Director of Public Prosecutions v Mehrdadian

[2020] VCC 688

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02450

DIRECTOR OF PUBLIC PROSECUTIONS

v

IQAN MEHRDADIAN

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 May 2020
CASE MAY BE CITED AS:	DPP v Mehrdadian
MEDIUM NEUTRAL CITATION:	[2020] VCC 688

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence, guilty plea, prohibited person possess firearm, handling stolen goods, deal with property suspected to be the proceeds of crime, commit indictable offence whilst on bail, COVID-19, young offender,  rehabilitation, combination order

Legislation Cited: S6AAA of the Sentencing Act; s.44 of the Sentencing Act; s.18 of the Sentencing Act

Cases Cited:Berichon v The Queen [2013] VSCA 319; Ryder [2016] VSA 3; O'Neill [2015] VSCA 325; R v Verdins [2007] VSCA 102

Sentence:13 months imprisonment with a community corrections order for a period of 2 years

S6AAA declaration:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Pickering for plea Mr Rooney for sentence	Office of Public Prosecutions
For the Accused	Ms E. Clark	JDA Lawyers

HIS HONOUR:

1Iqan Mehrdadian, you have pleaded guilty to one charge of prohibited person possess firearm, for which the maximum penalty is 10 years; and one charge of handling stolen goods, for which the maximum penalty is 15 years.

2You have also pleaded guilty to the following summary offences:  deal with property suspected to be the proceeds of crime, for which the maximum penalty is two years; and committing an indictable offence whilst on bail, which attracts 30 penalty units or three months' imprisonment.

3Mr Mehrdadian, you are now 19 years old and you were 18 at the time of the offences.  You lived in Truganina at the time.  Your co-offender, Jayden Schmitt, he was 21 at the time of the offences and lived in Narre Warren.  Another co-offender, Andrew Rohan, is now 40 or 41 and lived in Cheltenham at the time of the offences.  There is a fourth alleged co-offender in this matter, Malaki Salesui, and his charges are listed for trial next year, as I understand it.

Facts

4The facts of this matter are set out in the prosecution opening, which was read in open court by the prosecutor and tendered as Exhibit P1 on the plea, and it forms part of my reasons for sentence in this matter.  That opening deals with not only your offending, Mr Mehrdadian, but the full extent of offending by
Mr Schmitt and Mr Rohan as well, and I will not repeat the details that relate to those offences with which you were not charged but Mr Schmitt and Mr Rohan were charged.

5In February 2019 police commenced Operation Thrives directed at offending in the south-eastern suburbs of Melbourne by you, Mr Schmitt, Mr Rohan and
Mr Salesui.  Police used covert operatives and physical surveillance in this investigation.  Mr Schmitt and Mr Rohan were implicated in a range of different offences.  Mr Schmitt's offending covered a period of four months.  You,
Mr Mehrdadian, were involved on one day, being 17 May 2019.  Mr Schmitt had earlier discussed with the covert operatives involved, the sale of drugs, stolen cars and firearms, and by the time you got involved, had already sold drugs and stolen cars to the covert operatives.

6I will turn to the charge of prohibited person possessing a firearm and the handling stolen goods charge.  On 17 May 2019 Covert Operative 298 (“CO 298”) attended at Mr Schmitt's house and then he went with him to the Eden Rise Shopping Centre on Clyde Road, Berwick.  He directed Covert Operative 298 to a Hyundai sedan, 1KU 3TQ, who looked in the shopping centre car park.

7Mr Schmitt there introduced CO 298 to you and also to Mr Salesui, who was present.  Mr Salesui introduced himself as Lucky, and you as Iqan.  Mr Salesui asked CO 298 if he was interested in purchasing a firearm, which they had for sale, and he directed you, Mr Mehrdadian, to show it to the covert operative.  You were able to describe the firearm and then took the covert operative to a black 2013 Audi A5, registered ABB 600, and you opened the boot.  You showed the covert operative an assault rifle, which you said you would sell for $15,000.  You also noted that the Audi was hot.  Mr Salesui told the covert operative that they already had a buyer for this assault rifle but if the sale fell through, they would sell it to that covert operative.  He then instructed you, Mr Mehrdadian, to drive the Audi away and he would follow in the Hyundai.

8Subsequently the assault rifle was sold to CO 298 on 21 May 2019 in Olive Street in Dandenong by Mr Schmitt and Mr Salesui.  The firearm on that occasion was again in the boot of the stolen Audi.  CO 298 purchased the assault rifle, along with ammunition that was provided.  He paid $18,000 for the firearm, the ammunition and the Audi, which you had earlier shown him and which they had with them on 21 May.

9He gave the money to Mr Schmitt, that is the $18,000, and then Mr Salesui counted the money before they drove away.  So, the firearm charge is based on your possession of the firearm on 17 May, as is the handling in respect of the Audi.  The summary offence of dealing with suspected proceeds of crime is put on the basis that by offering the goods for sale, being the Audi and the firearm on 7 May 2019, when you showed and described the weapon to the covert operative and described the Audi as hot, you were complicit in dealing with the proceeds of crime, being the $18,000 paid for the Audi and the rifle.

10You were on bail at the time of committing these offences and that is the basis of the summary charge of committing indictable offence whilst on bail.

11This firearm was a fully automatic SKS assault rifle, which was capable of firing 100 rounds a minute.  The serial number had been removed and the origin of the firearm is unknown.  The Audi sedan was confirmed by police to be stolen and having been obtained with a fraudulent cheque on 2 April 2019.  It was valued at $26,000.

12Mr Mehrdadian, you were arrested and interviewed at the Werribee police station on 12 June 2019.  You denied the offending, but you admitted knowing Mr Salesui. 

Guilty plea

13You, Mr Mehrdadian, made a summary jurisdiction application in relation to the charges in November 2019.  This application was refused.  You pleaded guilty to the offences about a week later in December 2019.

14I regard these pleas as having been entered at the earliest opportunity.  You have saved the community the time and the cost of a trial and you have spared the witnesses from giving evidence.  I give you credit for the utilitarian value of your guilty plea and I accept that your guilty pleas are indicative of some remorse for your offending, although the extent of remorse is hard to gauge.

Gravity of offending

15In this case, Mr Mehrdadian, your offending was serious.  The offence of possession of a prohibited person in possession of a firearm has a maximum penalty of 10 years.  The gun you were prepared to facilitate releasing into the community for money had no legitimate purpose.  As I said when I sentenced Mr Schmitt, to involve yourself in the distribution of such a weapon shows a disregard for the safety of the public and a willingness to support serious criminal activity.  This SKS rifle was an automatic weapon capable of firing 100 rounds a minute.  This is a very dangerous weapon, only useful in criminal offending.  You gave a description of the weapon, so you had some familiarity with it, and you therefore knew that what you were involved in selling was a very dangerous item.

16In respect of your role, in my view, it does appear that you were taking directions from Mr Salesui and I have no evidence about whether you profited from the offending, although presumably you had something to gain by this conduct.  There was discussion on the plea of the Court of Appeal decisions of DPP v Basic [2016] VSCA 99 and DPP v Berichon [2013] VSCA 319, which do relate to the charge or prohibited possession in person of firearms and are relevant to my assessment of your offending.

17In Berichon v The Queen [2013] VSCA 319 Redlich JA observed that:

'Where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity, sentences of a lower order of imprisonment are appropriate, but where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose, more severe sentences are usually in order'.

18Whilst your conduct does not fit neatly into either category you sold firearms to a person you believed was a criminal.  As far as you were concerned you were providing a very dangerous weapon for a criminal purpose.  In my view, you therefore fall into the higher category.  Your role in the handling of the motor vehicle recently stolen was also serious offending.  By handling the vehicle and being involved in its disposal you were promoting the market that drives such offending.

19However, your participation in those offences was limited to one day, being
17 May 2019.  The charges you face are also quite different to those of
Mr Schmitt, who offended over a period of four months.  I sentenced you only in relation to one weapon and one car.  The other significant difference between you and Mr Schmitt is that you were only just 18 when you committed this offence.  In this context I do note, though, that your criminal record is more extensive than was Mr Schmitt's.

20In relation to the proceeds of crime offence I intend to convict and discharge you because, in my view, the facts of that offending are a complete factual overlap with the two indictable offences and I have taken into account that you were offering the Audi and the firearm for sale as an aggravating feature of both of those offences so, in my view, there is a complete overlap and I intend to convict and discharge you in relation to that charge.

Personal circumstances

21I turn now to your personal circumstances.  Mr Mehrdadian, you are now
19 years old.  You are the third of your parents four children.  Your older brother and sister were born in Iran.  You and your younger brother were born in Australia.  Your parents fled Iran in fear of persecution.  Your family struggled on arrival in Australia because your father's professional qualifications were not recognised.  In Iran he was apparently a well-known politician and a doctor but in Australia he has only been able to work as a truck driver, bricklayer and labourer.  The altered circumstances of your family caused friction in your parents’ relationship but they have remained together.  Although you remain close to your family you are aware how disappointing your behaviour has been to them, particularly your father.  Apparently, you feel guilty and shame because of this.

22You told Ms Carla Ferrari, the psychologist who assessed you and provided a report dated 7 October 2019, that from an early age you gravitated to your older peers and you were exposed to a lifestyle beyond your years.  You say you were susceptible to peer influence.  When you were 14 you were sent to live with family friends to attend a school in their district, but you had a falling out with them and left and stayed with an older friend, aged 18.  You described this friend as being like an older brother.  You were 14 when you saw this older friend shot dead.  You were traumatised by this event and you say your life spiralled downward following this incident and you turned to drugs and to crime.

23In terms of your education the material indicates you did well academically in primary school and the report of Ms Ferrari suggests you started secondary school at the age of 11.  However, your behaviour was problematic, and you report moving schools several times, both in primary and secondary school because of your poor attitude.  You were expelled on several occasions, including from St Joseph's Flexible Learning Centre, an alternative school for children with behavioural problems.  In Year 9 you were sent to live with your older sister in Queensland, but you were expelled from that school for assaulting one of the other students.  You finished Year 9 but you did not go back to school after that.

24When you were 16 years old you sustained a traumatic brain injury from a quad or a motorbike accident which took place on 31 August 20016.  You were not wearing a helmet and you collided with a vehicle.  Your head injury was determined to have been of moderate severity.  I have been provided with two neuropsychological reports from an organisation called Diverge.  The first report is dated 20 March 2017.  The author of that report is Genevieve McMahon, a clinical neuropsychologist.  The second report relates to three assessments in 2018.  The author of this report is Dr Kathryn Hoskin, a clinical neuropsychologist.

25Dr Hoskin in her report concluded that you did sustain a significant traumatic brain injury in the accident but thought that medical file review would be needed to clarify the severity of the injury.  Ms Ferrari also deals with your acquired brain injury, suggesting that you struggle with reasoning, critical and consequential thinking, and you are easily influenced and manipulated by peers.  She says your cognitive deficits impact your ability to exercise appropriate judgment, remain calm - sorry, make calm and rational choices and think clearly about your actions and their consequences when experiencing heightened emotions.  Ms Ferrari says your acquired brain injury has implications for emotional regulation, impulse control, problem solving and decision-making capacity.

26She postulates a causal connection to the offending based on these psychological deficits.  She also suggests that a custodial sentence may prove more onerous for you because of the limitations on specialised treatment available in custody and the potential of exploitation by others.  I should add
Ms Ferrari also identified a substance abuse problem.  You started using cannabis at the age of 15 and you have had a cocaine addiction since you were 16.  You reported you were using over an ounce daily at the peak of your use.  You have experimented with MDMA and ecstasy and you also describe binge drinking.  You told Ms Ferrari that you used steroids in December 2018 and then again from March 2018.  Around this point you stopped using cocaine and you began obtaining Seroquel to help you sleep.  You say you then stopped using steroids and lost kilograms and you were unable to train.  All this seems to have contributed to a deterioration in your mood.

27I think that should be March 2019.  I will just go back.  I said you used steroids in December 2018 and then again, and it should have been March 2019 in the lead-up to this offending.

28Your counsel, Ms Clarke, submits that I should moderate my assessment of your moral culpability and deterrence based on your cognitive deficits.
Mr Pickering, on behalf of the prosecution, referred to the decisions of Ryder [2016] VSA 3 and O'Neill [2015] VSCA 325. He submitted that the material connection between your cognitive deficits and the calculated offending in this case was not direct enough to fully enliven Verdins or the Muldrock principles.  In my view, there is uncertainty about the severity of your acquired brain injury, and I agree that it is hard to see any particular connection to this purposive offending.  In the end the evidence is you do have an ABI and I accept it has made some contribution to you developing the various psychological deficits set out in Ms Ferrari's report, which I think have played a role in your substance abuse and your gravitation to criminal associates.

29Accordingly, I have allowed a small moderation of your moral culpability and deterrence; however, this moderation is quite limited because of the deliberate nature of your conduct and because, in my view, substance abuse has contributed to your overall psychological position.  However, I accept
Ms Ferrari's view that the burden of your imprisonment is likely to be increased because of your psychological makeup, which is at least in part caused by your acquired brain injury and I have taken this into account in formulating the sentence in this matter.

Criminal history

30I turn to your criminal history.  Your first appearance was for aggravated burglary, armed robbery and other offences in the Children's Court.  You received a youth attendance order.  You had apparently been in custody for a period of six months leading up to this appearance.  For some of that time you were held in the Barwon Prison as a result of riots that took place at the Juvenile Justice Centre.  You were remanded in custody again a few months later, so 2017 was your first appearance, for further offending and for breaching your youth attendance order.  This time, on 2 August 2017, you received a sentence of 15 months' youth justice centre.  You spent some 13 months in custody before you were released on youth parole.  You were remanded in custody for these matters on 12 June 2019.

Sentencing considerations

31You have spent approximately two and a half years of the last four years on custody.  You are, at the age of 19, in danger of becoming institutionalised.  Your criminal history is very significant for someone of your age and it does give rise to real uncertainty about your prospects of rehabilitation.  Your history is also clearly relevant to specific deterrence.  However, in this context I note that all previous appearances in your criminal record have been in the Children's Court.  You have a number of problems, including your acquired brain injury and your drug abuse, for which you will need assistance to have any hope in getting of the treadmill of constant incarceration, which you have now been on for a number of years.

32On the other hand, you are a very young person to have spent nearly a year in adult prison, and notwithstanding the serious nature of your offending and your prior convictions, your rehabilitation must still be emphasised as a sentencing objective.

33I have also taken into account the conditions of your incarceration so far as outlined in Ms Clarke's submissions and that the burden of your imprisonment has been increased by the changed conditions in response to the COVID-19 crisis.

34In this matter I ordered a community correction order assessment.  The report indicated that you took buprenorphine, which was not prescribed.  I sought clarification of this and the author of the report, Ms Radovic, confirmed that this illicit drug use was detected from a urine sample and you were subject to a governor's disciplinary hearing as a result.  You disclosed this to
Ms Radovic when she conducted the assessment with you.  In relation to this Clarke has submitted that this confirms that you need drug counselling and that it does not alter her submission as to disposition.  She also submitted that it was to your credit that you disclosed this matter to the assessing officer.

35I have to say it is not an encouraging sign, Mr Mehrdadian, but in the end,  it has not altered the disposition that I intend to impose today.  In your case,
Mr Mehrdadian, I have come to the view that you have almost served enough time in custody to satisfy the sentencing principles of general and specific deterrence and denunciation and just punishment and community protection, all of which are important in this case, but I must balance those principles in your case with a young offender against the need to promote your rehabilitation.

36Notwithstanding your substantial criminal record, I am prepared to impose a combination sentence of imprisonment and a community correction order.  I gave this order much consideration over whether I should in fact instead impose a maximum sentence and a minimum non-parole period but, in my view, such an order has the benefit over a parole period in that it allows a longer period of supervision during which you can receive assistance and counselling for your various problems and designed to promote your rehabilitation.

37If you reoffend or you do not comply with the Community Correction Order, you will be breached on the order and you will be brought back before me.  In those circumstances one of the options open is to cancel the Community Correction Order and re-sentence you for all of these matters.  If that was to occur there would be a very high chance that I would have to send you back to prison for these charges.  If you continue to offend, further and longer periods of imprisonment are inevitable.

Sentence

38Balancing all the matters in this case as best I can, the sentence that I impose is:  in relation to charge 3, beneath a prohibited person in possession of a firearm, I sentence you to a period of imprisonment of 13 months; in relation to charge 4, handling stolen goods, I sentence you to a period of imprisonment of eight months; in relation to the summary offence of committing indictable offence whilst on bail, one month, and in respect of dealing with property suspected to be the proceeds of crime, for the reasons I outlined earlier, that is that I have taken into account this matter as being an aggravating feature of the prohibited person and the handling stolen goods, I will convict and discharge you.

39So that, Mr Mehrdadian, is a sentence of 13 months.  I will be declaring the pre-sentence detention in this matter but this is a combination order, and what I propose is a Community Correction Order with drug treatment, treatment for your mental health, supervision, offending programs, and I do propose to have judicial monitoring in this matter and I will make the first of those judicial monitoring hearings in October.  I will get a date for that in a moment.

40You have to consent to a community correction order, Mr Mehrdadian.  Do you consent to a community correction order in the terms that I have outlined?

41OFFENDER:  Yes, I do, Your Honour.

42HIS HONOUR:  All right.  Now, pre-sentence detention, according to my calculations, is 349 days.  Can I just check that?

43Ms CLARKE:  I agree with Your Honour.

44HIS HONOUR:  That's correct?

45MR ROONEY:  That's correct, Your Honour.  Yes, yes, Your Honour.

46HIS HONOUR: I declare, pursuant to s.18 of the Sentencing Act that 349 days is to be deducted from the sentence that I have imposed. This will be entered into the records of the court. So what that means, Mr Mehrdadian, is once the pre-sentence detention is deducted you have got - I think it is approximately six weeks or thereabouts to serve, after which you can be released pursuant to a Community Correction Order that will go for two years. I can do that because s.44 of the Sentencing Act allows me to do that where there is less than 12 months to be served after deduction of the pre-sentence detention.  So that is what I have done in this case, Mr Mehrdadian.

47I will just look at the document we have got.  I am going to read you in a moment the conditions, Mr Mehrdadian, because you have to understand those.  I am going to make the judicial monitoring at 9.30 on 2 October.  Do you understand, Mr Mehrdadian?  That means you have to either come to the County Court or appear via WebEx, and that can be arranged.  For me, I will get a report from Corrections and then I will see how you are going, and we will have a discussion about it on that date.  I think you need a goal in mind and another date you can aim to.  So, I have decided it is in your interests if I do have a judicial monitoring appointment in this case.

48If we come back in here in October and the report says you have not been doing the things that you are supposed to do, you have not been complying or you have been reoffending, anything like that, then it will be immediately apparent that you have breached the order and thereafter proceedings could be set in train for a breach and you would be back before me pretty quickly.  Do you understand?

49OFFENDER:  Yes, I do, Your Honour.

50HIS HONOUR:  All right.  All of these orders have core conditions.  Can I just check?  Is he going back - is he going to Warrnambool is he; is that correct?

51ASSOCIATE:  Werribee, Werribee, Your Honour.

52HIS HONOUR:  It says Warrnambool.

53ASSOCIATE:  Sorry, Werribee.

54HIS HONOUR:  What might have to - just the document says Warrnambool.  We will just have to check.  You have got to go to Werribee Corrections within two clear working days - sorry?  Can you - - -

55OFFENDER:  (Indistinct words).  Yeah, I can hear you.

56HIS HONOUR:  You can hear me?

57OFFENDER:  Yeah.

58HIS HONOUR:  All right.  Can you hear, Ms Clarke?

59MC CLARKE:  Yes, Your Honour, I can.

60HIS HONOUR:  Ms Clarke, your screen is frozen completely.  Now it is all right.

61MC CLARKE:  I can hear you, Your Honour.

62HIS HONOUR:  All right, well, that is fine.  You are just - it freezes from time to time.  So the mandatory conditions are that you cannot commit another offence punishable by imprisonment while you are on this order.  Do you understand?

63OFFENDER:  Yes, I do, Your Honour.

64HIS HONOUR:  That is a breach.  If you do that, breach.  You have to obey all the obligations and requirements under the sentencing regulations.  You have to report and receive visits from Corrections.  Do you understand?

65OFFENDER:  Yes, Your Honour.

66HIS HONOUR:  As directed.  You have got to go to the Werribee Community Corrections Centre two days after this order starts, which is when you are released.  Do you understand?

67OFFENDER:  Yes, Your Honour.

68HIS HONOUR:  If you do not go, that is a breach.  If you change your address or your job, if you have one, you have telephone let the Community Corrections Centre officer know.  You understand that?

69OFFENDER:  Yes, Your Honour.

70HIS HONOUR:  You cannot leave Victoria without telling Corrections and you must obey all lawful instructions of Corrections.  So they are the mandatory conditions, and if you do not do any of those things then you breach the order.  You understand?

71OFFENDER:  Yes, Your Honour.

72HIS HONOUR:  You are under supervision for two years.  You have to undergo assessment and treatment including testing for drug abuse or drug dependency, as directed; you understand?

73OFFENDER:  Yes, Your Honour.

74HIS HONOUR:  This is all designed so you will stop offending; you follow that?

75OFFENDER:  Yes.

76HIS HONOUR:  Mental health assessment and treatment, including psychological, neuropsychological psychiatric or treatment in a hospital or residential facility as directed by the regional manager.  That is a mental health condition.  Did you follow all that?

77OFFENDER:  Yes.

78HIS HONOUR:  And you must participate in programs or courses consistent with the purpose of achieving treatment and rehabilitation that might include educational, cultural or personal development programs as directed by the regional manager.  So they are programs to try and stop your offending.  You understand?

79OFFENDER:  Yes, Your Honour.

80HIS HONOUR:  And I have ordered judicial monitoring and it is 5 October 2020 at 9.30 am.  So, 5 October 2020, you have to come back here, whether you are actually physically here, or you are via the WebEx; do you follow?

81OFFENDER:  Yes, Your Honour.