Director of Public Prosecutions v M. Khoder, Director of Public Prosecutions v J. Smith
[2013] VCC 895
•26 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01648
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED KHODER JESSICA SMITH |
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JUDGE: | M.P. Bourke | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 April 2013 | |
CASE MAY BE CITED AS: | DPP v. M. Khoder, DPP v J. Smith | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 895 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Warren | |
| For the Prisoner Khoder | Ms M. Marich | |
| For the Prisoner Smith | Mr P. Dwyer |
HIS HONOUR:
1 Jessica Smith, you are to be sentenced for one count of attempting to obtain property by deception, one count of assisting an offender knowing that person to be guilty of a serious indictable offence, one charge of possession of an unregistered hand gun, one charge of making a false document, one charge of assaulting a police officer and two charges of possessing a drug of dependence. You are also to be sentenced for the summary offences of false report to the police and dealing with property suspected of being proceeds of crime.
2 The maximum sentences are: for attempting to obtain property by deception and assisting an offender and assaulting police, five years' imprisonment; for possessing an unregistered hand gun, seven years imprisonment; for making a false document, 10 years' imprisonment; for possession of a drug of dependence and making a false report to police, one year's imprisonment. Subject to this on the possession of cannabis charge the maximum penalty a fine of 500 penalty units. I interrupt myself to say this, Ms Warren: that I am wondering whether or not I am permitted to include that offence on a Community Corrections Order given that that is the maximum penalty. I will hear from you at the end of my reasons about that.
3 MS WARREN: Yes, Your Honour.
4 For the offence of dealing with suspected proceeds of crime, two years' imprisonment.
5 Mohammed Khoder, you are to be sentenced for one charge of attempted armed robbery. The maximum sentence is 20 years' imprisonment.
6 You both pleaded guilty before me on 17 April 2013. Smith, when interviewed by police on 27 April 2012, you exercised your right to silence or denied the offending. You made some admissions relevant to the making false document charge. Khoder, you were interviewed by police on 15 November 2011 and exercised your right to silence. Both of you entered pleas of guilty at the committal proceedings in early February 2013. Jessica Smith, I bear in mind that after negotiation at that time a number of other charges against you were withdrawn.
7 You both receive the benefit of your pleas of guilty made at an early stage of the proceedings. Your pleas are both an expression of remorse and have facilitated the interests of justice. A trial of the charges against you and your three co-accused would have been a lengthy one.
8 At the plea hearing of the proceedings against you and two co-offenders on 17 April Mr Gilligan, for the Crown, tendered a written Crown opening, DVD film of a number of armed robberies and victim impact statements of several people. Most of the film tendered and all of those victim impact statements do not relate to the offences committed by you. Mr Gilligan also provided to me a document stating the range of sentences for so-called high-range armed robberies.
9 Mr Kenny for you, Jessica Smith, tendered the psychiatric report of Dr Anthony Cidoni dated 11 April; a number of Court Integrated Service Program reports (CISP) related to your circumstances and performance on that bail program; two counselling reports by Maria Sicura of Anglicare Victoria dated 26 June and 7 August 2012; a number of drug screening reports and the character reference letters of Justine James and Robyn Dix.
10 Dr Fitzgerald for you, Mohammed Khoder, tendered the psychological reports of Carla Lechner and Gary McMullen dated respectively 10 December 2011 and 17 March 2013 and he tendered the letter of psychiatrist, Dr Jayasuriya dated 29 March 2011.
11 The circumstances of your offending and that of your co-offenders are comprehensively described in the Crown opening which is tendered as Exhibit A. My own summary may therefore be shorter.
12 A police operation named Sampson Taskforce 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 telephone records and cell tower locations, and listening device surveillance.
13 Relevant to your proceedings the operation has led to the arrest and charging of you and four co-offenders. Those co‑offenders include your accused in these plea proceedings, Ariki Julian and Mohammed Khoder. Khoder, that Mohammed Khoder is your cousin of the same name now aged 25, having been born on 12 August 1987. You are aged 30, having been born on 15 December 1982. The plea hearings of those two co-offenders also ran on 17 April. They will be sentenced by me on a later date.
14 Broadly described, the offending includes the theft of motor vehicles and firearms, armed robberies or attempted armed robberies at seven venues (one was robbed twice) and what might be called incidental offences, such as; Jessica Smith, your attempt at deception of a motor car insurer, the related false report to police, the making of a false document in respect of speeding fine infringements and your drug possession charges.
15 It can be fairly be said that both of you are lesser offenders than the two men, Khoder and Julian, I shall later sentence.
16 Mohammed Khoder, the offence for which you are to be sentenced is the attempt to rob the Pascoe Vale Hotel in the early hours of 1 September 2011. You and two co-offenders - neither alleged to be the two co-accused in these proceedings I will later sentence - went to that hotel. You were the driver. The other two went to the entrance. It was locked. One man produced a gun and pointed it through the locked door at hotel security staff but access was still denied. They returned to the car and you drove off.
17 After this. Jessica Smith, you assisted the offenders by collecting and disposing of the firearm. That is the assist offender charge against you. The possession of unregistered hand gun also relates to that gun.
18 I accept that you, Mohammed Khoder, became involved because of your relationship to cousins involved in the general scheme of offending. I also accept that you are a man of limited intellectual capacity. I shall return to that.
19 Jessica Smith, you committed the offences of making a false report to police and attempting to obtain property by deception in late August 2011. At that the time you and the other, younger Mohammed Khoder were in a relationship. Police were maintaining surveillance on his premises at Stewart Grove, Campbellfield. A black Holden Astra registered to you was seen to be towed away. That was on 24 August. On 25 August you falsely reported the car stolen. You also lodged an insurance claim to AAMI insurers for the insured value of the vehicle. The car had an earlier time been damaged. The claim was identified as fraudulent and denied. Your make false document offence occurred during March 2012. Having acquired a number of speeding infringement notices when driving the Astra you falsely nominated your partner, the younger Mohammed Khoder, as driver. There were 11 such false nomination statements. The charge before me is thus a rolled-up count. Mohammed Khoder was throughout most of this time in custody. I was told that he knew of and agreed to the falsifications.
20 The other charges against you arise out of your arrest by police at your premises in Werribee in late April 2012. You assaulted a police officer named Detective Senior Constable John Siannakis, kicking him to the left shin. You were quickly restrained. A subsequent search revealed 11 tablets of buprenorphine and small amounts of cannabis. They are the possession of drug of dependence charges.
21 Your offence of dealing in suspected proceeds of crime occurred in November 2011. Offenders including both of the men named Mohammed Khoder committed an armed robbery of the Preston Hotel. They were under Sampson Taskforce surveillance and were arrested a short time later at a Reservoir House. You were also arrested in possession of two amounts of cash amount to $830. This armed robbery is not an offence before me.
22 Both Mohammed Khoders were remanded in custody and on 30 March 2012 Judge Howie sentenced both for this offence. You, Mohammed Khoder, received a total sentence of five years and three months. Three months of that was for the offence of driving while suspended. Judge Howie set a minimum term of three years and declared 77 days of pre-sentence detention.
23 Jessica Smith, you are a 25‑year‑old woman. You live in Werribee with your mother. You were aged 23 and 24 at the time of these offences. You were raised in the north and west of Melbourne by your mother as the third of four girls. You had little to do with your father. You have a close relationship with your maternal grandmother. Secondary school was affected by an undiagnosed illness at 15 and 16, which may have been neurologically caused. You left school during 10.
24 At 18 you began employment at the Brunswick Club as a bar and gaming attendant. You did well and by your early 20s worked in management roles. However, you left that employment when 22 because of problems caused there by your partner, Mohammed Khoder. I accept that you have committed these offences in the context of a damaging relationship with Khoder and his influence upon you. There were elements of physical abuse and your own developing heavy abuse of methylamphetamine. You met when you were aged 20. The relationship is now over.
25 It must be noted that some of your offending occurred after Mohammed Khoder's remand into custody. Mr Kenny said that you continued to use drugs and remained close to his family until your own arrest in late April 2012. I accept that you are now drug-free.
26 The opinion of psychiatrist, Dr Cidoni, includes diagnosis of major depressive disorder and anxiety related to these proceedings. His report states that necessary ongoing treatment includes antidepressive medication; "ongoing input" from a psychiatric nurse; psychiatric review by Dr Cidoni and engagement with substance abuse services. He notes the effect of your abusive relationship with Mohammed Khoder.
27 Dr Cidoni also states as follows:
"In my opinion her"
- meaning you -
"mental state would significantly deteriorate in custody, as has already been demonstrated in her previous incarceration. Her anxiety and depression would worsen and there would be a risk of self-harm as she would experience imprisonment as more onerous than if she did not suffer from the conditions."
28 It was put to me that the R v. Verdins is relevant to your sentence in those ways. I accept such relevance, however, those principles have, in my view, limited significance.
29 Your prior criminal record attached to the Indictment states two court appearances in 2006 and March 2012. They are for minor offences. Mr Kenny told me about a pending or subsequent matter. There were further drug possession offences committed in December 2012. You have pleaded guilty.
30 What has happened since your arrest on 24 April 2012 and your attempts at rehabilitation are important matters. You were remanded in custody until receiving bail on 8 May 2012. Bail was conditioned upon your involvement in the CISP Bail Program. As stated earlier, there are tendered a number of reports about the circumstances of that and your performance on that program. You have done well. Important components have included supervision by the CISP Program, drug and alcohol counselling, psychological counselling treatment by and under the care of Dr Cidoni. You have ended your relationship with Mohammed Khoder and now live permanently with your mother. You appear to be drug-free.
31 The seriousness and extent of your offending should not be underestimated. It was varied and prolonged, running over an eight-month period. It was offending that requires consideration of such sentencing factors as deterrence, particularly general deterrence, denunciation of your conduct, your moral culpability and a need for proportionate punishment. Such offending would often, perhaps usually, require a sentence of immediately served imprisonment.
32 However, I have been persuaded to give you the opportunity to avoid that. The matters which have persuaded me to that include your plea of guilty, the personal context and circumstances of your offending, your limited role as to some offending and your still relatively young age. Related to that emphatically the most significant matter has been your attempts at and movement toward rehabilitation since arrest. I see you as having prospects for rehabilitation and I am persuaded that I should impose a sentence which does not endanger and which encourages and supports that. The Crown has not argued against such an approach.
33 I have received the report of Matthew Pearce of Community Correctional Services which finds you suitable for the making of a community corrections order under Part 3A of the Sentencing Act. I shall make such an order. The conditions will include unpaid community work and appropriate treatment and rehabilitation conditions.
34 I shall formally sentence you after I sentence your co-accused, Mohammed Khoder, later this morning. Just remain where you are.
35 Mohammed Khoder, you are a 30‑year‑old man presently serving the sentence given by Judge Howie on 30 March 2012. You were born in Australia of Lebanese parents, the fifth of 11 children. You were raised in the Brunswick area. It was a strict Muslim upbringing. There was physical punishment imposed by your father. In teenage and into adulthood you have been estranged from your parents.
36 Schooling was affected by a serious motor vehicle accident in year 8. After that, at 15, you were sent to Lebanon for a period. You were sexually abused by a relative there. Your complaint to your family was not believed. An attempt to return to school in Australia was not successful. You were and are hampered by a limited intellectual capacity.
37 You have worked, it seems sporadically, since school. There was a period of some years in late teenage working and living with a brother in Mount Gambier. However, you lapsed into drug use. You are married and have four children. The relationship with your wife has been troubled with intermittent separations over the years. She remains supportive of you.
38 Your life has been damaged by drug use. You began using cannabis and then amphetamines and heroin in teenage. As an adult you have mainly used and become dependent on heroin. That was the situation when you committed this offence. I was told that you were living a dislocated existence using drugs and affected by psychiatric illness.
39 Your prior criminal record states a large number of court appearances between January 2001 and May 2010. There are driving offences and offences of dishonesty. There are some offences of violence, including a conviction for robbery in 2004. There are convictions for drug offences.
40 The tendered medical evidence states a diagnosis of schizophrenia. This illness, according to Dr Jayasuriya, is complicated by drug abuse and antisocial personality traits. In May 2011 you were hospitalised and were receiving antipsychotic medication. It was not put that you were in a psychotic state when committing this offence.
41 You are presently at Fulham Prison. Dr Fitzgerald stated that you are drug‑free and coping without use of medication for your schizophrenia. The psychological material also states varying diagnosis, or opinions, of drug dependence, post‑traumatic stress disorder, possibly related to your father's physical punishment and the sexual assault, and intellectual disability.
42 Carla Lechner states you to be at the so-called borderline level of intellectual capacity. The other psychologist, Gary McMullen, conducted psychometric testing in February 2013. That found a full-scale IQ score of 67. Mr McMullen places you in the mildly intellectually disabled range. Such a finding would entitle you to assistance as an intellectually disabled person.
43 I find that the Verdins' principles must play a role in sentencing you on the basis of your psychiatric illness to some extent, but particularly related to your intellectual disadvantage. I was referred to the 2011 High Court decision of Muldrock v. the Queen in this regard. The extent to which such an incapacity should moderate the consideration or purposes of moral culpability, denunciation, deterrence and punishment must depend on the circumstances of the case and the level of disability relevant to that. I find that you are intellectually disabled, that that is an ongoing state of disadvantage. It must be recognised that you have a lack of capacity to reason as others might, including about the wrongfulness of criminal conduct.
44 Armed robbery is a most serious crime. It attacks good order and the safety and wellbeing of people placed, usually through no choice, in its way. It is a crime which makes important those sentencing considerations I have raised earlier of deterrence, moral culpability, denunciation and the need for proportionate punishment.
45 Your commission of this offence and role within it makes necessary that I sentence you to a term of imprisonment. Your illness, drug use and diminished mental capacity do not change that.
46 However, there are several factors which should go to moderate that sentence and they include the following matters.
(i) Your plea of guilty.
(ii) Your personal circumstances; that includes the principles stated in the R v. Verdins. The sentencing considerations I have earlier raised must be moderated in a way appropriate to your case and I shall do that. Your illness and disability do not presently seem to be major difficulties for you in prison; however, I should not underestimate those problems and the added burden they may mean now and into the future of your sentence.
(iii) I must and do apply the principle of totality to your sentence as it relates tot he sentence imposed by Judge Howie in March 2012. I note, for example, that the two offences were committed by you in September and November 2011.
47 My head sentence and its proposed minimum term must be tailored to reflect the proper total punishment. Further, I am able to apply the principle of totality to the making of a new minimum term applicable to both my sentence and the sentence of Judge Howie. I am required to do that under s.14 of the Sentencing Act.
48 Stand up, please. Mohammed Khoder, I sentence you as follows: on one charge of attempted armed robbery you are sentenced to imprisonment for three years. I direct that 12 months of that sentence be served cumulatively upon the sentence imposed by Judge Howie on 30 March 2012. In that I would propose to set a minimum term on my sentence under s.14 of the Sentencing Act I impose a new nonparole period or minimum term relating to both sentences, that of my sentence and that of Judge Howie. That new nonparole period is a period of three and half years running from the date of Judge Howie's sentence on 30 March 2012.
49 I seek to make clear that the pre‑sentence detention of 77 days which he declared applies to this new minimum term that I have imposed. It is my intention that you serve, as a minimum term, a further six months beyond the minimum term imposed by Judge Howie.
50 Had you not pleaded guilty I would have imposed a head sentence of four and a half years and imposed a new minimum term under s.14 of four years. When I say that I note the difficulty in indicating what I would have done, bearing in mind the mechanics and/or issues raised by s.14 but I have done the best I can to meet the requirements of s.6AAA.
51 There are other orders, are there not? I think I will deal with them now so that Mr Khoder can be taken into custody.
52 MS WARREN: Your Honour, there are actually no other orders in relation to Mr Khoder. He is already on the database for a forensic sample.
53 HIS HONOUR: Can he be taken into custody now?
54 MS WARREN: Yes, Your Honour.
55 MS MARICH: Could I have a brief word with him before he goes?
56 HIS HONOUR: Yes. Is that suitable for you?
57 MR DWYER: Yes, sir.
58 MS WARREN: Perhaps while that is being done, Your Honour, I can address the question of whether the possession of cannabis would fall under the CCO.
59 HIS HONOUR: Yes.
60 MS WARREN: Your Honour is quite right, it actually can't. The full provision in relation to the penalty is not more than five penalty units for the possession of less than a small quantity.
61 HIS HONOUR: Did I say 500 penalty units? I was converting it to dollars.
62 MR O'DWYER: It's about $600-odd.
63 HIS HONOUR: Thank you.
64 MS WARREN: Yes, Your Honour. But the CCO cannot - it's only for an offence punishable by more than five penalty units, so perhaps a nominal fine, Your Honour.
65 HIS HONOUR: It really should be a pretty moderate fine, shouldn't it?
66 MS WARREN: Yes.
67 HIS HONOUR: That's all I can do, I take it.
68 MR O'DWYER: Yes, Your Honour, I was going to suggest that.
69 HIS HONOUR: I would impose a fine of $50. Do you want to make any submission about that?
70 MS WARREN: No issue with that, Your Honour.
71 HIS HONOUR: That is what I will do. Thank you.
72 MS WARREN: Thank you.
73 HIS HONOUR: Mr Mohammed Khoder can be taken into custody. Which is the charge of possessing cannabis on the Presentment, Ms Warren?
74 MS WARREN: It won't be on the Presentment, Your Honour.
75 HIS HONOUR: Are you sure?
76 MS WARREN: Sorry, Your Honour, I'm told it on the Presentment.
77 HIS HONOUR: I wondered about that too.
78 MS WARREN: Sorry, I just assumed it would be a summary but it is on the Presentment, Your Honour. It's 29, Your Honour, and 30 for the possess.
79 HIS HONOUR: I can include Charge 30 in the community corrections order.
80 MS WARREN: That's right, Your Honour.
81 HIS HONOUR: If you would stand up please, Ms Smith. I sentence you as follows: on charges of attempting to obtain property by deception, assisting an offender, possessing an unregistered hand gun, making a false document, assaulting a police officer, possession of a drug of drug of dependence, buprenorphine, false report to police and dealing with property suspected of being proceeds of crime you are convicted and I make a community correction order. The usual conditions apply and I make additional conditions as follows: you must perform 300 hours of unpaid community over a period of two years - I stop to say that I may not have indicated the duration of the whole order is a period of two years. You must be under the supervision of a Community Corrections officer for a period of two years. You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager of Community Corrections. You must undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility as directed by the regional manager.
82 On the charge of the possession of a drug of dependence, being cannabis, which is Charge 29 on the Indictment, you are convicted and fined $50. Do you seek a stay in relation to that?
83 MR O'DWYER: It's a nominal stay of a month anyway.
84 HIS HONOUR: Yes, I grant you a stay of a month. You can come out of the dock now and stand near Mr O'Dwyer. The cannabis has come up on the order. I will just delete it by hand. What has happened is because we're now assisted by a sophisticated electronic system, that system has failed to include on the order the summary charges. I suppose it needs to be on it.
85 MS WARREN: Yes.
86 HIS HONOUR: Because we're now assisted by sophisticated electronic systems we can't quickly change it by hand. We need to get the sophisticated electronic system that assists us to do it for us and that might take 20 minutes or so. I apologise for that on behalf of our sophisticated electronic system.
87 MS WARREN: That shouldn't fall on Your Honour's shoulders.
88 HIS HONOUR: It's been a terrific morning. I'm having a ball.
89 MR O'DWYER: Every confidence in your associate.
90 HIS HONOUR: Sorry?
91 MR O'DWYER: Every confidence in your associate to rectify any ‑ ‑ ‑
92 HIS HONOUR: She's going to take the system to task now. You will have to wait there while the documents are properly prepared. I am sorry that you have been inconvenienced in that way.
93 MS WARREN: These are the sample documents, Your Honour, the ancillary orders for disposal of the ‑ ‑ ‑
94 HIS HONOUR: These are orders in relation to a saliva sample?
95 MS WARREN: Retention of a sample, Your Honour, and disposal of the drugs that were located.
96 HIS HONOUR: Do you want to say anything about that?
97 MR O'DWYER: No, Your Honour.
98 HIS HONOUR: The disposal order relates to the drugs. I'm going to make that order. I'm going to sign that now. The forensic sample, is that a retention, is it?
99 MS WARREN: It is, Your Honour, yes.
100 HIS HONOUR: It's been taken so it's a retention order. The reason why I'm going to do that - the reasons include the seriousness of the offending and that it's not opposed. I see the granting of the order as being in the public interest. I am going to sign it now. I will hand those orders back to you. How old is Ms Smith now?
101 MR O'DWYER: 31. Whilst I didn't know the details of the order, Your Honour, I have explained the likely outcome and the need to adhere.
102 HIS HONOUR: I will say it to her. I'm obliged to say all these things to her.
103 MR O'DWYER: I know, Your Honour, but I was just prefacing what Your Honour was going to say that she is certainly keenly aware of all of that and the court should take some confidence because of her participation on the CISP program and the other program.
104 HIS HONOUR: Yes. If you could stand up, Ms Smith. On those charges I am making, after convicting you, a community correction order and I am just going to tell you what the conditions of that are. It runs for two years, so it ends on 25 April 2015. You must attend the Werribee Community Correctional Services in Wotton Street, Werribee - you may or may not know where it is - but it is written down her for you to go there. You have to do with that within two clear working days of today. You would have to do it by the end of Monday, I would have thought.
105 The other mandatory or usual terms that apply to apply to all community correction orders are these: you must not commit another offence for which you could be imprisoned during the time that the order is in force. If you did, you would come back before me and all of this. You must comply with any obligation or requirement prescribed by the regulations and particularly regulation 17 of the Sentencing Regulations. That applies, as I understand it, to not being drug or alcohol affected when engaging with the program. You must report and receive visits from a Community Corrections person. You must report to a Community Corrections centre within two clear working days, as I have said to you. You must let a Community Corrections officer know within two clear working days of changing your address or job. You must not leave Victoria without first getting permission to do so from Community Corrections. You must obey all lawful instructions and directions of Community Corrections.
106 The special conditions are these: you must perform 300 hours of unpaid community work over that period of two years as directed. You must be under the supervision of a Community Corrections officer for two years. You must undergo assessment and treatment, including testing for drug abuse or dependency as directed. You must undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility as directed, if required. All right. Do you understand all of that?
107 MS SMITH: Yes.
108 HIS HONOUR: Do you consent to the order being made?
109 MS SMITH: Yes.
110 HIS HONOUR: That being the case, you sign it and return it to me. I will sign it now and then you can go. You will get copies of these. Can I just say one thing to you: you're 25 now - perhaps I will go back a step. I have quite some exposure to young people because I sit on the Youth Parole Board, you're older than 21 so you're not that; but you're still young. Can I just reflect on this: that many young people that fall foul of the criminal justice system have very little support from family and friends. I have noticed over the period of this case that you do have that support and I think you're very lucky to have it. I see now there are relatives here and your ex-employer is here to support you. What you have got to do is make sure you take advantage of that and not fall into the situation that you fell into before because those people won't help you much at all and you've got people at home who will. I wish you the best and the people that have come here with you. Thank you for your assistance. You are both excused.
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