Director of Public Prosecutions v Majeed

[2024] ACTSC 281

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Majeed

Citation: 

[2024] ACTSC 281

Hearing Date: 

11 September 2024

Decision Date: 

12 September 2024

Before:

Christensen AJ

Decision: 

(1)    On the charge of aggravated robbery by way of joint commission (CC 2023/8831), the offender is convicted and sentenced to 29 months’ imprisonment, reduced from a period of three years on account of the plea of guilty. The period is to commence on 10 November 2023 and end on 9 April 2026.

(2)    The nonparole period is one of 15 months and 28 days, commencing on 10 November 2023 and ending on 9 March 2025.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – stealing a vehicle with threatened use of a knife – parity – guarded prospects of rehabilitation – period of imprisonment imposed – moderately early nonparole period

Legislation Cited: 

Criminal Code 2002 (ACT) s 310

Cases Cited: 

Barrett v The Queen [2016] ACTCA 38

DPP v Longmore [2024] ACTSC 278

DPP v XK [2023] ACTSC 141

Hogan v Hinch [2011] HCA 4; 243 CLR 506

R v Marshall (No 2) [2022] ACTSC 102

R v Rowland; R v Herceg [2016] ACTSC 192

R v Serena [2019] ACTSC 231

Parties: 

Director of Public Prosecutions ( DPP)

Saleh Majeed ( Offender)

Representation: 

Counsel  

M Fieldus ( DPP)

N Deakes ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Number:

SCC 58 of 2024

CHRISTENSEN AJ: 

Introduction

1․Saleh Majeed is to be sentenced for an offence of aggravated robbery by way of joint commission contrary to s 310(a) of the Criminal Code 2002 (ACT). The offence carries a maximum penalty of 25 years imprisonment, 2500 penalty units, or both.

Offending

2․The offending involves Mr Majeed and a co-offender, Matthew Longmore, stealing, with threatened force, a red Volkswagen Golf GTI from the backyard of a residence in Florey.

3․The owner of the vehicle was storing it at the residence, behind a fence and gate. The location where the vehicle had been stored was known only to the owner of the vehicle, the owner of the residence, her daughter, and a co-accused, Natalia Landon. Ms Landon was a friend of the vehicle’s owner, and was staying with him at the time, and was also known to Mr Longmore.

4․In the days leading up to the offending, Mr Longmore and Ms Landon engaged in communications involving Ms Landon securing the keys for the vehicle from the owner. Ms Landon also became aware that the owner of the vehicle had retrieved the battery from the vehicle. Further, Ms Landon engaged in communications with the owner of the house which, in combination with other evidence subsequently obtained, suggests that Ms Landon was motivated by spite against the vehicle’s owner.

5․On 6 June 2023 from about 10am, there were message exchanges between Mr Longmore and Ms Landon that led to them meeting with Mr Majeed at an address in O’Connor at about 11:30am. Ms Landon provided Mr Majeed and Mr Longmore with the keys to the vehicle.

6․Shortly before 12:30pm, the owner of the residence looked out of her window and saw the vehicle being reversed out of her yard onto the driveway. It was being driven in an aggressive manner and she realised the driver was not the owner.

7․The owner of the residence, being a victim of the aggravated robbery, ran out of her house and came to stand in front of the vehicle at the end of the cul-de-sac. The vehicle then stalled. The victim was able to make observations of the driver that established him to be Mr Longmore.

8․Mr Majeed then approached the victim where she was standing in front of the vehicle. He was wearing a black jacket and balaclava. He reached into a satchel that he was carrying and produced a knife of about 20 centimetres in length with a brown handle. Mr Majeed began swinging the knife back and forth as he approached the victim, with him described as swinging it in an “erratic and panicked manner”.

9․The victim was concerned she would be wounded if she did not move away, and she began backing away. Mr Majeed followed her halfway back to her driveway before he ran back to the vehicle and got into the passenger seat. The vehicle left. The victim contacted the owner of the vehicle.

10․During the early afternoon, phone numbers associated with the co-offenders Mr Longmore and Mr Majeed were connecting with cell towers in a number of suburbs, evidencing they remained in proximity to each other.

11․The vehicle came to be recovered on 10 June 2023 in the communal carpark of a unit in Coombs. Mr Longmore was proximate to the vehicle at the time. The vehicle had been painted, and there was some damage caused to a window. Forensic examination of the vehicle resulted in a fingerprint of Mr Majeed being located on the rear-view mirror.

Assessment

12․As observed during the sentencing of Mr Longmore (DPP v Longmore [2024] ACTSC 278 (DPP v Longmore)), any offence of aggravated robbery is serious. There were particularly serious aspects of the offending here in that it occurred proximate to the victim’s home, the property stolen involved a valuable item, and it was brazen conduct committed in the middle of the day at a residential address when community members were likely to be exposed to the offending. Further, there was an aspect of planning, albeit Mr Majeed’s role in that planning was limited.

13․There were two offenders, establishing the aggravated form of the offence, as well as there being a form of aggravation in that one offender, Mr Majeed, was armed. The particular of the charge is that the threat to use force was done with the intention of escaping the scene. The form of offensive weapon used for that purpose was a serious one, being one that was capable of doing serious harm.

14․As found in DPP v Longmore, it appears that there was not necessarily an intention to use a weapon to steal the vehicle, but Mr Majeed plainly contemplated this possibility by having the knife available for immediate use, and in his conduct of swinging the knife as he approached the victim. The fact that this was done in an “erratic and panicked” manner was emphasised on behalf of Mr Majeed, and I accept that his manner of swinging the knife arose in circumstances of concern in response to being confronted. There was an implicit threat not accompanied by verbal threat, but even so, the knife was relatively large and was swung during a persistent approach by Mr Majeed.

Victim impact

15․This part of the offending was, unsurprisingly, clearly frightening for the victim, who ran back inside her home. The entire circumstance of the aggravated robbery would have been frightening, particularly so given that the victim was made to feel unsafe and vulnerable at her own home. The impacts of the offending are likely to be long‑standing.

16․The owner of the vehicle also experienced the inconvenience, frustration, and distress that would have arisen from the taking of the vehicle. He was without the vehicle for at least a period of four days, and when returned, it had been damaged. Mr Majeed is not though criminally responsible for that damage.

Subjective circumstances

17․Mr Majeed is currently 25 years of age and was aged 24 years at the time of the offending. He was born in Iraq, one of seven children to his parents. When he was approximately two years of age he moved to Australia and was raised in Canberra.

18․The language spoken in the family home is primarily Arabic. Mr Majeed assists his parents with language interpretation in the community, and otherwise provides care to his parents, cooking for them, taking them to appointments, and caring for the family home. He describes his mother as “my rock” and he has a close and loving relationship with her. His relationship with his father is improving after a challenging period (see below at [21]-[22]). He intends to live with his parents when in the community.

19․Mr Majeed completed Year 11, and then entered the work force to assist in supporting his family financially. He commenced employment as an apprentice painter and decorator and has maintained consistent employment when in the community. Most recently, he has been self-employed in his own painting and decorating business, which he intends to resume upon release from custody.

20․Mr Majeed has no children and is currently single. He describes himself as a social person, but advises that he is not engaged with any pro-social activities or groups. He claims that his closest friends are predominately pro-social.

21․There are not currently any significant concerns as to his mental health, but there are concerns with respect to substance use. He has used substances since he was in year 8 of high school, with his substance use including cannabis, cocaine, MDMA, and methamphetamine. His use of the latter of these commenced when he was 19 years of age, and he reports having become “instantly hooked”. He describes it as his “demon” that caused him to become very negative and to withdraw from his family for a period of years.

22․From the age of 23 years, he began reducing his use of illicit substances and came to focus on his family and business as a mechanism to avoid substance use. However, at the time of the offending, he was “in a bad place”, being homeless after falling out with his parents and returning to substance use. Specifically, at the time of the offence, he was under the influence of substances, having used them following a personal difficulty that he experienced. This provides a level of explanation for the offending, but not mitigation.

23․While in custody, where Mr Majeed has been since 11 October 2023, he claims to have not used substances. He has commenced the Solaris Program. He tested negative for substances when tested in October 2023, but in June 2024, he refused to provide a sample for urinalysis. His conduct otherwise in custody is reported to have involved him being subject to formal disciplinary action on fifteen separate occasions.

24․Such negative behaviours are reflected in his criminal history, which is one that removes a prospect of leniency in the sentence to be imposed. While not previously convicted of an offence as serious as the offence the subject of the current sentence, he has been fined in NSW for minor drug and driving offences in 2022. In the ACT, he has been, since 2017, sentenced for offences that include assault, driving, weapons, and offending involving a disobedience of police direction. He has been previously fined, placed on good behaviour orders, an intensive correction order, and imprisoned.

25․Further, and of aggravation in determining the appropriate sentence, is that Mr Majeed was on conditional liberty at the time of the offending, being subject to bail imposed in the Magistrates Court.

26․Mr Majeed is assessed as a high risk of general reoffending. While he has some protective factors available, he has criminogenic risks and poor compliance with community-based orders. The pre-sentence report describes his offending behaviour as appearing to reflect a lack of impulse control and emotional regulation. If he was to engage meaningfully with interventions as to alcohol and drugs, mental health, and anger management, his risk of reoffending may reduce over time.

Plea of guilty and remorse

27․Mr Majeed entered a plea of guilty in the Supreme Court at the criminal case conference stage. A reduction in the order of 20 per cent is appropriate.

28․As to his offending behaviour, Mr Majeed expressed to the author of the presentence report that he had “no intention to harm anyone at all” and that he deeply regrets his decision to participate in the offending behaviour. He is described as having expressed regret and remorse, and disappointment for allowing himself to be convinced to participate in an activity he had known was wrong. Mr Majeed is reported to have stated that after this offence, “I realised I had to turn my life around”.

Current sentencing practice

29․The prosecution referred the Court to a number of authorities submitted to be of comparative value, although appropriately acknowledged the limitations that such authorities provide: R v Marshall (No 2) [2022] ACTSC 102 (Marshall (No 2)); Barrett v The Queen [2016] ACTCA 38 (Barrett); R v Serena [2019] ACTSC 231 (Serena); and DPP v XK [2023] ACTSC 141 (XK). Similarly, on behalf of Mr Majeed, the Court was referred to Barrett; Marshall (No 2); Serena, XK, and R v Rowland; R v Herceg [2016] ACTSC 192 as to current sentencing practice with respect to this form of offence.

30․While acknowledging the limitations that such authorities provide, the authority of Marshall (No 2), in which a sentence of 3 years was imposed for an aggravated robbery of a vehicle, provides the most factually comparative authority, but the threat inflicted on the victim was more serious. The offender there had a reduced moral culpability.

31․These authorities otherwise emphasise the important role of deterrence from offending of this type, as well as the need to denounce the conduct and make the offender accountable for his actions.

Parity

32․The co-offender in the actual taking of the vehicle has been sentenced: DPP v Longmore. Mr Longmore was sentenced with respect to three offences arising from the incident, being the aggravated robbery offence, as well as an offence of property damage of the vehicle, and aggravated dangerous driving as a repeat offender. A sentence of 2 years imprisonment, reduced to 18 months on account of the plea of guilty, amongst a total sentence of four years imprisonment for all offences the subject of Mr Longmore’s sentence, was imposed. Mr Longmore was ordered to serve the sentence by way of a drug and alcohol treatment order.

33․In addition to the distinction of charges between the offenders, Mr Majeed’s conduct in the aggravated robbery was different to that of Mr Longmore. Whilst Mr Majeed was not involved in the full planning of the offending, it was Mr Majeed who had on him a knife, produced it, and swung it towards the victim. Further, Mr Longmore demonstrated a strong and genuine motivation to rehabilitate, and a capability to do so, as well as there being a basis upon which his moral culpability was reduced.

34․In short, Mr Majeed’s conduct was more serious, and his subjective circumstances less compelling. A sterner sentence for Mr Majeed is warranted.

35․The further co-offender, Ms Landon, is yet to be sentenced.

Presentence custody

36․Mr Majeed has been in custody since 11 October 2023, a period of time that includes having served a short sentence of imprisonment imposed by the Magistrates Court. He has been in custody solely in relation to the current charge for two periods, from 11 October 2023 to 21 November 2023, and from 22 December 2023 to 12 September 2024. A total of 308 days will be taken into account as time already served on the sentence.

Consideration

37․It is difficult to reconcile the person that Mr Majeed is for his family with his offending behaviour. I expect his parents, who steadfastly support him and were present in court, are very disappointed in his behaviour, both in terms of his substance use and his offending.

38․The Court shares their likely disappointment. Mr Majeed is someone who has been given opportunities in the past to avoid a life trajectory that involves engaging in offending behaviour and spending time in custody, but he is yet to embrace such an opportunity.

39․His capability to be a productive and valued member of the community is apparent by his care for his family, and his work activity. He is still a relatively young man, who demonstrates remorse and insight into his poor behaviour, and is someone who has experienced the deterrent effect of a lengthy period in custody.

40․It is clear that the seriousness of the offending warrants, having considered possible alternatives, that no penalty other than imprisonment is appropriate. Neither party submitted otherwise. It is also clear, having regard to the previous opportunities for community based orders which have not been embraced, and the resultant primacy of community protection in the sentencing exercise, that a deterrent sentence involving a nonparole period is appropriate.

41․Whilst the promotion of rehabilitation is a relevant sentencing purpose in any sentencing exercise, so too is protection of the community. I do accept the submission made on behalf of Mr Majeed that rehabilitation has a role to play, particularly because of the offender’s young age.

42․However, this does not ameliorate the role of community protection that arises here, a sentencing purpose that the prosecution appropriately emphasised. Even given that rehabilitation is ultimately the surest protection of the community (Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]), the guarded prospects of Mr Majeed’s rehabilitation are such that continued imprisonment and supervision by way of parole, for a lengthy period, is warranted.

43․The real determination becomes the term that is to be served before Mr Majeed is eligible for parole. That is, what the minimum period of imprisonment that justice requires to be served is. In all of the circumstances, I am satisfied that a moderately early nonparole period is one that will fulfill the purposes of sentencing.

Orders

44․For those reasons, the following orders are made:

(1)On the charge of aggravated robbery by way of joint commission (CC 2023/8831), the offender is convicted and sentenced to 29 months’ imprisonment, reduced from a period of three years on account of the plea of guilty. The period is to commence on 10 November 2023 and end on 9 April 2026.

(2)The nonparole period is one of 15 months and 28 days, commencing on 10 November 2023 and ending on 9 March 2025.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen.

Associate:

Date: