Director of Public Prosecutions v Mashu
[2022] VCC 1291
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 20-01614
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MESHIL MASHU |
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JUDGE: | HIS HONOUR JUDGE D SEXTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 June 2022 |
DATE OF SENTENCE: | 12 August 2022 |
CASE MAY BE CITED AS: | DPP v Mashu |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1291 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: False Imprisonment; Common Law Assault
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins (2007) 16 VR 269; Muldrock v R (2011) 244 CLR 120;
Piacentino v R [2019] VSCA 153
Sentence: 61 days’ Imprisonment
18-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms V. Katotas | Solicitor for the Office of Public Prosecutions |
For the Accused | Mr L. Gwynn | Melasecca Kelly & Zayler Criminal Law |
HIS HONOUR:
Introduction
1Meshil Mashu, you have pleaded guilty to one charge of false imprisonment which carries a maximum penalty of 10 years' imprisonment and one charge of common law assault which carries a maximum penalty of five years' imprisonment. You have also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail which carries a maximum penalty of three months' imprisonment.
2The circumstances of your offending were set out in the Summary of Prosecution Opening for Plea dated 27 May 2022, Exhibit 1 at your plea hearing. As confirmed by your counsel, that document contains the agreed factual basis of your offending upon which you will be sentenced.
3Your offending can be briefly summarised.
4Your offending took place on 22 December 2019 when you were aged 24. On the evening of this day, the victim in this matter who I will refer to as JS[1] met up with friends at about 6.40 pm at a car park in Craigieburn. He arrived in his 2018 Toyota Hilux vehicle. JS was with a number of other people. After about half an hour, another car arrived, followed soon after by a second car. The first car to arrive was a Nissan Pulsar and the second was a black Holden. Once the first car arrived, a number of men got out of this vehicle and approached JS. Once both cars had arrived, a total of around eight people had alighted from the vehicles and approached JS.
[1]The victim has been referred to as JS throughout this document to protect their identity.
5JS recognised one of the men, Angelo Odisho, who he had known from school. Mr Odisho, your cousin, is alleged by the prosecution to be the instigator of the offending that followed. In that regard, on 25 March 2021, I sentenced Mr Odisho on the charges of recklessly causing injury and kidnapping to a total effective sentence of two years and six months' imprisonment with a non-parole period of 18 months. Mr Odisho began to yell at JS saying “Fucking dog” and “It’s time to pay up”. A number of other threats were made by Mr Odisho. JS had borrowed $1000 from him in January 2019 and had paid that money back within a week.
6About four of the men, not including yourself or your co-accused Andrew Youkhanis, but including your cousin Mr Odisho, approached JS who was then in the front passenger seat of the car. The men punched JS through the open window whilst the remaining men stood and watched. Three friends of JS got out of the car and tried to assist, but Mr Odisho produced a folding knife and the friends stayed back. Two other unknown males produced knives as well.
7Another man who had been with JS - AM[2] - saw JS being punched by three or four people. AM recalled that JS was punched five to seven times by people who arrived in the car, including to the body and that JS was trying to fight back. AM heard people yell at JS that he was a, 'A fucking dog' and to, 'Pay up.'
[2]The witness has been referred to as AM throughout this document to protect their identity.
8As JS was manhandled into the Nissan Pulsar he could not defend himself. He resisted but was thrown into the car, in the middle of the back seat. Mr Odisho sat on his right and Mr Youkhanis sat on his left. You were in the driver's seat driving the car. The car drove off. Your conduct in this regard forms the basis of Charge 1 on the indictment, false imprisonment.
9Police obtained footage of what followed inside the vehicle. The footage which was played at your plea hearing on 22 June 2022 shows a clearly distressed JS with Mr Odisho holding the camera and speaking. At one point, Mr Odisho said to you “take me home to get the .22 so I can put one in his leg”. You replied “that’s too far, he’s not worth it”. JS was further hit in the car, this time by Mr Odisho and yourself.
10The car was driven by you to the car park of the Roxburgh Park Sporting field. On the way, Mr Odisho demanded $8,000 or he would take JS's car. JS said he did not have that money. Mr Odisho took the keys from JS's pocket. At the car park, Mr Odisho had JS fill out a VicRoads transfer form. JS filled it in with his name, although he was not the registered owner. Mr Odisho took the paperwork and said that JS needed to pay $8,000 in the next month.
11Mr Odisho, Mr Youkhanis and yourself then left JS in the car park and drove away. JS subsequently called his friend, AM, who came and took JS to the Royal Melbourne Hospital. At the hospital, JS called Triple Zero.
12As a result of the incident, JS had a cut under his eye, soreness to his jaw and the back of his neck, head and elbow. The injuries included an open wound to the face and bruising on the right side of the face, and a painful right thumb. The prosecution case is that you punched JS on two occasions after he was forced into the car. More generally you have, by your actions, assisted and encouraged the commission of the offending, Charge 1 on the indictment, false imprisonment and Charge 2 on the indictment, common law assault.
13At the time of your offending, you were subject to a grant of bail, the details of which have not been provided to me and your conduct in committing an indictable offence whilst on bail forms the basis of the related summary offence to which you have now pleaded guilty.
14Following the involvement of police, fingerprints were obtained from the Nissan Pulsar matching you, which were located on the exterior driver's window and front centre bonnet. You were arrested and interviewed by police on 10 January 2020. It is fair to say that your false denials of any involvement in this matter, including referring to JS as 'a liar,' do you no credit.
15You were remanded into custody following your arrest on 10 January 2020, and you were granted bail 61 days later on 11 March 2020. You have been on bail since this time.
16No Victim Impact Statement was provided by JS, though it can be readily accepted that he was significantly adversely impacted by your offending. The footage from inside the Nissan Pulsar that you were driving, clearly shows JS to be highly distressed in circumstances where he is being held against his will and treated in an extremely demeaning manner.
Nature and Seriousness of the Offending and your level of Responsibility and Culpability for it
17The seriousness of your offending is reflected in the relevant statutory maximum penalties, 10 years' and five years' imprisonment respectively with regards to the charges on the indictment. Accentuating the seriousness of your offending was the fact that it occurred in company, no doubt increasing the degree of fear and helplessness experienced by your victim. JS was clearly injured in the footage and as I have stated, was clearly in a distressed state. Whilst in your presence, Mr Odisho verbally disparaged JS, calling him 'a rat' and repeatedly demanding that he call himself a dog.
18In all the circumstances, I regard this as a concerning example of the crime of false imprisonment. Likewise, for similar reasons, I regard the common law assault as a concerning example of this particular offence. In contrast to your offender Mr Youkhanis, you were directly involved in the physical assault upon JS once he had been forced into the car, punching him twice. Your involvement therefore exceeds that of Mr Youkhanis and involves directly assaulting your helpless, outnumbered and falsely imprisoned victim.
19In terms of your level of responsibility and culpability, your counsel did not submit that your culpability was lessened due to any mental impairment pursuant to the Verdins' principles.[3] As I have stated, your involvement extended to direct physical contact with your victim enhancing your level of culpability. Whilst on the one hand your reply to Mr Odisho when he suggested taking JS home to 'get the .22 so I can put one in his leg', with you saying 'That's too far, he's not worth it', could be seen as de-escalating Mr Odisho's clearly menacing sentiments. Your comment was, nevertheless, disparaging of your victim, and I doubt very much that it gave him much comfort in the circumstances.
[3] R v Verdins (2007) 16 VR 269.
20Your counsel indicated that your involvement in the offence came about as a result of your association at the time with your cousin, Mr Odisho, and your negative peer associations as a consequence of your then-dependence on cocaine and cannabis. Whilst these matters may provide some context for your involvement in your offending, they certainly do not excuse it.
21By virtue of your criminal history which includes prior findings of guilt for unlawful assault, you must have known of the gravity of your violent conduct on this occasion. In all the circumstances, I regard your culpability as significant. You knowingly engaged in group violence against your helpless victim. For reasons that escape me, you appear to still have difficulties appreciating your victim's predicament and you have shown only minimal remorse. For the sake of clarity, your conduct was completely inexcusable. You should be ashamed of yourself.
Personal Circumstances
22You are now 27 years of age. You were born in Baghdad, Iraq, into a Chaldean Catholic family. You are the youngest of five children. You came to Australia with your family in 2006 when you were aged approximately 10, your family fleeing Iraq, living in a refugee camp in Syria for a year before arriving in Australia.
23You were, it seems, exposed to atrocities in Iraq on numerous occasions. By way of example, an aunt who was then a news reporter, was murdered in 2004. Notwithstanding your young age, you apparently have vivid memories of the collapse of Iraq following the war. You missed significant schooling and endured many air raid warnings, forcing your family into the basement of the family home on many occasions. Due to your family's Christian heritage, they were apparently targeted and you have seen many things that a child should not endure.
24Your parents are both Disability Support pensioners. You report being very close with your family including all of your siblings.
25Notwithstanding a somewhat difficult integration into Australia with your language difficulties, you attained education to Year 10 level at Broadmeadows High School. You then completed 12 months of a carpentry apprenticeship having left school. You then worked as a plasterer with your brother, Azar, between the ages of 18 and 24 before caring for your parents for a period. Since your release from custody you have been assisting in your brother's car wash.
26You reported a somewhat problematic drug-use history. You first experimented with cannabis from the age of 19 and your use quickly escalated to daily use until your arrest for these current matters. Within a similar time frame, you started experimenting with cocaine and your use of this substance also quickly escalated to using every second day. This coincides with the period of two to three months before your offending took place. From this time, your use of cocaine escalated within the context of negative peer associations, to daily use of approximately one to two grams. Whilst you maintained employment then with your brother, your use of cocaine cost you nearly all of your wages.
27Your reported to consultant psychologist, Luke Armstrong, as evidenced in his report dated 30 May 2022, that in the month leading up to the offending, you were using cocaine every day and had in fact used cocaine on the day of the offending. Mr Armstrong opines that you present with an extremely low IQ of 67 and that consistent with this assessment, you would have a somewhat impaired appreciation of risk in social situations, and immature social judgment for your chronological age. According to Mr Armstrong, you were strongly influenced by a peer group, ingratiated in drug abuse with which you followed suit. According to Mr Armstrong, your extremely low IQ made you vulnerable to negative influence.
28As I earlier indicated, you were remanded in custody upon your arrest on 10 January 2020 and remained in custody for 61 days until being granted bail on 11 March 2020. As is clear from your criminal history, this was your first time in adult custody. Notwithstanding that this time period either pre-dates the arrival of COVID-19 or at the very least, covered the very early stages of COVID-19 in Victoria, I have no doubt that this was a difficult time in custody for you. According to your counsel, this time proved to be a salutary lesson for you.
29You have been on bail since 11 March 2020 and I was informed that there are no outstanding matters. This constitutes an extended period on bail for a young person, and your compliance with bail conditions for this period augers well for your prospects of rehabilitation. I was informed, and accept that you have ceased your negative peer associations since your release from custody, including contact with Mr Youkhanis and Mr Odisho. You have continued to reside with your family who have, it seems, rallied around you to support your progress whilst on bail. Having withdrawn whilst in custody, I was informed that you have refrained from illicit substance use and you have been determined to reform and not let your parents down with regards to your previous lifestyle and offending behaviour.
30I note that your sister supported you in court at your plea hearing, and your parents likewise supported you remotely. Father Mina George, Parish Priest at Our Lady of Perpetual Help Chaldean Catholic Church, provided a supportive letter dated 2 June 2022, tendered at your plea hearing and marked ‘Exhibit M3’. According to Father George, you have made every effort possible to change and have become more involved in your church community.
Sentencing Factors
31The Sentencing Act 1991 requires me to have regard to various factors, purposes and principles when formulating an appropriate sentence in your case. I have already referred to the relevant maximum penalties, the nature and seriousness of your offending and your culpability for it, and your previous character. I have also had regard to current sentencing practices as just one of the relevant factors in formulating an appropriate sentence. Clearly, previous sentences for offending of this nature have involved sentences of imprisonment where appropriate.
32Your plea of guilty warrants a mitigatory allowance in sentencing. As the chronology attached to the Summary of Prosecution Opening for Plea makes clear, the procedure or chronology involving yourself, Mr Youkhanis and Mr Odisho is rather complicated. Whilst your matter did not resolve until 28 February 2022, by which time a contested committal had proceeded and, as I understand it, your victim had been cross-examined, your matter resolved in the context of the more serious charge of kidnapping being withdrawn. In those circumstances, your plea must, in my view, still be seen as a somewhat early plea warranting a discount given the changed legal terrain as I have described it. Your victim was spared the trauma of being cross-examined at trial and the community and the court have been spared the cost and delay associated with a trial, particularly given the catastrophic impact of COVID-19 on the administration of justice and in particular, the extreme backlogs within the courts. The utilitarian benefit of your plea of guilty is enhanced, warranting a significant mitigatory allowance.
33Whilst a mitigatory allowance is warranted by virtue of your plea of guilty, the same cannot be said, in my view, on the issue of remorse. Save for a reference to you being happy that you got locked up, as being arrested cleaned you up, the report of psychologist Luke Armstrong did not contain any clear articulations of remorse on your part.[4] To a degree your low IQ and cognitive deficits may impact upon your ability to appreciate the impact of your behaviour on your victim.
[4]Page 2, report of Mr Armstrong.
34However, of concern, in a recent Extended Pre-Sentence Report from Corrections with regard to your suitability for a Community Correction Order, the author indicated that you expressed little to no remorse for your victim and deflected blame to your co-offenders. Indeed, such sentiments appear disturbingly consistent with your police interview.
35I have already referred to your time in custody with regard to this matter. In my view, any consideration of your return to custody must take into account the impacts of COVID-19 on the custodial setting. As is now well known, COVID-19 has made time in custody considerably more onerous. There are increased restrictions with regard to freedom of movement, given the lockdowns experienced within the custodial setting. There are increased restrictions with regard to time out of a prisoner's cell, there are restrictions with regard to in-person visits, employment opportunities, educational opportunities and rehabilitative activities.
36For a considerable period of time now, approximately two and a half years, you have complied with bail and, it seems, gone some way to rehabilitate yourself given the absence of any outstanding police matters. You have stabilised in terms of residing with your family and working in your brother's car detailing business. I was informed today that you indeed have work lined up through a friend in the area of traffic controlling. You have a strong network of supports around you in the form of your family and your church. I have no doubt that this matter has weighed heavily upon you for the two and a half years, and it is to your credit that you have progressed positively within this period of time. Notwithstanding your insight and remorse difficulties, these matters auger well with regards to your prospects for rehabilitation.
37At the age of 27, and having offended at the age of 24, you remain a relatively young person and in formulating an appropriate sentence in your case, I have had due regard to the need for any sentence to facilitate your ongoing rehabilitation. Indeed, as I said at your plea hearing, it is a significant matter to contemplate removing a young person from the community in circumstances where they have progressed well for well over two years.
38The report of psychologist, Luke Armstrong, makes clear that whilst not formally diagnosed with an intellectual disability, you have borderline intellectual impairment. According to Mr Armstrong, you would present as a relatively young and especially vulnerable offender within the prison system with a heightened risk of exploitation by more sophisticated and calculated predators within the prison system.
39Consistent with the principles articulated in the High Court decision of Muldrock,[5] these matters have a considerable bearing with regard to the type of sentencing to impose in your case and, to a degree, the application of the important sentencing principle of general deterrence is somewhat moderated.
[5]Muldrock v R (2011) 244 CLR 120.
40In formulating an appropriate sentence in your case, I have considered the parity principle which encompasses the notion that equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes.[6]
[6]Piacentino v R [2019] VSCA 153 at [43].
41Whilst the main offender, Mr Odisho, received a sentence of imprisonment with a non-parole period for the offending, his role was clearly more significant than yours, and he was sentenced in relation to charges of kidnapping and recklessly causing injury. Likewise, for the same offences as yours, I sentenced Mr Youkhanis on 11 July 2022 to a 15-month Community Correction Order. However, unlike you, Mr Youkhanis did not directly physically assault JS and, unlike you, Mr Youkhanis fell to be sentenced as a young person without a criminal record. In my view, therefore, there are significant grounds for disparity in sentencing between Mr Odisho, Mr Youkhanis and yourself.
Submissions and Sentence to be Imposed
42Your counsel submitted that, taking into consideration all relevant sentencing considerations, I should impose an appropriately tailored Community Correction Order. The prosecution submitted that a period of imprisonment combined with a Community Correction Order would be within range and, in relation to the 61 days by way of pre-sentence detention the prosecution did not seek to make a submission regarding the length of any period of imprisonment to be imposed as part of a combination sentence or otherwise.
43The sentence to be imposed in your case must, in my view, appropriately denounce your serious offending and it must serve to deter the broader community from engaging in such serious criminality. Given your relatively modest, but relevant criminal history which includes assault matters, any penalty I impose must also seek to deter you from a recurrence of such behaviour. The community must be protected from such serious criminality. Given your relative youth and the other positive mitigatory matters to which I have referred, any sentence must also seek to facilitate your rehabilitation to the degree appropriate.
44Having carefully considered all of the relevant matters and particularly given your 61 days in custody and your positive rehabilitative progress since being bailed, I have determined that the appropriate penalty in your case is a combination sentence involving a term of imprisonment not exceeding time-served, together with an appropriately tailored Community Correction Order. As I have stated, an Extended Pre-Sentence Report was commissioned with regard to your suitability or otherwise for a Community Correction Order. Whilst noting some concerns with regard to your lack of remorse and insight, you were ultimately found suitable with various conditions which, in my view, are appropriately recommended. In my view, notwithstanding your time spent on remand, there is a need for the Community Correction Order to have a punitive component to reinforce to you the gravity of your offending.
45In relation to the charges of false imprisonment and common law assault, together with the related summary offence of committing an indictable offence on bail, you are convicted and sentenced to 61 days’ imprisonment. Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 61 days has been served by way of pre-sentence detention. Furthermore, in relation to all three charges, you are convicted and ordered to undergo and complete a Community Correction Order. The duration of the Order will be 18 months. The Order commences today.
46The mandatory terms that apply to all Community Correction Orders are:
(a)You must not commit another offence for which you could be imprisoned during the time that the order is in force.
(b)You must comply with any obligation or requirement prescribed by the relevant regulations.
(c)You must report to, and receive visits from the Secretary or their delegate.
(d)You must report to the Community Corrections Centre nearest you, in your case being Coolaroo Community Correctional Services in Coolaroo, within two clear working days of the order starting.
(e)You must let a community Corrections officer know within two clear working days of you changing your address or job.
(f)You must not leave Victoria without first getting permission to do so from the Secretary or their delegate.
(g)You must obey all lawful instructions from, and direction of the Secretary or their delegate.
47In addition to the mandatory terms that apply to all Community Correction Orders you will be subject to the following conditions:
(a)You must perform 180 hours of unpaid community work over a period of 18 months as directed by the Regional Manager.
(b)I will order that 40 hours of the treatment and rehabilitation condition which I am about to announce satisfactorily undertaken, can be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
(c)You must be under the supervision of a Community Correction officer for the period of 18 months.
(d)You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager.
(e)You must undergo any mental health assessment and treatment that may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
(f)You must participate in programs and/or courses that address factors relating to the offending, as directed by the Regional Manager.
(g)You must not contact or associate with Mr Angelo Odisho and Mr Andrew Youkhanis for the 18 months of the Order.
48Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but been found guilty, I would have imposed a total effective sentence of 12 months' imprisonment followed by a Community Correction Order.
49Can I confirm with the prosecution there are no ancillary Orders sought in this case?
50MS KATOTAS: No, Your Honour, there are not.
51HIS HONOUR: Any ambiguities or anything missed as far as the Crown is concerned?
52MS KATOTAS: No, Your Honour.
53HIS HONOUR: Mr Gwynn?
54MR GWYNN: No. Thank Your Honour.
55HIS HONOUR: Thank you.
56Mr Mashu, before you attend to signing the Order, the only way that I can impose the Order is if you agree to comply with the Order itself, and the only way you can sensibly do that is if you understand what the Order's all about and what can happen if you breach it.
57Now, I think I have been pretty clear with regards to the conditions of the Order. It includes unpaid work, some of that can be done, so to speak, through the treatment and rehabilitation but the Order lasts for 18 months. It starts today. There are multiple conditions including that you be supervised by Corrections.
58If you fail, without reasonable excuse, to comply with this Order through, by way of example, re-offending through an offence punishable by jail or not complying with the conditions, not turning up to appointments, not doing what you're required to do with regards to the Order, not performing the unpaid work satisfactorily, you can be breached and the charge for a breach will make its way back, no doubt, before me.
59The maximum penalty for the charge of breaching the Community Correction Order is three months' imprisonment. More importantly for you, on a breach, I have the capacity to cancel the Order and re-sentence you on the original offences, and I will not now repeat to you the maximum penalties involved with regards to those offences.
60Be under no illusion, Mr Mashu, if you breach this Order and you come back before me, I will take a very dim view with regards to the matter. I do not want to hear on any subsequent occasion, “I did not quite understand what was involved in the Order”, “I was a bit confused”, “now I get it”. If you are confused, if you do not understand the Order, now is the time to raise that concern. Do you understand what is involved in the Order and what can happen if you breach it?
61OFFENDER: Yes, Your Honour.
62HIS HONOUR: Knowing all of that, do you agree to comply with the Order?
63OFFENDER: Yes, Your Honour.
64HIS HONOUR: All right, thank you. The Order will make its way down to you for signing now. Mr Gwynn, would you mind accompanying one of my Associates down to the dock.
65MR GWYNN: Yes.
66HIS HONOUR: Mr Mashu, you will get a copy of that document before you leave. Yes, I understand Mr Mashu that your family are on the video link at the moment. I am unsure as to how much they heard of the sentencing remarks. I will not see you again unless there is a problem, so I hope I do not see you again.
67OFFENDER: I won't be a problem, Your Honour.
68HIS HONOUR: Please remember what I have said to you, comply with this Order. If you come back before me, in all likelihood, it will not end well for you. Do you understand?
69OFFENDER: Yes, Your Honour.
70HIS HONOUR: Yes. Thanks.
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