Director of Public Prosecutions v Mohamad

[2022] VCC 730

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-20-00135

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEHAD MOHAMAD

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JUDGE:	His Honour Judge Moglia
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2022
DATE OF SENTENCE:	26 May 2022
CASE MAY BE CITED AS:	DPP v Mohamad
MEDIUM NEUTRAL CITATION:	[2022] VCC 730

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence upon plea of guilty

Catchwords:              Sentencing – one charge of conspiracy to engage in an indictable offence, namely, common law assault – one charge of prohibited person in possession of a firearm – youthful offender aged 21 years at time of offending – offender planned to remain in car while friend would commit assault – firearm available for use - childhood comprised abuse and neglect – history of illicit and pharmaceutical drug abuse – good prospects of rehabilitation – Post-traumatic stress disorder - general deterrence – community corrections order appropriate.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen (2014) 46 VR 308; Stevens v The Queen [2020] VCA 170; R v Merrett (2007) 14 VR 392; Bugmy v The Queen (2013) 249 CLR 571.

Sentence:Community correction order for 2 years and 6 months with conviction; community correction order attaching special conditions; 6AAA: 6 months imprisonment with community corrections order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Karamicov	OPP
For Mr Mohamad	Ms Edwards	VLA

HIS HONOUR:

1Jehad Mohamad, you have pleaded guilty to conspiring to engage in a course of conduct including a common law assault and to being a prohibited person in possession of a firearm, all relating to events of 18 June 2019. You were on bail at the time of this offending and you have also pleaded guilty to committing an indictable offence whilst on bail.

2The maximum penalty in relation to Charge 1 is 5 years, for Charge 2 it is 10 years and for the summary offence, 3 months' imprisonment.

Summary of offending

3The agreed basis for your plea is set out as the 'Agreed factual basis for the purposes of a sentence indication hearing' at paragraphs 7-43 of the Crown Submissions for Sentence Indication dated 17 May 2022. You are to be sentenced based on those facts, which I will now summarise and make findings about as follows.

4In the early hours of Tuesday, 18 June 2019 at soon after 4:25 am, your friend Jacob Elliott called you and told you that his girlfriend was with 2 men in a hotel room and that he was unhappy about that. He did not know where the hotel was, perhaps Campbellfield, but told you, 'comin’ down to your area… I’m going to punch on.' You replied, 'run through it?… Do you got wheels bro?' Elliott asked you to find out the location of the hotel by calling a mutual friend, Gibbs. He called you again at about 4:43 am to say he now knew their location and you told him Gibbs had sent you a message inviting you to join them. Elliott told you to accept the invitation.

5Mr Elliot then asked you to go past his mum's house to pick up some groceries that would be left in front of her door and bring it to him at Docklands. You agree now that the reference to groceries was in fact a reference to a firearm. You told him, 'I’ll be honest cuz, I don’t wanna run to no apartment.' Elliott told you that if you 'bring them to me' and give him the room number that you could just 'come sit in the car'. You agreed to do as he asked and in doing so formed an agreement to pursue a course of conduct involving entry into the apartment while Elliott would be carrying a firearm and that he would assault the 2 males in his girlfriend's company, as alleged in Charge 1.

6Mr Elliott arranged for his mother to place the firearm into a backpack and to leave it outside her front door, which she did.

7Mr Elliot told Salih Aydin, who was with him at his Docklands apartment, that you were getting the gun and that you 'can’t be fucked while [you’re] Xanied' (a reference to having taken Xanax medication). He said he told you that you could just sit in the car while he would 'go in'.

8By phone, Mr Elliott directed you to his mother's home, telling you to park some distance away before walking to the door and picking up the bag. You told him 'if worst comes… to worst, cuz, listen, I’m gonna sit in the car, getaway driver in case something… fuckin’ goes down.' He said you could sit at his apartment if you wanted to. He repeated his request that you get the room number of the hotel where his girlfriend was located and not to show anyone the groceries in the car.

9

In another call with Mr Elliott while you were at his mother's door, you made it clear that you knew there was a gun in the bag. It is open to inference that during this call you adverted to knowing the gun was loaded. Ultimately, however, the prosecutor submitted that the point at which this becomes clear was later at the Docklands apartment when you were present and

Mr Elliott checked the ammunition in the gun at about 5.30 am.

10Mr Elliott at this point still did not know the exact location of his girlfriend. He directed you again to call Gibbs, which you did. Gibbs cut the call short and Mr Elliott told you to ring back and you made a second call. This time they told you not to bother visiting as they were going to go to sleep and would catch up later in the morning. Elliott unsuccessfully tried to get the information from someone else and you made a third call to Gibbs, but the phone rang out.

11At about 6:30 am, still not knowing where his girlfriend was, Elliott said he was fuming, to which you replied, 'Only need the next half hour to find out where it is, we go there, smash her by 7, 7.30 and come back to the area, we’ll run through, run through…' Later, you tried to calm Mr Elliot, saying,  'Bro, honestly, bro, give a girl one more chance…Don't fuck your life, brother. You don't wanna.....' and there are some indistinguishable parts of the transcript.  You said in part, 'There's plenty of fish in the fuckin' sea, bro, I'll tell ya that much.'

12Mr Elliot urges the group, namely you, Aydin and himself to go outside to find the others and when Mr Aydin raises concerns about there being cameras, you said, 'Bro, fuck the cameras … I’m down – down for anything all right?'

13

You, Mr Elliot and Mr Aydin left the apartment at about 7:14 am, got in

Mr Aydin's car and having parked near the entrance of the same building got out and moved out of sight. You all returned to Elliott's apartment soon after. You asked Elliott, 'Are we running through are we? Kicking doors or what?' You made a fourth phone call to locate Mr Elliott’s girlfriend and spoke to a man saying, 'I just wanna … her location, ‘cause we're literally in the next apartment from them…'

14At about 9 am, Mr Aydin left the apartment and upon his return a few minutes later, he said he saw Mr Elliott's girlfriend run from the building and across a car park. You responded, 'let’s go let’s go let’s go. We’ll go there ask for reservation (sic),' but then you and Aydin rather decided to leave Docklands and head home. You offered to take the bag with you and Elliott instructed you on how to wipe the gun clean, to which you agreed.

15You and Aydin left Docklands at about 9:30 am, stopping briefly at Elliott's mother's house at about 10:15 am, where you walked from the car into the driveway for a few minutes. At 1:30 pm that day, police executed a search warrant at that address and seized a firearm from behind a refrigerator next to the front door.

16Upon examination of the firearm, it was found to be a semi-automatic .45 calibre pistol. Its factory serial number had been defaced and a new number stamped over it. Its magazine contained 2 cartridges. DNA recovered from its grip strongly suggested that Aydin had handled it.

17In summary, the agreed facts establish that whilst Elliott would commit the assault, you would assist him by collecting and delivering the firearm to him, you would attempt to locate the apartment where his girlfriend was, and you would go with Elliot and remain in the car should he require assistance to leave the scene. The prosecutor very fairly conceded that the evidence does not establish the way the firearm was proposed to be used during the assault beyond the fact that it would be available for use.

18As to Charge 2, you were at the time (on 18 June 2019) a person prohibited from possessing a firearm because within the previous 12 months you had been found guilty of an indictable offence, namely, on 7 February 2019 you were found guilty of possessing cannabis and, without conviction, fined. You were not licensed to possess a firearm. I note that the source of your prohibition was entirely unrelated to the illegal use of any weapon or engaging in any form of violence.

19There are no victim impact statements.

Procedural history

20You were arrested on 11 July 2019 when you attended the Broadmeadows police station voluntarily. Police interviewed you and while you admitted visiting Mr Elliott at Docklands that night, you denied collecting a handgun, taking it to him or returning it back to Broadmeadows.

21You were granted bail on 1 August 2019 and have remained on bail since that date. This was your first time in custody and no doubt a salutary lesson to you.

22

You conducted a contested committal hearing on 3 January 2020, involving the cross examination of the informant alone. Following that hearing there were numerous mentions and delays resulting from the late joining of

Mr Elliott's case to yours, COVID-19, the making and consideration of a discontinuance request, and the obtaining of a psychological assessment. The trial in this matter was set down for 6 July this year.

23By application on 12 May 2022, you sought an indication from this court of the type of sentence that would likely be imposed should you plead guilty to the charges I have outlined. The prosecution agreed that the indication should be given on charges alleging a much lower level of criminality than those currently on the trial indictment. The charges the subject of this application are ones ordinarily amendable to summary jurisdiction.

24I granted that application and indicated that upon a guilty plea a community correction order of up to 3 years with conditions would be imposed. You accepted that indication and have pleaded guilty accordingly.

Personal circumstances

25You were 21 years old at the time of the offending and you are now 24. You live at home with your mother and two sisters. Your mother attended court and gave evidence before me about how you have conducted yourself on bail over the last almost 3 years. It was quite apparent that she is strongly in support of you and has observed a real change in your attitudes and behaviour since your release. It is to your credit that you have disclosed this offending to your family and that you have not offended further.

26You attended school in Melbourne's northern suburbs until Year 10. During your early teen years, your parents separated due largely to your father's alcoholism and aggression. His violence towards you on one occasion resulted in you suffering a broken nose. Sometimes for your own safety you left the family home and lived with your maternal aunt. Schooling during that period was difficult for you.  You were expelled during Year 10 due to disruptive behaviour.

27

You nevertheless found work in retail, as an apprentice carpenter and in roof plumbing for extended periods of time. You now work full-time in civil construction having obtained a number of certificates in security and warehousing. Your current employer, Mr Ahmed, knows of your offending and yet supports you, stating you work well with others, are honest,

hard-working, and reliable. He regards you as an asset to his company as a leading hand (Exhibit 1). All of this speaks volumes about your capacity to achieve in spite of the problems that you faced, including those relating to minor offending.

28In 2016 you were found guilty and without conviction placed on a good behaviour bond for possessing methamphetamine. In 2017 you were placed on a further bond without conviction for possessing drugs and a prohibited weapon. In 2019 you were fined without conviction for possessing and using cannabis and offending whilst on bail. Perhaps the significance of this history is in part that it could have represented a much more significant departure from a pro social life. Your success over the past 3 years, however, suggests otherwise. For someone of your age, this is very significant. There are no outstanding matters.

29Psychologist, Dr Aaron Cunningham assessed you as meeting the criteria for Post-Traumatic Stress Disorder arising from your father's violence. He suggests your drug use commenced in your mid-teen years and leading up to this offending arising out of your distress and an attempt to suppress your feelings and distract yourself from your past abuse. He assessed your risk of future violence as only moderate (Exhibit 2). In the months prior to this offending you had been working in the roofing industry where you sustained a fall and were injured. This exacerbated your drug use. In fact, observations of you on the night of this offending confirmed that you were heavily intoxicated and at times on the verge of passing out.

30I have read references about your character and rehabilitation written by your mother, sister, brother-in-law and auntie (Exhibit 3). Their support for you is obvious and this would seem to be because you have earned it since being granted bail. They describe you as having undergone a change since being remanded in custody. You are no longer a young boy, but rather a man with goals and morals set for your future, of whom they are proud.

31As an indication of the significance of your 22 days on remand, your family observed you to lose 5 kg in weight and to be sleep deprived and clearly challenged by your removal from them.

Sentencing issues

32The movement of firearms around our community is a serious problem. With little effort such weapons are capable of inflicting the most serious of harm on others, including death, even when such dire consequences are not necessarily intended.

33Even though you were not the instigator or the driving force of the offending on this night, and your involvement with the firearm was somewhat limited, your agreement to assist Mr Elliot was a grave misjudgement on your part. That he was to carry the weapon during any assault is very concerning indeed. I find, however, that at times during the incident you did express reticence or indeed refuse to participate in at least some aspects of Elliot's plan. This is relevant to your moral culpability.

34I regard general deterrence, denunciation, and punishment to be important features of the sentence I impose on you for this offending.

35I do not regard your criminal history as being of great moment, rather, your recovery and rehabilitation since mid-2019 is of real significance. This is particularly so in light of your age and the difficulties you faced having undergone extreme violence during your formative years.[1] I do not regard the need for specific deterrence or community protection as attracting great weight in my sentencing synthesis here.

[1] Bugmy v The Queen (2013) 249 CLR 571, 594.

36Given the nature of your conduct and the interconnectedness of the 3 offences, I regard them as being capable of being sentenced under a single sentencing order.

37With respect to parity, I note that Mr Aydin pleaded guilty to being a prohibited person in possession of a firearm and was without conviction placed on a six-month community correction order with special conditions. It remains unclear why he was not charged with conspiring with respect to the proposed assault, but that is not a matter for me to adjudicate or to weigh up in sentencing. While I regard his sentence as providing some guidance as a matter of equal justice on Charge 2, there are substantial matters of difference between you as a whole.

38I find your prospects of rehabilitation to be excellent. In arriving at that conclusion I have had the benefit of observing the result of almost 3 years delay since the offending within which time you have proven yourself. Delay in bringing a case to sentence can justify significant leniency, particularly where an offender has undergone substantial rehabilitation.[2] In Stevens’ case,[3] Weinberg JA commented:

Furthermore, delay is an important mitigating factor in this case, and not only insofar as it is relevant to rehabilitation.  The delay in bringing this matter to resolution meant that the uncertainty of outcome hung over the applicant’s head for almost three years.  For a significant part of that time, the applicant faced charges attracting a sentence of life imprisonment. Furthermore, the applicant was subject to strict bail conditions.

[2] R v Merrett (2007) 14 VR 392, 399–400 [32]–[36]

[3] Stevens v The Queen [2020] VCA 170 [60].

Your ongoing work and the support of your family bode well for your continuing progress and further reduction to your risk of further offending.

39The prosecution submits that you should serve further time in custody, albeit months not years, before being released on a community correction order. Your counsel submits and I agree that a combination of factors in this case justify a different approach, namely, the imposition of a CCO alone.

40I am conscious of the guidance given by the Court of Appeal in Boulton's case,[4] on the capacity of a community correction order to be highly punitive, even for serious offending, whilst also offering valuable long-term protection to the community from further offending. The added importance and effectiveness of such an order in the case of a young offender was also noted.[5]

[4]  Boulton v The Queen (2014) 46 VR 308.

[5]  Boulton at [186]-[190].

41I also give significant weight to your entering of a guilty plea in this matter during the COVID-19 pandemic. This is significant and has important utilitarian value, especially at a time when the pandemic has such significant effects on the work of the courts.[6]

[6] Worboyes v The Queen [2021] VSCA 169 at [39].

42I have had regard to the CCO assessment report dated 25 May 2022 which records you as being suitable for such an order in spite of some concerns about your risk of further offending. I note the assessor's recommendations as to conditions.

43I also note the prosecution and your counsel's position this morning as to that assessment.

44If you would not mind standing, please.

45I sentence you on charges of conspiring to engage in a course of conduct including a common law assault, being a prohibited person in possession of a firearm and committing an indictable offence whilst on bail to a single community correction order with conviction for 2 years and 6 months. The conditions of the order include, beyond the mandatory conditions, as follows:

(a)   Supervision,

(b)   Unpaid community service for 250 hours,

(c)   Treatment and rehabilitation for drug use,

(d)   Also for your mental health, and

(e)   Also for programs to reduce offending,

(f)    I will also impose Judicial monitoring with, subject to counsel's submissions, the first proposed monitoring date to be on Monday 25 July at 3.30 pm.

46

In accordance with section 6AAA of the Sentencing Act 1991, but for your guilty plea I would have imposed a combination sentence involving

6 months imprisonment and a community correction order.

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