Director of Public Prosecutions v Mohammad

[2021] VCC 1549

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-00788

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMEER ISLAM MOHAMMAD

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2021
DATE OF SENTENCE:	14 October 2021
CASE MAY BE CITED AS:	DPP v Mohammad
MEDIUM NEUTRAL CITATION:	[2021] VCC 1549

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:            Aggravated carjacking - attempted aggravated carjacking - driving motor vehicle in a manner dangerous - failing to stop when signalled by police officer - driving a motor vehicle while authorisation suspended - driving over the speed limit. 

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:Total effective sentence 5 years and 6 months, non-parole period 3 years and 6 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
For the Accused	Mr L. Barker	Emma Turnbull Lawyers

HIS HONOUR:

1Ameer Islam Mohammad, you have pleaded guilty to one charge of aggravated carjacking and one charge of attempted aggravated carjacking. 

2You have also pleaded guilty to - and ask me to take into account in passing sentence - five related summary offences, namely, driving a motor vehicle in a manner dangerous to the public, two offences of failing to stop when signalled by a police officer to do so, driving a motor vehicle while your authorisation to do so was suspended and driving over the speed limit. 

3All of these offences were committed in the early hours of 17 August 2019.  

4The maximum sentences for the offences are as follows:

Ø  aggravated carjacking - imprisonment for 25 years;

Ø  attempted aggravated carjacking - imprisonment for 20 years;

Ø  dangerous driving and driving while suspended - imprisonment for two years or a fine of 240 penalty units;

Ø  failing to stop for police - a fine of 10 penalty units for a first offence and imprisonment for four months or a fine of 20 penalty units for a subsequent offence;

Ø  exceeding the speed limit - a fine of 10 penalty units.

5You have also admitted a significant criminal history which includes prior convictions for armed robbery, robbery, burglary, theft, possessing a controlled weapon without excuse, assaulting an emergency worker on duty, driving at a dangerous speed and driving whilst authorisation suspended.  As a result of your pleas of guilty to this indictment, you are in breach of a community correction order imposed on 13 February 2019.

6The facts relevant to the offending are set out in detail in the agreed summary of prosecution opening and can be summarised as follows. 

7As to Charge 1 on the indictment of aggravated carjacking, on 17 August 2019, Agha Ali was driving a white 2021 Chrysler Sedan motor vehicle.  His friend, Muhammad Aqil, was in the front passenger seat.  Both were then 29 years of age.

8At approximately 12.15 am, Ali parked the Chrysler vehicle opposite 618 Lonsdale Street in Melbourne.  Ali and Aqil sat in the car talking.  The ignition was on, but Ali had the keys in his pocket.  The windows were closed and the doors were unlocked.  At about 12.20 am, you were depicted on the CCTV footage walking on the southside of the footpath of Lonsdale Street, wearing a dark tracksuit, backwards baseball cap, white and black gloves and carrying a small red bag.

9You walked to the driver's window of the parked Chrysler Sedan and looked inside.  You then crossed the street towards 618 Lonsdale Street and stopped in the middle of the road for a while.  You returned to the Chrysler vehicle and walked back to the driver's side and opened the driver's side door.  You are described by Ali as extremely aggressive.  You pulled a knife partially out of your bag.  Ali described the knife as “big” and said that the portion of the knife he saw was about twice the length of his hand.

10While holding the knife, you yelled at the two victims to get out of the car.  Ali was scared and in shock.  Both victims got out of the car as instructed, fearing for their lives.  As you were holding the door by the handle, you showed Ali part of the knife from your bag and said 'You want me to pull it out?'. 

11As to Summary Charge 11, driving whilst authorisation suspended, you then got into the driver's seat of the Chrysler whilst Aqil was still inside in the passenger's seat.  When Aqil got out you drove away at a fast rate of speed, heading west on Lonsdale Street and turning right at Spencer Street.  Your driver's licence had been suspended on 13 February 2019 and was suspended at that time. 

12As to Summary Charge 4 of driving in a dangerous manner and Summary Charge 6 of failing to stop your motor vehicle when signalled to do so by police: at approximately 12.29 am, police observed you driving on the wrong side of Beach Road between the Esplanade West and Pickles Street in Port Melbourne, with an estimated sped of 70 to 80 kilometres in a 60-kilometre zone, while there was oncoming traffic.

13At the Pickles Street intersection, you drove back onto the correct side of the road.  Police attempted to intercept your vehicle by activating lights and sirens.  You failed to stop and continued driving at a fast rate - estimated by police at more than 130 kilometres per hour - in a 60-kilometre zone on Beaconsfield Parade.  Police engaged in a pursuit as you continued to drive at dangerous speeds while there was other traffic on the road.  The pursuit was terminated when you started approaching the busy area of St Kilda. 

14As to Charge 2 on the indictment of attempted aggravated carjacking, a short time later on the same night your third victim, Bryn Burnes, who was then aged 30 years, was driving his white Mercedes Sedan south on the Nepean Highway in the Edithvale area.

15He had visited a friend in Port Melbourne and was heading home.  Burnes noticed that the white Chrysler Sedan (driven by you) started to follow him about 20 metres behind his vehicle.  As you continued to drive south, you stopped the Chrysler alongside Mr Burnes' vehicle at several traffic lights on the way.  At approximately 12.50 am, Mr Burnes arrived outside a property on the Nepean Highway in Seaford and parked on the street.  You then parked your vehicle in front of his car.

16At that stage, Mr Burnes knew something was not right and decided to pull into the driveway of the property, off the Nepean Highway.  You got out of the stolen Chrysler and ran over to Mr Burnes' car saying 'Get the fuck out of the car'. 
Mr Burnes drove slowly to the back of the property when he noticed you approaching his car.  He made sure his doors were locked.  You came up to the driver's window and tried to open it.  You then hit the window and told him again to get out of his car.  You were still swearing.

17Mr Burnes saw you pull out a knife as you approached the driver's door and tried to open it.  The knife was about 25 centimetres long and was a hunting style knife.  You continued swearing and repeating your demand for him to get out of the car.  He pressed his horn and started screaming back at you.

18You then ran towards the street, got back into the stolen Chrysler and drove south along the Nepean Highway.  Mr Burnes immediately called the police.  He told police 'I'm glad I pressed the lock button - there was a point where I thought if that knife comes through the window, I'm gone.  I remember it being big'.

19As to Summary Charge 12 of exceeding the speed limit, at approximately
12.55 am you were seen by police driving south on the Nepean Highway in Frankston.  At approximately 1 am, you activated a fixed traffic camera at the Nepean Highway and Davey Street intersection: you were travelling at 94 kilometres per hour in a 60-kilometre per hour zone. 

20As to Summary Charge 10 of failing to stop your motor when signalled by police, which was the second of that offence on that night, police again attempted to intercept you.  Again, you failed to stop as directed.  A pursuit was initiated and a coordinated approach was taken by police with the inclusion of further units and highway patrol specialists, and the police Airwing became involved.  You were pursued through Mount Eliza, Mornington and Mount Martha, eventually turning northbound on the Mornington Peninsula Freeway.

21Stop sticks were deployed by police on several occasions throughout the pursuit, causing the tyres of the Chrysler vehicle to deflate.  You continued to drive northbound on the Peninsula link freeway, eventually coming to a stop in a gravel trap on the western side of the freeway near the Rutherford Road overpass.  Pursuing police found the vehicle crashed through a fence into a ditch.  You ran from the vehicle through parkland and were subsequently located by police. 

22You were arrested and conveyed to the Frankston police station for interview.  You declined to answer questions from the police.  You have been in custody since your arrest. 

23Mr Ali and Mr Burnes both submitted victim impact statements.  Unsurprisingly, they both suffered lasting adverse emotional and psychological effects from what must have been a very frightening experience for all three victims.  Indeed, for Mr Burnes to have been aware that you were effectively stalking him as he drove south on the Nepean Highway towards his home, and to have you storm his car armed with a large knife once he stopped driving, must have been a truly terrifying experience.

24I now turn to matters personal to you. 

25You were born in May 1991 and are now 30 years of age.  You were 28 years of age at the time of this offending.  Your counsel tendered submissions dated 14 October 2020 and supplementary submissions dated 28 September 2021.  He also tendered three reports from psychiatrist Dr Owens dated 2 February 2020, 6 May 2020 and 2 September 2020 respectively.

26Dr Owens describes much of your personal history, which I shall not repeat in detail but summarise as follows.  You were born in Melbourne and grew up in the Noble Park area, the eldest of three children.  Your parents divorced when you were nine and your father migrated to Jordan.  You spent about two years living with your paternal grandparents in Jordan, returning to complete Years 8 to 11 at schools in and around Melbourne.

27You apparently showed ability at school, both academically and at sports, but it seems you became a troublemaker.  After school, you completed a pre-apprenticeship in mechanics, but apparently did not like it.  You worked in panel-beating, then in short-term cash-in-hand jobs.  Your longest job was in a cleaning company when you were about 17 years of age.  You had a history of getting into fights and not getting along with people at work.  You were on a Newstart allowance when you were arrested for these offences.  You have not been in a relationship with a woman since you were a teenager.

28You told Dr Owens about using illicit drugs of various kinds between ages 16 and 25 years, but you denied any problem with drugs.  That denial by you does not, however, sit comfortably with your history, as described by Dr Owens, of psychotic episodes associated with methylamphetamine use.  You have had serious difficulties with mental health since you suffered your first episode of psychosis in May 2015 when you turned 24 years of age.

29You have had four psychiatric inpatient admissions since that time, the last of which was in 2018.  You have also had periods of community mental health treatments.  Dr Owens referred to a collateral history of methylamphetamine use over the last several years, which has caused a worsening psychosis and was a relevant factor in all four psychiatric inpatient admissions.  I note that your criminal record shows convictions for possession of methylamphetamine in 2013 and 2016.

30In his report dated 2 September 2020, Dr Owens concluded that 'on balance' you have:

' an enduring psychotic disorder, probably schizophrenia, that has been associated with a persistent degree of disorganisation of thought, recurrent presentations with acute psychosis - albeit often associated with stimulant abuse … and difficulties maintaining employment and relationships.’

31Dr Owens was unable to determine clear signs that your offending behaviour was related to mental illness.  It was not argued on your behalf, that Verdins principles applied to the sentencing discretion.  But I take into account the contents of Dr Owens' reports as part of my more general consideration of the appropriate sentences.  Your counsel urged me to give full credit for your pleas of guilty, particularly in these strained Covid times.  I propose to do so and to reduce the sentences and the overall sentence to an appreciable degree.  I also take into account the more onerous conditions of your incarceration, both whilst on remand and whilst you are serving your sentence.

32Your counsel also urged me to find substantial compelling circumstances that are exceptional and rare, in justification for not imposing the mandatory minimum non-parole period of not less than three years’ imprisonment.  Whilst I have regard to that mandatory minimum as a guidepost, in view of the sentences and the total effective sentence I intend to impose, it will be apparent that I am not persuaded that ordering a non-parole period of less than three years is appropriate in all the circumstances of this case.

33I accept the submission that the offending in this case may not be at the most serious end of the spectrum, but nonetheless I regard it as very serious and well above the level of 'moderate' that was urged upon me by your counsel.  It is the nature of carjacking that the offence is generally opportunistic and is performed in a short period of time. 

34I note, however, that in relation to Charge 1, before threatening your victims aggressively with a knife, you took time to assess the situation - it was not a spur of the moment decision.

35You then drove off at a fast rate and were soon engaged in highly dangerous driving, involving driving on the wrong side of Beaconsfield Parade, Port Melbourne against oncoming traffic and then driving at speeds estimated at up to 130 kilometres per hour in a 60-kilometre per hour zone in your initially successful quest to avoid the pursuing police, who had requested you to stop.

36The police officers involved wisely called off their pursuit to avoid increasing the danger to the public.  It is a dilemma faced by police, and in my view, requires a sentencing court to impose sentences designed to deter others from endangering the public in attempting to escape justice. 

37Your attempt at carjacking, the subject of Charge 2 on the indictment, was in my opinion a very serious example of that offence.  By the time you started to follow Mr Burnes' Mercedes on the Nepean Highway at a distance of about 20 metres, you had opportunity to reflect on the nature and probable consequences of your conduct up to that point.  You had extended opportunity to reconsider your intentions in relation to Mr Burnes and his vehicle before you engaged in your attempt to hijack his car.  As I noted earlier, you must have been aware that your actions would have terrified Mr Burnes.  Indeed, you must have intended to do so.

38Your conduct that morning, in speeding and dangerous driving and failing to stop when requested to do so by police and in your continuing efforts to avoid apprehension, was very serious offending of its kind, requiring me to give proper value to deterring others from similar selfish and dangerous conduct, and hopefully deterring you from similar conduct in the future.

39Throughout this offending, your authorisation to drive a vehicle was suspended.  Viewing the series of offences to which you have pleaded guilty, I regard them individually and collectively as serious offences of their kind and I regard your moral culpability as high.  Indeed, the whole course of your offending conduct on 17 August 2019 was grossly self-indulgent, nasty and utterly deplorable.  You deliberately and callously set out to terrify your victims.  Your highly dangerous attempts to evade police are to be condemned in the strongest terms.  You are fortunate you did not cause death or serious injury to innocent road users, or to yourself.

40You were offered leniency by the Dandenong Magistrates' Court in February 2019 for offences which included driving at a dangerous speed and driving whilst your authorisation was suspended, in that you were given the opportunity of pursuing rehabilitative treatment under a community correction order.  You spurned that opportunity six months later by this offending.  I cannot presently see any basis to be other than pessimistic about your prospects of rehabilitation.

41In addition to the sentencing principles of general deterrence and specific deterrence I am required to punish you and denounce your offending adequately, having regard to the maximum sentences for each offence.  Given your criminal record, I have also considered the need for protection of the community from the prospect of your future offending.  I have therefore sought to impose sentences aimed at achieving these objectives, as well as according discounts of sentence for your pleas of guilty and the deprived conditions of incarceration in the current Covid environment.

42As I am required to do, I pay heed to current sentencing practice, for which task I have been assisted by counsel for both parties.  I have also given careful thought to the totality of sentences and the fixing of a non-parole period which offers you some hope for the future. 

43Balancing these factors, I sentence you as follows. 

44On Charge 1 on the indictment, you are convicted and sentenced to four years’ imprisonment. 

45On Charge 2 on the indictment, you are convicted and sentenced to three years and eight months’ imprisonment. 

46On the related summary offence of driving in a manner dangerous, you are convicted and sentenced to 15 months’ imprisonment and I cancel any driver's licence or permit you hold and disqualify you from obtaining a driver's licence or permit for a period of four years from today.

47On the first charge of failing to stop when signalled by police to do so, you are convicted and fined $800. 

48On the offence of driving whilst your authorisation was suspended, you are convicted and sentenced to three months’ imprisonment. 

49On the charge of exceeding the speed limit, you are convicted and fined $600. 

50On the second charge of failing to stop when signalled by police to do so, you are convicted and sentenced to two months’ imprisonment.

51The sentence on Charge 1 on the indictment is the base sentence. 

52I order that 12 months of the sentence imposed on Charge 2 and six months of the sentence imposed for the offence of driving in a manner dangerous be served cumulatively upon the sentence on Charge 1 and upon each other. 

53The total effective sentence is therefore five years and six months’ imprisonment. 

54I order you to serve a period of three years and six months’ imprisonment before being eligible for parole. 

55As far as the pre-sentence detention is concerned counsel, we have calculated 789 days.  Is that correct?

56MR BARKER:  Agreed, Your Honour.

57MS MALOBABIC:  It is, Your Honour.

58HIS HONOUR:  I declare a period of 789 days of pre-sentence detention, not including today, as time to be reckoned as served on the sentence that I have imposed and I order that those details be entered into the records of the court. 

59Pursuant to s6AAA of the Sentencing Act, I declare that, but for your pleas of guilty, the sentence I would have imposed is a total effective sentence of eight years’ imprisonment with a non-parole period of six years. 

60Are there any other matters, counsel?

61MR BARKER:  No, Your Honour.

62MS MALOBABIC:  No, Your Honour.

63HIS HONOUR:  Thank you.  Adjourn the court, please.

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