evidence at a trial. For a case such as this, this is significant. Your plea also saves the court the time and expense associated with a trial and demonstrates your acceptance of responsibility for your conduct. Your guilty plea carries additional weight that must be reflected in a further amelioration of sentence, as it was entered at a time when delays in the criminal justice system caused by the pandemic are continuing.[3]
[3]Worboyes v The Queen [2021] VSCA 169 at [39].
47Your youth is also relevant to the sentence I impose. You were 20-21 years old at the time of the offending. As such, you fall to be sentenced as a 'youthful offender'. It was submitted that your rehabilitation should, despite the nature of your offending, take a primary role in the sentencing discretion. While I accept the well-settled principles in relation to young offenders[4], and that they do have application in your case, I must also weigh these considerations against the gravity of your offending, and the need for the sentence to deter others from similar offending more generally.
[4]R. v. Mills (1998) 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43
48In my view, given the nature of your offending, the other relevant sentencing considerations such as general and specific deterrence and denunciation of your conduct, must still carry weight in my sentence. However, you are still a relatively youthful person with much of your life ahead of you. You have one minor criminal prior and a more significant subsequent matter. Despite the seriousness of the offending, your rehabilitation remains a prominent sentencing consideration.
49I turn now to the issue of delay. You were charged with this offending on 25 June 2021, and having served two days in custody, you were bailed. An application for summary jurisdiction was refused in September 2021. After a committal hearing in January 2022, directions hearings were adjourned for the depositions to be completed. Following a case conference before me on 25 August 2022, the matter was adjourned for the prosecution to consider other text messages exchanged between you and the victim, during the course of the relationship. The prosecution fairly concede that these matters assisted in the resolution of this matter. Following this, the matter then resolved following a sentence indication hearing before me on 2 March 2023.
50As a result, over 18 months have elapsed since first being charged with this offending. During this period, despite these charges hanging over your head, you have retained family support, maintained abstinence from drug use, and worked towards establishing your own business, whilst simultaneously engaged in study. You have completed all the program requirements of a community correction order.
51It is, of course, a concern that you did not complete the unpaid work component of the community correction order imposed in August 2021. This is explained, at least in part, by the fact there was a delay associated with COVID-19 in sourcing appropriate work due to your back injury. You are to be dealt separately for breaching that order by failing to attend for unpaid community work, after November 2022 on eleven occasions.
52The question is whether the alleged breach by non-compliance significantly impacts on my assessment of your future prospects and suitability for a further community corrections order. Whilst it is relevant you have failed to complete the work component of the community correction order, you have otherwise complied with all conditions and significantly, have not offended over the past 18 months. The breach is perhaps best explained by a failure on your part to prioritise the work component of your order, whilst establishing your own business and undertaking study.
53The fact you have successfully established your own business, whilst motivated to further your own education, are all positive indications of your future prospects. Most significantly, you remain abstinent from illicit drug use which, combined with ongoing family support and stability, leads me to assess that you have very good prospects of rehabilitation into the future. I do, however, consider you would also benefit from engagement in a Men's Behavioural Change Program to address the unacceptable behaviours that led to these charges.
Sentencing submissions
54In sentencing you for the Commonwealth offence, Charge 2, I have had regard to the sentencing considerations set out in s16A(2) of the Crimes Act 1914 (Cth). These largely reflect the matters to which I must have regard under s5(1) of the Sentencing Act 1991.
55Both the prosecution and defence counsel agreed that your offending warrants the imposition of a community correction order, submitting that such an order would meet the relevant sentencing considerations of general deterrence, just punishment and denunciation, whilst further promoting your prospects of rehabilitation. I accept the joint position of the parties and indicated that subject to you being found suitable, I would impose a community correction order with conditions that included engaging in offence-specific programs aimed at addressing the conduct leading to these charges. In reaching this conclusion, I have had regard to the guideline judgment of the Court of Appeal in Boulton, where the court stated:
'… a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation'.[5]
[5]Boulton v. The Queen [2014] VSCA 342 at [131]
56You have been found suitable for such an order by Corrections and have consented to such an order being made. You were assessed as a low risk of future offending. The report of Corrections states you are able to manage your employment with any unpaid community work, but otherwise recommends minimal intervention to enable you to continue with your 'otherwise largely pro-social lifestyle'. The report did not recommend any ongoing drug treatment or assessment, given your successful engagement in earlier treatment under the previous community corrections order. I accept this recommendation.
Sentence
57Accordingly, balancing the matters to which I have referred, whilst having regard to the maximum penalties for the offences, you are sentenced as follows:
58On Charge 1 - common law assault (rolled up charge) and on Summary Charge 30 - committing an indicatable offence whilst on bail, you are convicted and sentenced to a two-year community correction order. I order that you undertake 90 hours of unpaid community work as a component of that order.
59On Charge 2 - use carriage service to harass (rolled up charge), you are convicted and sentenced to a two-year community correction order. I order that you undertake 50 hours of unpaid community work, as a component of the order made on Charge 2.
60It is accepted by both counsel that a separate community correction order must be imposed on the State and Commonwealth offences. I order that the two orders be served concurrently.
61In addition to the standard conditions and the hours of unpaid community work I have ordered, I also order that you complete any offence specific programs you are directed to undertake, including a Men's Behavioural Change Program under the orders.
62Given you have been assessed as a low risk of future offending, I do not require that you be supervised for the duration of the order, consistent with the recommendation of Corrections.
63You should be aware that if you breach the order by non-compliance and/or by any further offending that is punishable by imprisonment, you may have to return before me for breaching the community correction order. It is a separate offence to contravene a community correction order and I may have to resentence you on the original charges.
64Finally, pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, the sentence I would otherwise have imposed would have been a sentence of eight months' imprisonment followed by an 18-month community correction order.
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