Director of Public Prosecutions v Lodin

[2019] VCC 1810

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00439

DIRECTOR OF PUBLIC PROSECUTIONS

v

RIAZ LODIN

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2019
DATE OF SENTENCE:	7 November 2019
CASE MAY BE CITED AS:	DPP v Lodin
MEDIUM NEUTRAL CITATION:	[2019] VCC 1810

REASONS FOR SENTENCE
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Subject: Armed robbery and trafficking drugs of dependence
Catchwords: Guilty plea – 19-year-old offender – mild intellectual disability – vulnerable to influence of others – strong protective factors – good prospects of rehabilitation
Legislation Cited:
Cases Cited:
Sentence: 3 years imprisonment, minimum non-parole period of 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Dunham
For the Accused	Mr M. Kelly

HIS HONOUR: 

1Riaz Loden, you have pleaded guilty to one charge of armed robbery and three charges of trafficking in a drug of dependence, cocaine, cannabis and methylamphetamine.  You have also pleaded guilty to the summary offence of dealing with $2,700 in cash, suspected of being proceeds of crime.

2You knew another young man named Wunza Akabar. 

3On 17 March 2018, you drove him and a third man, Pan, in your girlfriend's car, to meet a man named Gekko, who had agreed to buy an ounce of cannabis from Akabar for $280.  When Gekko arrived, Pan took the money from him and you said, 'Just do it'.  Akabar produced a gun.  Until then you did not know his weapon was a gun.  Akabar pointed the gun at Gekko and told him to leave.  Gekko returned to his car and fled.  That conduct constitutes the offence of armed robbery.

4As Gekko drove off, you drove erratically, colliding with his car.  He lost control of his car and struck a fence.  Police attended the crash scene and Gekko told them what had happened. 

5Between 13 June and 11 August 2018, police intercepted communications from your mobile phone.  They showed you were involved in trafficking cocaine, which is Charge 2, cannabis, Charge 3 and methylamphetamine, Charge 4. 

6You were a conduit between purchasers and sellers, introducing customers to drug suppliers.  There is no evidence of the actual amounts you trafficked. 

7Police arrested you on 13 September 2018.  You had $2,700 in cash on you.  You were charged with a number of offences and remanded in custody.  After a contested committal, a plea indictment was agreed.

8You have admitted a criminal record of Children's Court convictions, from five appearances between July 2014 until July 2016, for assault, driving and dishonesty offences, including on 15 February 2016, armed robbery and robbery when you were released on probation. 

9You were born on 23 March 1998 and are now aged 21 years.  You were 19 and 20 years old when you offended. 

10Your personal circumstances are set out in the psychological report of Luke Armstrong. 

11Your parents are refugees from Afghanistan.  You are the second of four children.  Your father operates a clothing market stall and your mother is a full-time carer.  You went to local primary schools and then to Minaret Islamic School at Officer.  You struggled at school and were bullied.  Your parents blamed you for your problems and your father regularly beat you. 

12Before you were 10 years old, an adult family friend masturbated in front of you.  The experience traumatised you, but you told no one.  In high school you got into fights and, in your words, fell into the wrong crowd.  You started experimenting with drugs.  You were expelled from Minaret and then moved to Keysborough Secondary College.  You were expelled from there and moved to Lyndale and then to Carwatha, where you repeated Year 10 and were expelled again.

13When you were 16 years old, you were introduced to ice and fell into crime.  You had periods of detention at Malmsbury Youth Justice Centre.  When you were released, you had stopped taking drugs and you commenced a relationship, which has been stable for four years.  You had a job as a labourer for six months.  When you lost your job, your drug use escalated and,
drug-affected, you committed these offences. 

14On the day you committed the armed robbery, you described yourself as 'all over the place'.  You told Mr Armstrong, 'I knew something was up.  I couldn't say "no" to anyone.  It all went to shit.  I didn't know what to do.  I shouldn't have got involved.'  You said the incident scared you. 

15When you offended, your partner, Georgia, who knew of your drug use but not your crimes, threatened to leave you if you did not stop using drugs.  You curbed your drug use and obtained labouring work.  Your employer, Zink Hussain, described you as very hardworking and reliable and he is prepared to re-employ you when you have served your sentence. 

16By the time of your arrest, you were drug-free.  You had taken significant steps to self-rehabilitate before you were remanded in custody.  In a letter you wrote to the court, you said that your time in prison has further strengthened your will and desire to be a meaningful and contributing member of society.  You have undertaken the drug and alcohol and offender programs made available to you in gaol. 

17You were supported in court by your mother, sister, cousin and partner. 

18Your sister, Wagma, is a dental nurse.  She wrote, during your adolescence years, you struggled with the negative influence of peers and also your mental health.  She noticed a significant positive change in you before your incarceration.  She used to drop you off at work daily.  She said you are very close to your mother, who is unwell.  You sister visits you frequently in gaol.  She says you have expressed profound remorse for, and shown insight into, your offending. 

19You cousin, Loyne, described the two of you as like brothers.  He said you are a caring and intelligent individual, however your mental health deteriorated when you abused drugs.  He confirmed, prior to your arrest, you had found work and resumed martial arts training.  He said you supported him when he was enduring family grief.  He said you were very remorseful and want to try to make amends for the shame you have brought on your family.

20Peter Hatton, your martial arts trainer, first coached you in 2014.  He observed you and others during your troubled youth.  He has kept in contact with you.  He is confident, unlike others he has seen, you can overcome your past and lead a law-abiding and productive life. 

21A family friend, Virginia Easton, has seen you only as a good son and brother.  She was disappointed to see you take a wrong turn in your life but is confident you will do much better and make better judgments in the future. 

22The psychologist, Mr Armstrong, conducted a number of tests.  Your general cognitive ability is within the extremely low range of intellectual functioning.  In his opinion, your behavioural problems are linked to your extremely low intellectual functioning and chronic familial dysfunction. 

23I accept his opinion that you have a mild intellectual disability which affected your ability to make proper judgments when you offended.  I also accept your intellectual impairment made it harder for you to resist the influence of your
co-offenders. 

24In written and oral submissions, Mr Anger, who appeared for you, relied on the following factors in mitigation of penalty: 

·Your plea of guilty;

·Your remorse;

·Your youth at the time you offended;

·Your intellectual disability;

·Your steps to self-rehabilitate prior to your arrest; and

·Your good prospects of rehabilitation.

25I accept the force of these submissions and have taken them into account in moderating the sentence I would otherwise have imposed. 

26He submitted, and I accept, your motive to offend was to get money to obtain drugs.  You made no significant financial gain for yourself.  At the time you were living at home with your parents and you did not own a car.  He also submitted, and I accept, your intellectual impairment moderates your moral culpability and will increase the hardship of prison for you. 

27Mr Cameron, who appeared for the prosecution, acknowledged the mitigating factors, but submitted the crime of armed robbery is inherently serious and warrants a term of imprisonment, with the imposition of a non-parole period. 
I accept the prosecution's submission. 

28Mr Akabar had pleaded guilty to one count of armed robbery, two counts of trafficking in a drug of dependence, cocaine and cannabis, and nine dishonesty offences.  I accept his role in the armed robbery was greater than yours.  He was the principle protagonist and you were his driver.  He was buying and selling cocaine and cannabis.  When he was arrested, he was in possession of cash and stolen property.  His drug trafficking was more extensive than yours and he also had been previously convicted of a number of dishonesty offences.

29While he was a 20-year-old first offender, his offending was more serious than yours and the requirement for just punishment of him was greater.  I sentenced him to detention in a youth justice centre for two years and six months, after he had served 272 days in custody in an adult gaol.  A youth justice centre disposition is not available to you now.  I have had regard to Mr Akabar's matter in sentencing you. 

30Please stand, Mr Lodin. 

31By the sentence, I must denounce your conduct.  I must punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to protection of the community and also to your rehabilitation. 

32Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows:

33On Charge 1, armed robbery, you are convicted and sentenced to two years, nine months' imprisonment. 

34On Charge 2, trafficking cocaine, you are convicted and sentenced to three months' imprisonment. 

35On Charge 3, trafficking cannabis, you are convicted and sentenced to three months' imprisonment. 

36On Charge 4, trafficking methylamphetamine, you are convicted and sentenced to three months' imprisonment.  

37On the summary charge of dealing with cash suspected of being proceeds of crime, you are convicted and sentenced to two months' imprisonment. 

38I direct that one month of each of the sentences on Counts 2, 3 and 4, be served cumulatively on the sentence imposed on Charge 1 and on each other. 

39I direct that the sentence imposed on the summary charge be served concurrently with all other sentences. 

40Your total effective sentence is three years' imprisonment.

41To mitigate your punishment and advance your prospects of rehabilitation and taking into account your relative youth and impressive steps to self-rehabilitate, I impose a minimum non-parole release period of one year and six months.

42I declare you have already served 420 days of your sentence by way of
pre-sentence detention. 

43I declare, but for your plea of guilty, I would have imposed a total effective sentence of three years, nine months imprisonment and fixed a non-parole release period of two years and six months. 

44By consent, I make orders for forfeiture and disposal of a silver revolver, cash and mobile phones and a black bag and green cloth which police seized in the terms of the draft orders filed.

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