Director of Public Prosecutions v Mikael
[2021] VCC 1295
•6 September 2021
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-01784
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN MIKAEL |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August 2021 | |
DATE OF SENTENCE: | 6 September 2021 | |
CASE MAY BE CITED AS: | DPP v Mikael | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1295 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Attempted aggravated carjacking - indictable offence while subject to
bail conditions –criminal damage- drug and alcohol abuse – PTSD and
a history of major depressive disorder, largely resolved and in partial remission- extensive criminal history- moderate risk of recidivism -
Legislation Cited:
Cases Cited:
Sentence: 4 and a half years imprisonment. Non-parole period 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms A. Dickens | Ms R. Yumul |
| For the Accused | Mr J. Valos | Mr J. Valos |
HIS HONOUR:
1Steven Mikael, you pleaded guilty to one charge of attempted aggravated carjacking and at the time of doing so and in order to do so, you had with you an offensive weapon, namely a metal pole, and sought to put Hamsa Haddara in fear that he would there and then be subject to force. You also pleaded guilty to damaging property by way of criminal damage to a car belonging to Kamal Kannan. You also pleaded guilty to a summary offence having committed an indictable offence while subject to bail conditions. The circumstances of the offending were outlined in a document tendered by the prosecution on your plea. I will summarise these uncontested facts.
2The two victims were unknown to you. You were 37 at the time of this offending, which took place in 2018. You are now 30 years of age. On 15 November 2018 at 1.45 in the early morning, Hamsa Haddara was in his car talking by phone to his partner, waiting for her to return home. He had parked his motor vehicle in a suburban street in Meadow Heights. He saw a silver Mercedes stop in front of his car at a 45-degree angle which blocked his car from forward movement. You were the driver of this car. You then got out. You were holding a metre-long silver bar, an inch to an inch and a half approximately in diameter. You approached the driver's side window. You were yelling at Haddara, 'Get out and give me the car keys.' As you said this, you raised the bar over your head. Haddara lowered the window and asked you what you wanted. You again asked him to get out and give you his car keys. When he refused, you leant into the cavern and tried to take the key from the ignition, but the car was keyless and had therefore no key.
3As you did that, Haddara pushed your head away with his hand. You withdrew from inside the car and Haddara drove off around your car. He drove only a short distance and saw a police car which had pulled over another vehicle. He stopped behind the police car. He told police what had taken place. As this discussion was taking place, the police officer and Haddara heard three loud bangs coming from the place where the previous incident had taken place. Haddara left to look for you in your car. The sound was similar to glass being smashed. At this point, police saw you in your Mercedes drive past, followed by Haddara. Some little time later, police members located your car. You were approaching the front gate of an address in Kenley Court. You had a screwdriver in your hand, and you were then arrested.
4The police searched your vehicle and found a silver metal pole. At the place where you had been found, police noticed damage to yet another silver Mercedes motor vehicle, a Mercedes car owned by Mr Kannan. Police saw damage to the front and rear windscreens and photos of the damage were taken. Your act of smashing the windows was observed by a witness whose house was across the road from the car who had seen you smashing them with an object which looked like a bit of a pipe. Shortly thereafter, this witness saw police arrive and arrest you. The owner of the vehicle which you damaged, Kamal Kannan, was woken up by his sister who had heard noises outside and when he went outside, he saw police present already. This was the intentional damaging property.
5At the time of these events, you were on bail. You were taken to the Broadmeadows Police Station and you were interviewed. You told police you had arrived at the location with a different car to the one you drove, in fact, asserting this different white Mercedes had been stolen and when you noticed that you went berserk. You thought Mr Haddara was stalking your cousin's house. When you asked the driver what he was doing there, he was told that he was waiting for his girlfriend but, as you did so, the driver tried to scratch you; that is what you told the police. The man then drove off but he was intercepted by police. When asked about the screwdriver, you said you needed to fix the car as one of the bolts on your front bumper bar had come off.
6You told police a man was sitting in his car, a black BMW sedan, that you parked your car in front of it and that you asked the driver what he was doing there. You denied trying to hit the driver with the pole. You admitted you had a pole from a vacuum cleaner in your car. You said that the car, which was damaged, a silver Mercedes, was your friend's car that had been sitting there for a long time. He was driving the silver Mercedes which had the pole inside it and that this was your friend's car. You denied smashing the car's windows.
7Summary Charge 4 alleged that on that day of the offences you were the subject of bail conditions. There is no victim impact statement, however, I can infer from the circumstances that your aggression with the pole and demands, your entry into the cabin of Mr Haddara's car would have caused him some fear and consternation. Similarly, the damage to Mr Kannan's car probably caused expense and inconvenience and some dismay and fear in the witnesses.
8Aggravated carjacking is a relatively prevalent offence and the legislators have indicated the gravity of this offending by the imposition of high maximum penalty level 2. An attempted aggravated carjacking is a level 3 penalty, but nevertheless, a 20 years' maximum. Brutal damage similarly is considered serious, indicated by its 10-year maximum imprisonment period. I note in passing that s.10AB of the Sentencing Act does not apply to an attempt.
9This behaviour on your part in relation to the aggravated carjacking, I consider to be, as far as attempts are concerned, towards the lower end of that offence. Although there is no victim impact statement, I repeat, the behaviour is likely to have been terrifying for an isolated defenceless victim and caused fear and dismay committed at night in a suburban street. I accept your disturbed thinking derailed any sense or reaction to the victim's presence. It was committed without that much planning. There was no actual violence, disguises, or injuries, though your presence was clearly threatening of force accompanying your demand.
10In sentencing you, I take your circumstances into account. You are now 40 years of age, the oldest of three brothers and two sisters. Your family fled Iraq when you were 12 or 13 years old, given the war there. During that conflict, you told the consultant psychologist Ms Ferrari that you were exposed to much widespread and extreme violence. You also disclosed matters pertaining to you personally, which were outlined at paragraph 21 of the first report, that of 30 January 2019 which I will not go into in detail. Your family fled to Turkey as refugees. With an uncle you went to Greece and lived there in some poverty for some two years. Your family was granted entry to Australia and you then joined them in Australia. After living independently, even if destitute, in Greece, you found your father's strict discipline in Australia difficult to accept and although you maintained good relationships with your family, you began to abuse drugs. The family affectively broke up more recently during a period when you were in prison. The family-owned home only contains a sister and your father, with other members having left the once close-knit family unit.
11When you arrived, you found school difficult by way of language and educational model. You left school, however, having completed year 12 and then began working as a doorman for a nightclub. You worked then as a bricklayer but did not enjoy it. Your father, who is a builder, took you into his business which allowed you to have your own contracts and projects with time. Instructed that you have always been in employment with some periods of reclusion and accept that in the months between your release and September 2018 and your remand in November 2018, you did not. I will come back to this in a moment.
12You have had one serious relationship which came to a conclusion because of your drug use. You have previously, you told Ms Ferrari, attended a psychologist to deal with mental health issues. While at Marngoneet Correctional Centre, between 2013 to 2014, you saw Ms Lowe there on a weekly basis and more recently had again seen a psychologist in prison. You have been prescribed Avanza and Seroquel previously but did not use them assiduously. In 2010 you had an admission to deal with mental health state due to a concoction of drugs. You told Ms Ferrari that 10 years ago, while at Fulham Prison, you deliberately overdosed on prescription medications. You began using cannabis in 1999 aged 18 and then indulged in ecstasy and speed while working at nightclubs when aged in your 20s. Again, using ice in 2001, aged 20 also, and this was use which spiralled out of control.
13During previous periods of incarceration, you have completed drug and alcohol counselling and courses. When not in prison, you drink alcohol daily which you began consuming when very young and which by age 19 you were abusing. You told Ms Ferrari that you drink half a bottle of cognac per day and that you do not consider this a problem. I can tell you, Mr Mikael, from where I sit, that is a problem.
14You asserted on this report that you were abstaining from drug and alcohol while in prison. Ms Ferrari provided the court with a second psychological report dated 18 June 2021. Before actually outlining its expert contents, I should note two aspects of this document which require comment for future reference. Paragraph 15 it is said that the report's purpose is, 'It's possible to use in mitigation of sentencing before the court.' Even though this indication is couched in terms of possibility, this mistake, in my view, the purpose of the report and the assessments that it contains. Mitigatory effects of such matters are for the court to determine and even if the report does not purport to make that determination, the statement focuses on a matter of mitigation which should not concern the writer. The same can be said about paragraph 69 where the writer offers her opinion as to whether a further period of imprisonment is likely to be of benefit to the offender. Again, these are clearly matters within the province of the court and apart from perhaps being the subject of infelicitous expressions, which may be the case here, I do not know, they should not be part of a psychologist's report.
15Ms Ferrari noted that after the assessment, the subject of the first report, you had been bailed to live with your mother, but you were in custody at the time of the second interview. You told Ms Ferrari that you had soon relapsed into substance use, primarily because you were unable to secure employment during the COVID-19 pandemic. You started gambling, you were bored and depressed and used cocaine daily and drank alcohol to excess, causing aggression and paranoia. Your mother contacted police because she was concerned for her safety. A family violence intervention order was put in place and eventually you were again remanded. The drug use magnified your hypervigilance and paranoia about safety. These thoughts were connected to your home by being robbed, shot at, and burnt down in an act of arson in 2003. It is clear that your extensive history of substance abuse has dominated your life and caused a chaotic life, provoking aggression and a type of behaviour which is common when you immerse yourself in drug using criminal connections.
16Your drug use creates serious instability of behaviour and compromises your ability to behave lawfully and productively in the community and this has been a pattern now for a number of years. Ms Ferrari included in her report additional background history which more clearly and closely described the family history which, although depicting a troubled and distressing struggle to survive in Iraq and Greece, it is only marginally linked, in my view, in a causative sense to the current offences. You reported that you had engaged in one-to-one counselling with Caraniche clinician Ms Perrotta over a period of two years which ceased when she transferred to the female prison and you were unwilling to commence another therapeutic relationship.
17
A letter was received by the court from Ms Perrotta dated 13 May 2020 in which she notes your involvement in the drug and alcohol program at the Melbourne Remand Centre which commenced in April 2019. The letter refers to 43 sessions while Ms Ferrari, who may have been referring to another document, mentions 59 sessions. In any event, I accept that you have engaged in a course of counselling which focussed on issues which underly your substance abuse and offending behaviour, to develop self-awareness and take responsibility and develop more pro-social behaviours. These sessions finished in May 2020 and again ran from October 2020 to March 2021. You also told Ms Ferrari you had attended a
six-week emotional dysregulation group through Forensicare from November 2020. You have been on methadone treatment and told Ms Ferrari you are tired of incarceration. At assessment you appeared to have full cognitive capacity. You were not stressed or depressed or with mild anxiety, you appeared to have some post-traumatic stress disorder symptoms but reduced in severity from the first assessment.
18Ms Ferrari expressed her opinion as being that you present with PTSD and a history of major depressive disorder, largely resolved and in partial remission. She confirms that substance abuse and depression in your case would have affected your behaviour and caused emotional dysregulation, reduced self-inhibition leading to reckless impulsive conduct and impaired judgement. Ms Ferrari carried out an evaluation of risk and found you to be of moderate risk of recidivism, predicated primarily on continued engagement with treatment and engagement with employment. You would be assisted by a mental health plan to remain abstinent from all drugs and illicit substances and undertaking a treatment program, as well as employment.
19Further references in this context were received from Cameron Norton, a senior alcohol and other drug counsellor at Uniting ReGen dated July 2020 in which the writer confirms you have attended that service to discuss your treatment options. You attended a comprehensive assessment by phone in May 2020. You were placed on a waiting list to see a worker at Odyssey House. Mr Norton notes your responsiveness and proactive attitude. A letter from Odyssey dated March 2020 written by worker Kate there, confirms you were booked for an intake assessment in May 2020. A letter from a clinician at Caraniche dated July 2020 outlines the steps taken to be assessed by an AOD Services granting a standard episode of four sessions which then placed you on a waiting list.
20
It is clear from the contents and the relevant dates of these references that
(1), you made some effort to access rehabilitation treatment programs and (2), that the pandemic situation created a significant obstacle to access those programs. Prisoner assay result from April, September, two in March 2020 and April 2020 were tendered, showing negative results for all the tested drugs, except the methadone medication. Other certificates to attest to efforts made in 2020 to engage in programs on relationships, family, partnership, vocational measurement workshop, traffic management, planning arrangements in the workplace, general education, were tendered. These efforts are rehabilitative, and I take them into account. It is showing that you may have, of late, come to a realisation that you need a radical change of direction.
21A letter from your brother Michael was also tendered, dated May 2020, which outlines the history of the family business and its willingness to have you work for the company upon your release. All of this material I have mentioned above, after the reference to Ms Ferrari's second report, was made available to a judge who, in May 2020, Judge Quinn, granted you bail. It is said that this material demonstrated exceptional circumstances to justify a grant of bail. An appeal against that grant of bail was dismissed in the Supreme Court by His Honour Justice Champion in August 2020. However, as I said before, despite all the positives which may have appeared from the material, you relapsed.
22Delay is a very relevant and significant matter in this case. You are on remand since 15 November 2018. Committal hearings were adjourned on two occasions and only heard in September 2019. COVID-19 restrictions were further extended, then further extended the likely timing of a trial and then the plea. The current health crisis impacted on the time of the resolution, the length of time in custody, the cessation of visits and programs and with the way in which your time was served, including quarantine and lockdowns. Delay has two aspects. The first is that of fairness and, in this context, I take this period into account as adding to its uncertainty to the burden of reclusion. Secondly, there is the aspect of progress towards and prospects of rehabilitation. I accept that the delay probably caused some consternation by its length. The second limb in your case showed you did take some steps to reform through appropriate professional assistance. However, in my view, despite these efforts, in order to give this limb full weight, real rehabilitation would need to be demonstrated. As I said, unfortunately, you relapsed. Real progress is required, and your fresh remand argues against it.
23Nevertheless, I accept that you have ultimately accepted responsibility and have pleaded guilty. I have referred to these details to make clear that I have taken delay into account but not as fully as if you had demonstrated rehabilitation. I also accept that your plea is some evidence of remorse, although, this is a difficult matter to determine fully. I accept that you expressed remorse to Ms Ferrari. Your plea did not come at the earliest opportunity, rather on the eve of a trial listing. The plea carries a utilitarian benefit of having avoided such a criminal trial. In these difficult days of pandemic, a plea is worthy or greater weight than usual, given it is made at a time when the administration of justice has been impacted on by COVID-19 and was given with the prospect of returning to a period of imprisonment at a time when the health crisis, not only has impacted the logistical administration of prison, but also the delivery of services within that system, coupled with the potential for infection in its closed confines even as we currently see in the New South Wales prison system. And this is an added burden of imprisonment which I take into account.
24You have an extensive criminal history. You told Ms Ferrari that this behaviour increased in frequency and seriousness once your methamphetamine use escalated some 20 years ago. You struggled to refrain from offending for more than six months in the community before committing another criminal offence and being remanded. Your priors begin in 1999 when you were 18. You were placed on a CBO with 150 hours of community work for burglary, theft, going equipped to steal and aggravated cruelty to an animal. Again, in 1999 you were put on a bond for theft from a motor vehicle and going equipped to steal. The next year, you were placed on an Intensive Corrections Order for recklessly cause serious injury. The following year, you were fined for hindering police, assaulting police, and a bail offence. You were aged 20. However, that same year, you breached the Intensive Corrections Order by further offending.
25You were ordered to serve the unexpired portion of 66 days and then imprisoned for 92 days, partially suspended, for intentionally damage property, disobeying lawful directions. Theft and dishonesty offences which you had committed also breached the earlier CBO. Again, sentences were suspended. In 2003, you were dealt with by another suspended sentence for recklessly cause serious injury and for possessing a dangerous article, you were fined. In 2003, for intentionally damage property, use possession of a drug, you were given another opportunity by way of a community-based order. You promptly breached that order and in 2004 you were imprisoned for the breach and for possession of drugs. Later that year, you received 12 months total imprisonment for an affray and criminal damage.
26In 2007, you faced attempted armed robbery and aggravated burglary and cultivation charges. The Supreme Court sentences you to five and a half years with a non-parole period of three years, nine months. An order of retrial on a charge of manslaughter for which, in 2008, you were convicted and sentenced to a further period of imprisonment. After serving that time, you were again in court in 2012 and received a two-year sentence for recklessly causing injury and criminal damage as well as six months for intentionally cause damage to property. Having served that time, you were in court in February 2016 for unlawful assault and make threats to kill and make threat to inflict serious injury, as well as another intentionally damage property. You were imprisoned for 80 days and placed on a Community Correction Order for 18 months. You breached that order again.
27In September 2016, an aggregate nine months was imposed for assault of emergency worker, assistant contravention of family violence orders. In June 2017, the Magistrates' Court again imposed a Community Correction Order for threats to inflict injury and threatening words. You breached that order by driving offences, dealing in property suspected of being proceeds of crime, dangerous driving, theft of a motor vehicle and a long list of dishonest offences, including a number of criminal damage charges, commit indictable offence whilst on bail and many others. You were imprisoned for an aggregate period on 15 March 2018, a term which expired a very short time before these offences with which you are to be sentenced today committed in mid-November 2018.
28I do not recite these priors because you will be punished again for them. You will not but they are a strong indication in relation to a very relevant aspect of your sentence and antecedence. This history impacts on your prospects of rehabilitation which, in my view, are poor. The impact of the need to specifically deter you becomes very relevant. The courts, over many years, have tried remedies and sanctions to endeavour to help you, to give an opportunity to reform and to deal with your problems. Invariably, you did not take up the opportunity to do so time after time after time. Your numerous priors for violence and also, particularly, many priors for criminal damage, show a contemptuous disregard for peoples' property and propensity of reckless and intentionally destructive conduct.
29General deterrence is primary in this sentence. In an endeavour to deter you and deter any other who may be disposed to commit such criminal offending, the court must denounce this behaviour as totally unacceptable and apply just punishment in order to address the criminality and protect the community and specifically deter you from further offending. This is particularly so, given your relevant priors, the criminal damage which are reoccurring. In my view, there should be a cumulative period to reflect the distinct nature of the offences which appear unrelated.
·On the attempted aggravated carjacking with an offensive weapon, you are convicted to four years' imprisonment.
·On intentionally damage property, you are convicted and sentenced to 12 months' imprisonment.
·I order that six months on Charge 2 be cumulative on Charge 1.
·On committing the indictable offence whilst on bail, you are convicted and sentenced to three months, which will be concurrent.
30The total effective sentence is four and a half years. I order that you serve three years before being eligible for parole.
HIS HONOUR: As I understand it, you have served 958 days by way of
pre-sentence detention. Please correct me if that's not the case, Ms Dickens, but that's what I make it at.
MS DICKENS: Yes, I've recalculated today at 942. On the last date we had 921, I believe.
HIS HONOUR: Yes.
MS DICKENS: And then another 21 days will make it 942 days.
HIS HONOUR: I don't know if you've done that calculation, Mr Valos. I declare that 942 days have been served by way of pre-sentence detention. But for your plea, I would've sentenced you to five years with three and a half years as a non-parole period. Mr Mikael, from my calculation, that means that your
non-parole period will soon expire, and you'll have an opportunity to apply for parole. Whether you get parole or you have to apply more than once is a matter for you but you're now at a point where you're about to become institutionalised if you don't change your ways. You're now a 40-year-old man. This sort of behaviour, this drug taking, is going to be very difficult for you to have the life that you should have and that you should hope to have in the future. I really hope that you can take the opportunity when you come back into the community to go back to work and back to achieve the sort of life that you want and that you can have if you put your mind to it and you move away from this type of behaviour. You're a grown man. It's time to stop behaving like a teenager. Are there any ancillary orders, Ms Dickens that need to be made?
MS DICKENS: Your Honour, I have no further instructions about any other orders.
HIS HONOUR: I don't think that's fair. I was thinking of perhaps a disposal order in relation to the pipe but - - -
MS DICKENS: I don't have anything in relation to that. I'm sure if that becomes an issue my instructor will deal with that.
HIS HONOUR: That's fine. If there - yes.
ASSOCIATE: Your Honour, there is one file. There's a draft order filed.
HIS HONOUR: For forfeiture?
ASSOCIATE: Yes, Your Honour.
HIS HONOUR: All right. Well, I'll make that order when it's brought up to me and I'll sign the forfeiture order. It's probably in relation to the pipe and perhaps to the screwdriver, I don't know.
MS DICKENS: I'll accept that.
HIS HONOUR: I take it that's not opposed, Mr Valos.
MR VALOS: No, Your Honour.
HIS HONOUR: Thank you. Yes, thank you. Sine die. Thank you, Mr Valos, thank you, Ms Dickens.
MS DICKENS: If Your Honour pleases.
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