Director of Public Prosecutions v Masoud

[2014] VCC 1942

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00537

DIRECTOR OF PUBLIC PROSECUTIONS

v

TABREZ MASOUD

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 November 2014
CASE MAY BE CITED AS:	DPP v MASOUD
MEDIUM NEUTRAL CITATION:	[2014] VCC 1942

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A Tabrez
For the Accused	Ms A Beech

1HER HONOUR:  Tabrez Masoud, you have pleaded guilty to one charge of armed robbery.  The facts underlying your offending are as follows.  In the early hours of 24 February 2013 a car driven by your co-offender, Omar Kakar, in which you were a passenger, drove in to the apron of a 24 hour Coles Express service station in Narre Warren North, which was manned by one attendant, Paogala Fernando.  You left the car first, walking to the closed sliding doors of the shop and adjusting your clothing to conceal your face.  You knocked on the doors and Mr Fernando opened them, letting you in.  By this stage Kakar was also out of the car and stayed near the driver's side.

2Inside the shop you produced a large kitchen style knife, which you held by your side and demanded Mr Fernando hand over money, he taking $170 from the cash register and putting it on the counter.  You picked it up and began to leave.  At no point did you ever hold the knife towards Mr Fernando.  At this point in time, Kakar arrived at the sliding doors, banging on them with his elbow.  Mr Fernando also let him in, possibly because he was trying to let you out.

3Kakar wore a hooded jumper and beanie and tried to conceal his face, came up to the counter and also produced a large knife, threatening Mr Fernando and demanding he hand over more money.  When told there was none he demanded cigarettes and Mr Fernando gave him two packets.  As he left, Kakar also grabbed two bottles of Gatorade.  The total value of the cash and property stolen amounted to $215 and the two of you ultimately drover off.

4The registration of the car was noted by a police officer several months later and on 31 July 2013 the police went to your home where the car was located.  You were arrested and told police in the interview that you had been out with your friend Omar Kakar that night.  You said you had been taking medication for psychosis at the time, that Kakar gave you something unknown to drink because you were not feeling well, and that you could remember nothing after that.  You denied committing the armed robbery and said Kakar had never told you what had happened.

5You then pleaded guilty at a directions hearing on 21 August 2014 and it is acknowledged that that plea was entered at the first available opportunity.  Your co-offender, Omar Kakar, who also ultimately pleaded guilty, was sentenced by me on 29 August 2014 to three years imprisonment.  The maximum penalty for armed robbery is 25 years' imprisonment.

6I now turn to your personal circumstances.  You are 26 years' old and were 24 at the time of the offending.  You were born in Afghanistan, the second of six children, and when you were three the family fled to Pakistan because of the war where they stayed until you were 11.  In that time your family experienced extreme hardship including insufficient food, all of you living in one apartment with no electricity or running water, your father working a 15 hour day, and the family generally receiving an amount of emotional and physical abuse from Pakistanis resentful of your ethnicity.

7Ultimately your family was sponsored by your paternal grandparents to Australia where you arrived in 1988 at age 11 and after attending an English school went to primary and secondary obtaining your VCE at Noble Park Secondary College.  Along the way you were not only a good student but a very keen and successful sportsman, involving yourself in wrestling, for which you received a number of awards, cricket, boxing and Australia Rules Football, in the latter sport making it to the TAC or sub-AFL level.

8You then underwent a painting and decorating apprenticeship and worked full time until March 2010 when your employment was abruptly ended when you experienced your first episode of psychosis and were hospitalised in March that year.  You have subsequently been hospitalised in a psychiatric ward on three further occasions.

9You were, in 2010, diagnosed as suffering a schizophrenic illness and have since then continued on a regular basis to suffer auditory and visual hallucinations such as hearing voices telling you to harm yourself and others, seeing visions in the sky, believing a demon was living in your leg, and overall, as your counsel described it, living on and off a terrifying mental existence.  Over the years you have continually been treated with anti-psychotics.  Hospital records also note a significant past history of polysubstance abuse involving ice, speed, and cannabis, as well as binge drinking of alcohol and it appears that you may have been, despite contradictory reports from yourself, using at least cannabis on a fairly regular basis prior to your first episode of the psychosis in 2010.

10According to those records, as I said, you began using marijuana on a daily basis about 12 months prior to your first presentation in 2010.  You used ice on several occasions and snorted drugs weeks prior to that first admission.  You remained in hospital on that occasion for two weeks and were then discharged to the care of the Recovery and Prevention of Psychosis Team, that is the RAPP Team.  A CAT team was required to provide further assistance to you from the 8th - 24 August 2011, to stabilise your mental state, and you were referred by to RAPP and disengaged from the service soon after.

11You were again treated by the CAT team from 11 April to 8 May 2012, when you presented with a relapse and psychotic symptoms due to non-compliance with treatment and medication and recent ice use.  You were recommenced on anti-psychotic medication and you received care again until 12 April 2013 when you were discharged in to the care of your general practitioner, at which time you were taking oral anti-psychotic medication.

12Finally, in May 2014 you were treated by the CAT team, which is the Crisis Assessment and Treating Team, after presenting with another relapse and demonstrating psychotic symptoms including religious and bizarre delusions that someone had performed black magic on you, believing the radio and television were speaking to you and telling you the prophet Mohammed was

13coming to help, seeing images of people, hearing voices, again believing there was a demon in your leg and that random people knew what you were thinking.

14Following this last relapse your treatment was finally taken over by the Cranbourne Community Care Team.  The dose of your anti-psychotic medication, Risperidone, was increased, use of an anti-depressant was continued, and other medication introduced for side effect management.

15In her report, dated 13 October 2013, Dr Moira Spatorno, the consultant psychiatrist at the Cranbourne Community Health Team, noted that whilst your anti-psychotic medication had remained unchanged, over time your anti-depressant had been increased because you were reporting high levels of depressive and anxiety symptoms, but overall your psychotic symptoms had improved so that when last reviewed by your case manager in September this year, as she said, your cognition appeared intact and you denied having experienced symptoms for the previous few weeks.

16

A report tendered on the plea by psychologist,

Dr Leon Turnbull from Forensicare, dated July 25, 2014, confirmed the diagnosis of schizophrenia.  A third and earlier report dated 24 May 2014 by Dr Anthony Cidoni, who supervised you for some time, also confirmed this diagnosis and noted that at that stage, when the report was written, you were suffering a significant level of ongoing symptoms that required more intensive treatment, and indeed it was Dr Cidoni who referred you back to mental health services.  He said the cause of your psychosis was not known.

17It appears from reports that you have given differing versions of your drug and alcohol abuse.  Your family, of which you are the only member to come before a court on a criminal charge, is religious and Islamic, so that use of alcohol is forbidden within the culture of your family and religion.  You have some prior criminal history beginning in July 2008, when on two occasions of that month you were dealt with by the Magistrates' Court for assault by kicking and then for carrying a dangerous article and assault with a weapon.  You were then aged about 20, and the assault by kicking charge apparently arose when you were outside a nightclub and a fight broke out in the group you were in.  You were unable to recall the circumstances underlying the charges of carrying a dangerous article and assault with a weapon, the latter for which you faced two charges of that kind and were placed on a 12 month community-based order with 80 hours of unpaid community work, which you apparently successfully completed.  In March 2010 you were dealt with for driving offences and placed on a without conviction adjournment.  You have no other convictions.

18You met your co-accused Kakar in 2013, he being an associate of your older brother, who once worked as a security guard, and Mr Kakar worked with him.  Prior to the offending, you had shown signs of mental deterioration, and your family - I note that you live with your parents, brother and sister-in-law and a younger sister - were told by authorities that you should be hospitalised or kept under 24 hour surveillance.  The family kept a close eye on you, but on the night of the offending your older brother went on a rare night outing.  You apparently told your parents you were going for a walk, then got in your car and drove to Kakar’s house.  You were not feeling well, and told police in your record of interview that at the time all you could see was a cloud in the room, and after telling Kakar you were not well, he gave you a drink, saying, "Trust me, I'm like your brother", that it immediately made you feel better, but you have no memory of what occurred thereafter.

19Dr Cidoni, who was in 2014 then supervising you and preparing a report for this hearing, noted that the RAPP team notes showed you were reviewed by that service on 25 January 2013 when you were described as doing well, but that you missed a medical review on 1 February 2013 and on 8 February, when you finally attended, described seeing "rude images while praying."  You then missed an appointment with your general practitioner on 14 February 2013, then on 25 February 2013, reported by telephone to your RAPP case manager that you had not slept well, had not taken your anti-depressants for two days, felt as if you were suffering due to pressure in your chest, and I note this is often a symptom when you are feeling unwell.  However, your medication was not changed, nor was the frequency of the reviews, nor were you admitted to hospital, and you were discharged from the service as planned on 12 April 2013. 

20It does seem from the material that around the time of your offending again, which was on 24 February 2013, you were suffering some deterioration in your mental illness.

21Following your arrest and interview with police, you became very stressed and your father took you to revisit Afghanistan, where you met a young woman and developed a relationship and were married 12 months ago.  She is applying for residency in Australia, but you are in constant contact and is described by all who know you and your family as a great support to you.

22You also told Dr Turnbull that you felt depressed on 24 February, believing there were flames in the sky and experiencing sensations in your chest and that you had gone to Mr Kakar believing it would make you feel better and that the two of you would attend a nightclub.  You said he offered you a black liquid in a coke bottle and, ten to 15 minutes after drinking it, you felt on top of the world, then your only recollection was being awoken by your brother at home.

23Following the onset of your illness in 2010, you were placed on a Disability Support Pension and did not work for several years.  However, it seems that concerted efforts had been made by your family following your interview with police, that is, in taking you to Afghanistan and assisting you in terms of the relationship with your now wife, and further, that the support you have increased and stabilised following your latest emergence of mental illness in 2013 so that the Cranbourne Community Health Team is now managing your situation.  Things have improved to such an extent that you have, in fact, resumed your occupation as a painter and decorator.  You work for yourself, with your father occasionally working for you, and you attend the gym regularly.  You see your case manager at the Cranbourne Integrated Care Centre on a fortnightly basis and are interviewed by Dr Spatorno monthly.  You take two Risperidone tablets at night, recognising they assist you with your hallucination difficulties.  You apparently still experience some buzzing and sensation of there being something in your leg, but otherwise your delusions have largely subsided.  You no longer drink or use illicit substances. 

24I received a number of character references primarily from family members, who wrote of your successful education, sporting achievements and employment after the onset of your mental illness.

25Your brother Sharnz Masoud, with whom you were residing at the time of your offending, wrote that he had told you to stay away from Mr Kakar.  That your offending occurred on the one night he was away from you, for which he continues to berate himself. 

26All spoke of the stabilisation of your psychiatric condition, particularly in recent times, and your return to work subsequent to your marriage, the positive affect this relationship has had upon you, and generally provided evidence of a great deal of family support.  The plan is that your family purchase the house next door for you and your wife to live in once she eventually arrives. 

27I also received a character reference from John Demetriou, a professional painter who employed you for two years until you became psychiatrically ill.  He described you as a very good worker and a respectful young man, stating your offending was in his view, utterly out of character, and that he would not hesitate to re-employ you, if you wanted.

28A builder James Mackie, who had also employed you for painting services described you as a hardworking, professional, ethical young man who he would also not hesitate to re-employ.  The Imam of your local mosque wrote about your assistance with general duties there, as well as you teaching young children in religion, and he described you as a well-mannered and well behaved young man, who had studied hard at school, experienced sporting success, but he suffered psychosis for a number of years, noting your family had been a great support for you in that time.

29Material was submitted showing you had registered your painting business, Tab Painting, in September of this year.  The co-offender Mr Kakar not only had serious prior criminal convictions, which you do not have, but was undergoing a sentence of imprisonment at the time I dealt with him for other serious offending involving robbery, and false imprisonment.

30I am satisfied, as I have said that at the time of this offending, you were undergoing some psychiatric deterioration, were experiencing hallucinations, and whilst I accept the opinion of the several psychiatrics who wrote reports that no formal defence of mental impairment was open to you, I am prepared to accept you were experiencing some psychiatric illness, which did have a part to play in what I said was otherwise out of character offending for you.

31I say this notwithstanding the offending history going back to 2008.  Certainly, that was offending that appears to have occurred when you were a much younger man, and before the onset of your mental illness, and certainly did not involve any dishonesty.

32You have had a longstanding schizophrenic illness which is now effectively managed, and you reside with a very supportive family.  You have married a young woman who I understand is a primary school teacher.  You are looking forward to her arrival in Australia.  A letter from the immigration agent working to that end was also tendered on the plea.

33Virtually all the references referred to full and frank discussions with you about your offending, and a description of remorse and embarrassment by you, in having behaved that way.

34In my view, there are a number of protective factors in place so that I can be satisfied you do not present a danger to the community.  I also accept your schizophrenic illness could make the service of a sentence of imprisonment far more onerous than for other prisoners, and may indeed cause a relapse or exacerbation of your symptoms.

35You pleaded guilty at the earliest opportunity.  I am satisfied that you are remorseful for your actions.  You have in my view, given the supports in place, the management of your mental illness and the resumption of your work as a painter and decorator, good prospects for rehabilitation.

36I am also satisfied that there is sufficient disparity in the conditions surrounding your offending, including your role, mental state, prior criminal history and rehabilitative prospects such that I should deal with you differently to Mr Kakar.

37Further it is my view that those factors mean that a sentence to be immediately served, is not appropriate in your case and I have had you assessed for a community corrections order for which you have been found suitable.

38Having said that, I do have regard to the victim impact statement of Mr Fernando who has suffered ongoing fear and insecurity as a result of your offending, which is most unsurprising.  You need to understand Mr Masoud, that the maximum penalty for this type of offending is 25 years imprisonment.  It is extremely serious.  Mr Fernando is known as a soft or vulnerable target.  He was alone, probably undertaking poorly paid employment, in that service station.

39He has now had to change his working arrangements, which has no doubt resulted in an even more difficult financial situation for him.  He is frightened when he goes to work.  He is frightened in his home.  This has had a longstanding affect upon him.

40Had you not done as well as you have, had you not had the support of your family, had there not been an intervening period in which the support structures, that in my view mean, it is unlikely that you will return to this court been able to be set in place, you could be expect to be dealt with by a sentence of imprisonment to be immediately served as was your co-offender Mr Kakar.

41Armed robbery on persons who are the subjects of armed robberies in the way that Mr Fernando was, are entitled to expect the courts to protect them.  However, as I have said, it seems to me there are particular circumstances in your case, that make it inappropriate in my view to deal with you other than by the imposition of a community corrections order.

42In sentencing you, I take into account your early plea of guilty.  What I accept is your genuine remorse, the protective factors and community support, the part it has had to play in your mental illness and I therefore sentence you as follows.

43I am going to place you on a community corrections order for a period of two years.  You have been assessed as suitable.  Before placing you on this order, I need to explain to you what the fundamental conditions are. 

44They are that firstly, you must report to a Community Corrections office within two working days of receiving this order.  That is by next Monday.  Whilst you are on the order, you must not, either inside or outside Victoria, commit another offence punishable by imprisonment.  You must report to and receive visits from the Community Corrections office.  You must obey all lawful conditions of the Community Corrections office, and directions. 

45You may not leave Victoria without the permission of the Community Corrections office.  You must report any change of address or occupation to the Community Corrections office within 48 hours of that change.

46In addition, I am going to order that you undertake 150 hours of unpaid community work.  I am going to order that you undergo assessment and treatment for mental illness.  Basically what that means is, that the Community Corrections in practise will simply make it a condition of your order that you continue to undergo the mental health treatment that you are undergoing now.  I am going to order supervision.

47I am also going to order that you be assessed and treated for drug and alcohol use.  I know that you have not - the material before me indicates that you have not used alcohol or illicit substances for some time, but it does seem to me that your use of illicit substances and alcohol have been problematic in the past, and it seems to me you do need to have some formal assistance with that as well.  Are you prepared to enter the order?

48OFFENDER:  Yes. 

49HIS HONOUR:  Thank you very much.  Have a seat sir while we prepare the paperwork, thank you.  I am going to order that you provide a DNA sample to the police.  That will simply be a swab, saliva swab taken from your mouth.  You have to do that within 28 days and the form will be given to your counsel, and he will explain to you about that.  Can you just give that to Mr Masoud to sign, thank you very much.

50This is a strange disposal order, a pair of brown coloured shoes.  I am also going to make a compensation order in the sum of $215 to Coles Express. 

51MS BHAI:  Your Honour, before Your Honour stands down, Your Honour indicated to Mr Masoud the requirement to provide the forensic sample.

52HER HONOUR:  Yes.

53MS BHAI:  But didn't explain to him about the ‑ ‑ ‑

54HER HONOUR:  Yes, thank you.  Actually could I have that back.  Can you stand up please sir.  As I said to you, you have to attend - actually I have only got two copies of attending a non-custody - the third one is a custody one.

55MS BHAI:  I apologise, Your Honour, I can ensure that another copy is sent to Your Honour.

56HER HONOUR:  That's all right, we might have it here.  When you attend the police station, I need to advise you that police are entitled to use reasonable force if you refuse to provide that sample, all right.

57I think because I have imposed a community corrections order, there is no requirement pursuant to 6AAA.

58MS BHAI:  That's correct, Your Honour.

59HER HONOUR:  Which I've only just discovered after years of doing it.  All right, thank you very much.  Good luck Mr Masoud.

60OFFENDER:  Thank you, Your Honour.

61HER HONOUR:  All right, you keep going the way you're going.  How is things going with getting your wife out here?

62OFFENDER:  It's in progress.

63HER HONOUR:  Yes. 

64OFFENDER:  Yes.

65HER HONOUR:  Have you got any sort of arrival date?

66OFFENDER:  I'm not sure, probably in a couple of months, she's doing her medical check-ups.

67HER HONOUR:  All right.  Good luck with it all.  All right, thank you very much.  I thank counsel for their assistance in this matter.  Both very helpful indeed.  Thank you, we will stand down.

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