Director of Public Prosecutions v Maafa

[2022] VCC 341

All goo

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00983

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAJED MAAFA

---

JUDGE:	HER HONOUR JUDGE ELLIS
WHERE HELD:	Melbourne
DATE OF HEARING:	9 March 2022
DATE OF SENTENCE:	21 March 2022
CASE MAY BE CITED AS:	DPP v Maafa
MEDIUM NEUTRAL CITATION:	[2022] VCC 341

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              armed robbery - causing injury recklessly – unknown co-offender – Verdins – Bugmy – early plea of guilty

Legislation Cited:      Crimes Act 1958;

Cases Cited:R v Verdins (2007) 16 VR 269, Worboyes v R [2021] VSCA 169, Bugmy v R (2013) 249 CLR 571, Boulton v The Queen [2014] VSCA 342

Sentence:                  Imprisonment for a period of 16 months, followed by a Community Corrections Order of 18 months. Conditions of supervision, treatment and rehabilitation for drugs, mental health and programs to reduce re-offending.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms I. Basedow	Office of Public Prosecutions
For the Accused	Mr P. Wilkins	Wilkins Lawyers

HER HONOUR:

1Sajed Maafa, you have pleaded guilty to:

· One charge of armed robbery contrary to section 75A of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment; and

· One charge of causing injury recklessly contrary to s 18 of the Crimes Act 1958, which carries a maximum penalty of five years imprisonment.

Circumstances of offending

2The circumstances of your offending are set out in a detailed summary of prosecution opening, marked Exhibit A on the plea.  The offending in this case took place on 28 December 2020.

3

An unknown person contacted the victim, Mr Viral Shah on Facebook Marketplace in response to an advertisement Mr Shah had placed, offering gold and silver bars for sale.  The unknown person arranged with Mr Shah to view the items at

Mr Shah’s home in the evening of 28 December 2020.  That unknown person was a male that you had become acquainted with.

4At around 6.40 pm that evening, you contacted Mr Shah by telephone, indicating that you were nearby his home.  You accompanied Mr Shah into his home where his three housemates were also present.  Mr Shah produced a number of gold and silver bars and coins and placed them onto the coffee table in the lounge room. You identified yourself as ‘Jacob’ and said that your father owned a jewellery store in Campbellfield.  You inspected each coin and weighed each item on a set of scales provided by Mr Shah.

5You then told Mr Shah that you were going to speak to your father; walking outside and appearing to speak to someone on the telephone.  An unknown male knocked on the door some minutes later.  You told Mr Shah that this man had dropped you off at the house and was there to pick you up.  Mr Shah’s housemate opened the door and the unknown male walked into the lounge room.

6You and the unknown male then asked to see the gold again.  The unknown male stated, ‘I am taking all of this’ and took the coins and bars from the coffee table, placing them into his hooded jumper pockets.  As he was doing this, the male produced a knife, which is described by Mr Shah as being approximately 30 centimetres long.  As the unknown male moved towards the front door to leave, Mr Shah stood between you and the male to prevent you from leaving.

7You produced a butcher’s knife of approximately 30 centimetres in length and yelled at Mr Shah to get out of the way or you would stab him.  You moved towards Mr Shah who held up his hands to protect himself and slashed or stabbed him three to four times in his left hand, causing lacerations.  Mr Shah fell to the ground.

8You and the unknown male then ran from the house and were pursued by Mr Shah and one of his housemates.  You then entered a silver Sedan and drove away.

Victim Impact Statement

9A victim impact statement was prepared by Mr Shah on 30 January 2021, and tendered on the plea (Exhibit B).  It is clear that your offending has had a profound impact on him.  Mr Shah describes that since the offending he has felt fearful, preventing him from sleeping and feeling secure at home.  Mr Shah feels frightened if he sees someone who looks like you in public, as it triggers memories of the offending.  He has lost trust in people and is afraid to make new connections or invite new people into his home.

10Mr Shah was also injured during the offending and has suffered nerve damage in his finger.  This injury has meant that Mr Shah has found it difficult to complete daily tasks.  Notably, your offending has had a significant financial impact on him. Mr Shah has described that he is the main financial support of his family, who are based in India.  Your offending caused Mr Shah to lose some highly valuable items, which he intended to sell to support his family.  Since the offending, Mr Shah has had limited funds and has struggled to pay his bills.  Mr Shah described that your offending has hampered his plans to complete further studies.  Prior to the offending, Mr Shah was planning to apply for a student visa and study in Australia. He no longer has the financial resources to pay for the visa extension or the tuition fees.

11You were identified on CCTV footage as running away from the premises.  On 29 December 2021, police attended your last known address and spoke with your mother.  Later that evening, you contacted police and indicated you wanted to hand yourself in.  You attended Werribee police station at around 11.30 and you were arrested.  You participated in a record of interview with police, in which you made a number of admissions and provided an account of the offending.

Procedural History

12

You were charged on the day of your arrest, namely 29 December 2020.  You entered a plea of guilty to these charges at a committal case conference on

12 May 2021.  A plea hearing was heard in this court on 9 March 2022.  I accept that your plea was entered at the earliest opportunity.

Prior Criminal History

13At the time of this offending you were 24 years of age.  You have admitted a prior criminal history.  On 7 February 2019, you were convicted in the Melbourne Magistrates’ Court of aggravated burglary, theft, obtain property by deception, and attempted burglary.  On that occasion, you were sentenced to three months imprisonment and then upon release, placed on a community corrections order for 10 months.

Personal Circumstances

14Your counsel, Mr Wilkins has prepared written submissions on your behalf which were supplemented in the course of a comprehensive plea.

15You are now aged 26.  You were born in January 1996 in Peshawar, Pakistan. Your parents are both of Algerian background, although your mother was raised in France.  You have four siblings, two older brothers and two younger sisters. Your family are of Sunni Muslim faith.

16In 1998, your family relocated to New Zealand from Pakistan.  During this period, your family rented several homes in various places, moving on multiple occasions. In 2004, after approximately five years in New Zealand, you and your family migrated to Australia.  Initially, your family settled in a public housing estate in Flemington.  Later, your family moved to Werribee, then to Newport, followed by Meadow Heights and lastly to Kilmore, where your family has resided for the last nine years.

17You attended multiple primary schools in New Zealand and after your arrival in Australia, you attended three primary schools in Melbourne.  Due to the frequent relocations throughout this period, you experienced social isolation at primary school.  This isolation was exacerbated by the bullying that you suffered.

18You have a difficult relationship with your father, who throughout your childhood was frequently emotionally, verbally and physically abusive towards you and your family members.  Your father exercised a significant degree of control over you and your family.  You were often prevented from socialising, making friends or inviting people to your home.  Your mother experienced social isolation during her relationship with your father.  He was controlling with regard to finances, often accessing your mother’s salary and ordering that cash be paid to him.  He also demanded money from your wages.

19You attended an Islamic School located in Broadmeadows and later completed Year 12 at Ilim College in Dallas, after which you commenced a Bachelor’s Degree in Electrical Engineering and Business at La Trobe University.  At this time, you moved into share accommodation, however, you were expelled from university the following year, after being found on campus with a small amount of cannabis.

20While studying, you worked as a kitchenhand for a few months and later worked at Coles Supermarkets.  You were employed there for a period of four years. After leaving university, you initially found work assisting plumbers and builders, however, you had difficulty maintaining regular employment.

21In 2016, you found yourself homeless.  You were living on the streets and sleeping in parks.  Your drug use significantly increased during this period, and you engaged heavily in cannabis and you also took Xanax and Valium.  This escalation coincides with you committing criminal offences.  Your counsel submitted that during this period, you had no income and committed burglaries.  This is reflected in your prior criminal history.  You were subsequently arrested and you were sentenced to a period in custody in February 2019.

22After your release from custody, you lived with your brother for a period of five months.  You later returned to live with your parents in Kilmore.  During this time, you assisted your family by completing work on their hobby farm.  You also picked up handyman tasks via Air Tasker, as a means of employment.

23In November 2020, you again found yourself homeless.  Your counsel submitted that you were struggling to cope with your personal and mental health issues and had resorted to using illicit drugs and binge drinking.  Around this time, your parents separated, which would have undoubtedly been a tumultuous period for you.

24During your assessment for a community corrections order, you reported that the catalyst for your behaviour was the distress you experienced at being blamed by your father for your parents’ divorce.  You reported that you felt you had ruined your family and you turned to drugs and alcohol in order to cope.

25Upon finding yourself homeless again, you got in touch with a previous associate of yours who owed you money.  Believing that you were assisting him so that he would be in a position to repay you, you agreed to participate in this endeavour.  In your drug affected haze, you blindly accepted the things he told you.  Your counsel submits that this associate gave you the knife and you believed it was for your protection.  You maintain that you did not intend to hurt anyone and you were shocked when you realised you had caused Mr Shah harm.  In a state of panic, you telephoned your mother and upon understanding that police were involved, you voluntarily handed yourself in.

26

Your parent’s divorce was finalised in February 2021.  Your mother,

Hannah Benchaban, remains supportive of you and wrote a letter to the court in anticipation of the plea hearing, which was tendered as (Exhibit 2) on the plea.  You have maintained regular contact with her during this period in custody.

Childhood exposure to violence

27Your counsel submitted that for your entire upbringing, you experienced long term abuse by your father.  You described to psychologist Ian MacKinnon, that your dad was violent to everyone.  You described 'torture, from slapping, to hitting us with things, to broom sticks, to extension cables'.  You described this as normal in your culture.

28In her letter of support, your mother described the physical and emotional abuse inflicted on you (and the rest of the family) by your father; that he would punish you severely by punching you until you bled or lost consciousness.  She states that you were all frightened of him.  He did not permit any of you to socialise or make friends.  She notes that your diagnosis of ADHD, Attention Deficit Hyperactivity Disorder, when you were nine years old, but that she felt unable to help you due to her lack of English.  Your mother describes her own experiences of abuse and the impact that this had on both her physical and mental health.  Ms. Benchaban describes the way in which your father would control the family financially, to the point where she was prohibited from buying food.

29The High Court in Bugmy v The Queen[1] noted the relevance of circumstances of deprivation and abuse occurring during an offender’s formative years.

[1] (2013) 249 CLR 571.

30Your counsel has submitted that your background and exposure to extreme violence is relevant in explaining your recourse to illicit drug use, which is linked to the offending.  Pursuant to principles in Bugmy, an offender’s background of deprivation is relevant because his moral culpability for the particular offence is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

31Here the abuse that you experienced, is said to explain and to some extent, contribute to your criminal behaviour.  I note that prior to this offending, whilst you had engaged in criminal activity, you had not been charged with any offences involving direct violence.  I accept that the principles as set out in Bugmy have application here.  As the High Court said:

'The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences'.

32Your exposure to extreme violence during your formative years, which carried through into adulthood, is relevant and I take the circumstances of your upbringing into account.  There must be a reduction in your moral culpability for the offending and to some degree, a reduction in the need for any sentence to reflect the sentencing purpose of general deterrence.  The matters raised in my view, fall more appropriately within this sentencing consideration, rather than upon the application of mercy, upon which your counsel has relied.

33You have used alcohol and drugs as a way of coping with feelings of depression and when you have felt overwhelmed.  Clearly, your future prospects of rehabilitation will be significantly diminished if you were to return to using alcohol and drugs.  You have managed to remain drug-free whilst in custody and to this extent, a sentence which would enable you to continue to seek assistance in managing your reliance on drugs and alcohol, is desirable.

Mental health

34A psychological report was prepared on your behalf by consultant psychologist Ian MacKinnon (Exhibit 1).  In his view, you meet the clinical criteria for Mixed Anxiety and Depression Disorder.  He considers the contributing factors for this diagnosis include socio-economic and cultural issues associated with your family’s migration from Pakistan, your father’s persistent violent and emotional abuse of you, the significant bullying you suffered at school and disruptions associated with your multiple change of addresses and schools.  Although you have indicated you believe you suffer from Attention Deficit Hyperactivity Disorder, Mr MacKinnon did not have enough information to support such a diagnosis.  Mr MacKinnon also considers that you are suffering from Poly Substance Abuse Disorder.

35In his view, this condition, along with your Mixed Anxiety and Depression Disorder, made a significant contribution to your offending by degrading your ability to apply sound reason and good judgment.

36Your counsel submits that as a consequence of your mental health conditions, that the principles enunciated in R v Verdins[2] are enlivened.  Specifically, it is submitted that your moral culpability was reduced as a consequence of your Poly Substance Abuse Disorder and Mixed Anxiety and Depression Disorder.  Your counsel submits that limbs 1 to 5 of Verdins are enlivened.  The prosecution concedes that each of these limbs are enlivened; and concedes that there should be some moderation of specific and general deterrence, but submits that general deterrence is not eliminated, given the serious nature of the offending and due to there being some planning involved.  I have taken the view that limbs 1 to 5 of Verdins are enlivened and accordingly, I have moderated your sentence in light of the application of those principles.

Mandatory sentencing regime.

[2] (2007) 16 VR 269

37Armed robbery where a victim has suffered an injury as a direct result of the offence and/or where the offender is in company with one or more other persons, is a Category 2 offence under s3(1) of the Sentencing Act 1991. The court must make a custodial order for Category 2 offences, unless one of the exceptions under s5(2H) of the Act has application. Your counsel has submitted that you fall within three of the exceptions under s5(2H). Although your counsel referred me to a number of the exceptions, in my view the only applicable exception is pursuant to s5(2H)(c):

'The offender proves on the balance of probabilities that at the time of the commission of the offence, he or she had impaired mental functioning, that is causally linked to the commission of the offence and substantially and materially reduces the offenders culpability'.

38Given that the prosecution concede that Verdins principles 1 to 5 have application, the prosecution also concedes that the exception under s5(2H)(c) is established.  I agree.  Accordingly, as a result of you falling within one of the criteria set out, a combination sentence is available.

Plea of guilty

39I take into account your plea of guilty.  This was a plea entered at the earliest opportunity, and it is of significant utilitarian value.  You have spared the community the expense of a trial and importantly, you have spared the victim the ordeal of having to give evidence.  Your plea demonstrates a willingness to facilitate the course of justice.  It is also some evidence of remorse.

40Your plea of guilty has an additional utilitarian value, given that it was entered during the Covid-19 pandemic, where the court has faced a substantial backlog of trials resulting from the suspension of jury trials.  Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[3] your guilty plea is worthy of greater weight in mitigation, than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects.  As a consequence, your plea of guilty should result in a perceptible amelioration of sentence.  You are entitled to a substantial discount in sentence, both for your plea of guilty itself and taking into account that this plea of guilty has occurred during the Covid-19 pandemic.

[3] [2021] VSCA 169.

Time on remand during Covid-19 pandemic

41You have been in custody since your arrest on 30 December 2020.  All of your presentence detention has been served during the Covid-19 pandemic.  You have been in quarantine due to prison placements and transfers, and have experienced lengthy intermittent periods of lockdown and isolation.  This includes periods of total 24-hour lockdown and no telephone calls.  You have also spent considerable time in protection.

42I accept that your time in custody has been made more difficult as a result of the restrictions relating to Covid-19, not to mention more stressful.  You have been unable to receive any visitors.  Whilst there has been limited opportunities to participate in programs, to your credit, you have been able to undertake a number of courses, as well as engage in studying English and mathematics.  You are currently working in custody in the kitchen.  I take all of these matters into account.

43Your positive progress whilst in custody and your efforts to better yourself, are also relevant when considering your prospects of rehabilitation.

Remorse

44You expressed your remorse to psychologist Ian McKinnon.  You said:

'One hundred percent I’m sorry.  I handed myself in the next day, as soon as I sobered up, woke up.  I pleaded guilty.  We probably emotionally scarred the victim.  I can’t undo that.  I’m sorry.  If someone had done that to my family, my mother...I live with that every day.  I feel like I broke one of my biggest moral codes'.

45In her letter, your mother stated that you regret your behaviour.  I accept that you are remorseful.  This is also reflected in the fact that you handed yourself into police, took responsibility for your offending and it is reinforced by your plea of guilty.

Prospects of rehabilitation

46You are still are relatively young and as such, greater weight should be given to rehabilitation.  Your plea of guilty and your remorse bodes well for your prospects of rehabilitation, but I am conscious that you have been assessed as a high risk of reoffending.  In my view, much will depend upon your ability to remain free from drugs and to seek appropriate psychological treatment.  If you can address your issues and without resorting to drugs, I consider your prospects to be good.

47Your rehabilitation must also be balanced with other sentencing considerations.  It is important that the sentence imposed acts a deterrent to you, given that you have relevant prior dishonesty related matters.  It must also deter others who might be inclined to act in the same way, from committing such offences.  The community must understand that this offending will not be tolerated.

Nature and gravity of the offending

48Objectively, the offending is serious.  Whilst I accept that you were affected by drugs and conducted yourself in this way, so as to obtain money and deal with your homelessness, nonetheless, your offending must have been extremely upsetting for your victim.  You participated in robbing Mr Shah of valuable property and did so in a most frightening way, and in his own home, where he is entitled to feel safe.  There was a degree of preplanning for the robbery.  I accept however, that you were not the principal in this offending.

49You armed yourself with a knife, which you used to ensure your escape.  In the course of your dreadful behaviour, Mr Shah was injured.  Notwithstanding this, I accept that your violence towards Mr Shah was unplanned and appears to have been a relatively spontaneous act, whilst you were substance affected.  Ultimately, you did not receive any benefit from the robbery and the gold and silver bars and coins have never been recovered.  Nevertheless, I view your overall offending as very serious and I denounce your conduct.

Relevant sentencing factors

50I am required, pursuant to the Sentencing Act 1991, to take into account various matters when formulating an appropriate sentence in your case.  These include the seriousness of the offending, your culpability for the offending, the effect of your offending had on the victim and your personal circumstances.

51The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  There is a need to protect the community from those who carry out the sort of offences for which you have pleaded guilty.

52The sentence I pass must balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society.

53Just punishment and denunciation must also be given primary consideration in my instinctive synthesis.  I have also had regard to totality, but note that the offending here on Charges 1 and 2 arises from the same set of circumstances.  I must also have regard to current sentencing practices.

54Your counsel submitted that having regard to all of the matters in mitigation, a combination sentence would be within range.  Ms Hogan, on behalf of the Director of Public Prosecutions indicated that the prosecution shared this view. Accordingly, you were assessed and you have been found suitable for a community corrections order.

55As was made clear in the guideline judgment of Boulton v The Queen[4], in an appropriate case, such an order does provide a flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together.  And it is the case that such an order can be punitive and achieve deterrence.

[4] [2014] VSCA 342

56Overall, I have come to the conclusion that a combined sentence is appropriate, and I have made the conditions of your order, so as to address your particular circumstances, the causes of the offending, and in order to ensure that you have appropriate supports to minimise your risk of further reoffending.  I am troubled by Mr Enriquez’s view that you have been assessed as a high risk of re-offending.

57I have largely accepted the recommendations made by Mr Enriquez in his community corrections order assessment outcome report dated 11 March 2022.  A mental health assessment was also conducted by the Mental Health Advices and Response Services.  Brenda Hughes, senior registered nurse recommends that mental health conditions be mandated on your corrections order; to access a mental health care plan for psychological treatment to address your trauma, your violent childhood experiences, your depression and social anxiety.  I have adopted those recommendations.

58Although unpaid community work was recommended, I have determined that all unpaid community work can be completed through your attendance at counselling and rehabilitation.

Sentence

59Balancing all of these considerations as I must, I therefore sentence you as follows:

60On Charges 1 (armed robbery) and 2 (recklessly causing injury), you are convicted and sentenced to 16 months imprisonment to be followed by a community corrections order of 18 months duration, with supervision, special conditions for treatment and rehabilitation for drugs, mental health and programs to reduce re-offending.

61I declare 447 days presentence detention.

62The community corrections order conditions will be as follows:

·        You are to be under the supervision of a community corrections officer for a period of 18 months;

·        You must perform 50 hours unpaid community work;

·        You must undergo treatment and rehabilitation- including testing for drug use as directed by Corrections';

·        You must undergo treatment and rehabilitation for mental health, as directed by Corrections;

·        You must engage in treatment and rehabilitation with respect to programs to reduce your re-offending;

·        Fifty hours of treatment and rehabilitation may count towards the unpaid community work.  What that means is if you participate in treatment and rehabilitation as directed, then that time that you spend doing that, that 50 hours will go towards the unpaid community work;

·        You must attend Seymour Community Corrections Centre within two clear working days of your release from custody.

Core conditions

63There are a number of core conditions that are attached to any community corrections order:

·        Firstly, you must not commit any other offence punishable by imprisonment during the next 18 months.  This includes the use of illegal drugs.

·        You must comply with any and all obligations or requirements of Corrections;

·        You must report to and receive visits from Corrections;

·        You must report, as I have said, to your nearest designated community corrections centre, which will be Seymour Community Corrections Centre within two clear working days of your release from custody.  You must let a Community Corrections officer know within two working days of any change of address or job.;

·        You must not leave Victoria without first getting permission and you must obey all lawful instructions from Corrections.  So these are the mandatory core conditions that attach to any community corrections order, in addition to the particular conditions that I have imposed. 

s6AAA Sentencing Act

64I make a declaration pursuant to s6AAA of the Sentencing Act, that but for your plea of guilty, I would have imposed a term of imprisonment of three years to serve with a two and a half year period, non-parole period.

Ancillary orders

65Finally Mr Maafa, I order that you pay compensation in the amount sought namely $38,977.48.