Director of Public Prosecutions v Mohammad

[2019] VCC 1150

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02379

DIRECTOR OF PUBLIC PROSECUTIONS

v

HANI MOHAMMAD

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 July 2019
CASE MAY BE CITED AS:	DPP v Mohammad
MEDIUM NEUTRAL CITATION:	[2019] VCC 1150

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Worrell	Office of Public Prosecutions
For the Accused	Mr C. Pearson	C Marshall & Associates

HER HONOUR: 

1Hani Mohammad, you have pleaded guilty before me to two charges of theft, one charge of armed robbery, one charge of conduct endangering persons and one charge of an aggravated offence of recklessly exposing an emergency worker to risk by driving. 

2The facts underlying your offending are as follows.  On 1 August 2018, you were released on bail in relation to a theft of motor vehicle which included a residential curfew condition between 9pm and 6am. 

3On 3 August 2018, at about 8.50am, a Ms Kuar parked her maroon Nissan Pulsar sedan at the Melton railway station and caught a train to work.  When she came back at about 11.45 the car was stolen and she reported this to police.  The vehicle was recovered on 8 August in Kensington where it was noted the driver's rear window had been broken. 

4On 7 August 2018, about 8.30am, Ms Drew parked her grey Nissan Pulsar in Kensington and caught the train to work, discovering it was gone when she returned at 6.30 and saw shattered glass on the ground, which was consistent with the passenger side window being broken.  She saw a maroon Nissan Pulsar parked directly across the road from where hers was, which was identified later by police as the car stolen on 3 August.

5On 7 August 2018 at about 5.15pm, a 16-year-old student, Sam Rodda, was walking home from the Albion train station along Sydney Road while listening to music on his iPhone.  CCTV footage later showed him walking along the footpath with a grey Nissan Pulsar essentially following him, which was driven by you.  You drove past Mr Rodda, did U-turns and then stayed close to him for a while.  You then followed Mr Rodda into Adelaide Street where you stopped the car and asked him for directions to Sunshine.  You then said to him, 'Listen to me, I'm going to give this to you straight.  If you don't give me your phone in 5 minutes' and pulled out a knife which you pointed at him and started counting down from five.

6Mr Rodda threw his phone into the car and you drove off.  The scenario as I understand it is that you stole the maroon Pulsar sedan on 3 August and then dumped this when you stole the second car, the grey Nissan Pulsar.  And your theft of both vehicles underlie Charges 1 and 2 on the indictment.  Your offending against the 16-year-old boy just walking along the street with his iPhone underlie the armed robbery charge.  A witness, Alexander Hay, ran after the car and obtained a partial numberplate, which matched that of the grey, stolen Nissan Pulsar.

7In the early morning of 10 August, you were seen driving the stolen grey Nissan Pulsar in the Werribee area and were seen to be driving in a dangerous manner by police between 3.42 and 4.05 am.  During this time you were being pursued by a number of police cars which had lights and sirens activated.  There were observations of you travelling at 125 kilometres per hour in an 80 kilometre zone and 150 kilometres per hour in a 100 kilometre per hour zone.  You drove without headlights and on the wrong side of various roads including the Princess Freeway.

8You drove on the wrong side of the road and forced two police members, Senior Constable Gillet and Constable Robinson, to take evasive action to avoid a head on collision and pull off the road.  Both police officers were profoundly shocked by that incident.  There was civilian traffic on the road and two people called 000.  All of this conduct underlies Charge 4 on the indictment, conduct endangering persons.  Towards the end of the police chase you were driving on the Princess Freeway and in trying to avoid Stop Sticks erected by police, ran into barriers that separated the lanes of traffic in the middle of the road.

9Leading Senior Constable Warner was driving a marked police car with Leading Senior Constable Stogg as an observer, and he pulled in behind your car in an attempt to stop you from reversing and continuing your dangerous driving.  You looked over your left shoulder directly at them then reversed towards the police car at speed from about 8 metres away, colliding with the left-hand front of the police vehicle.  You then drove forward towards wire rope barriers and reversed a second time and collided a second time with the front of the police car.  This was described as ramming.

10The prosecution case is that your offending was aggravated by the fact that you were driving a stolen vehicle.  These actions underlie Charge 5 on the indictment, the charge of aggravated offence of recklessly exposing an emergency worker to risk by driving.  Ultimately you were arrested at the crash site at about 3.36am and when asked where the knife used by you in the armed robbery was, you were told it was in the glove box.  You were asked where the mobile phone was and you said it was in one of your pockets or in the car.  Police recovered both the knife and the mobile phone.

11At all times whilst you were driving you were unlicensed as your learner's permit was cancelled on 19 February 2016. You also pleaded guilty to a summary charge uplifted by the Criminal Procedure Act to the charge of unlicensed driving. You were also in breach of bail and this underlies a second summary offence to which you pleaded guilty and which was dealt with in this hearing, contravening a condition of bail. And, finally, you committed the indictable offences whilst on bail, which comprises a third summary offence to which you have also pleaded guilty, that is contravening a bail condition. You made a no comment of interview. The matter was resolved at committal mention and pleas were entered and it is accepted that this was an early plea.

12The maximum penalty for theft is 10 years' imprisonment.  The maximum penalty for armed robbery is 25 years' imprisonment.  The maximum penalty for conduct endangering persons is five years' imprisonment.  The maximum penalty for recklessly exposing an emergency worker to risk by driving is 10 years' imprisonment.  The maximum penalties for the charges of committing and indictable offence on bail and contravening bail conditions is 33 months' imprisonment or 30 penalty units.  The maximum penalty for the charge of possessing a controlled weapon, which was also a summary charge to which you pleaded guilty in relation to the knife is one year imprisonment or 120 penalty units.  The maximum penalty for unlicensed driving is one month imprisonment or 10 penalty units. 

13I now turn to your personal circumstances.  You are now 22 years old.  You are the oldest child of your parents who immigrated here as refugees from Pakistan.  Your father is Iraqi and your mother was Kurdish.  You were born in New Zealand before your parents came here.  You have a younger brother, Adam, who was born in 2000 which was the year your family moved to Australia.  Early in your life child protection services became involved with your family because of your mother's physical aggression towards you which was linked to post-natal depression and other mental health problems.

14Your parents separated in 2003 when you were six and both you and your brother stayed with your father.  There was continuing involvement by the Department of Health and Human Services between 2006 and 2008 due to your father's alcohol abuse and some violence towards you.  Your mother formed a second relationship by which she had four more children.  You had difficulties from the start at school.  Ultimately you were expelled from Braybrook Secondary College, moving to Copperfield College where you spent a few months before being expelled - you were asked to leave because of stealing money from the principal's office.  You then attended Sunshine North Secondary College for a short time until in 2012 when you were again expelled for stealing money from other students, fighting and non-attendance.

15In 2013 you went back to school at St Joseph's Flexible Learning Centre but did not attend very much.  You have had very little contact with your mother since your parents separated when you were six.  You began using alcohol when you were about 12 and described periods of binge drinking to psychologist David Ball, whose report dated 4 February 2016, was tendered on the plea.  This was a fairly old report because at the time you committed this offending you had been out of gaol only a matter of weeks, after serving a sentence imposed by Her Honour Judge Cohen of this court on 19 February 2016, for almost precisely the same sort of offending (that offending involved multiple thefts of motor vehicles, dangerous driving, police pursuits and, again, armed robberies).  Now, on that occasion Her Honour sentenced you to three years' imprisonment with a minimum term of two years.  It appears you did not apply for parole and simply served the entirety of your sentence and then going home to live with your father.  You apparently fell back into drug use very quickly and then committed the offending which has brought you before the court today.

16You have a long prior criminal history beginning in 2012.  You have been dealt with on numerous occasions for burglary, theft, robbery, shop theft, unlawful assault, intentionally damaging property, contravening bail conditions, carrying controlled weapons, going equipped to steal, numerous driving offences and in 2016, as I said, you were dealt with for two charges of armed robbery.  In other words you have a continuous offending history, almost from the time that you began offending.

17It is very difficult to know how to deal with you, Mr Mohammad.  There have been numerous psychological assessment of you which shows that you have some intellectual difficulties but not regarded as suffering any intellectual disabilities.  A neuropsychological report by Dr Peter Dowling noted that you have got a sensitivity to noise which would have made school extremely difficult for you.  But what was concerning in relation to that report, which was again an old report prepared for the plea before Judge Cohen, is it was stated that you lack respect for other people's property, which is entirely clear.

18Because of your young age and because of this continued offending that you have engaged in, I ordered an extended community corrections assessment to see if there is anything that could be done.  No one likes to see a young man like you who is as entrenched in offending as you are without something hopefully being able to be done.  However, that report was not of assistance.  One of the difficulties for you is you have a reasonable relationship with your father and your younger brother, but he will not have you at home.

19According to this report you are perfectly comfortable in gaol.  You appear now to be interested in the Islamic religion which is followed by your father.  You made it very, very clear that you do not want to be placed on a Community Corrections Order.  Your big aim is to become a champion boxer and you go the gym a lot to that effect.  Essentially what was said at the end of the report was:

'There are several elements of Mr Mohammad's engagement during this interview that will likely prohibit him from living a pro-social life upon release'.

20They include but are not limited to, your attitudes towards societal conventions, your apparent cosiness in state custody, your lack of maturity, your absence of consequential thinking and extensive collateral information which highlights a lack of acquiescence in a custodial environment.  What that means is that it is going to make it difficult for you to live in the community without offending.  The report details you regularly echoing your preference for remaining in custody rather than being in the community on a CCO.  'I don't know how to live on the outside' you remarked, 'It's comfortable here'.

21You also were asked by the assessing officer how you were going to make a living when you got out of gaol and you told him, 'Well, you know how'.  Which means that you see yourself as probably going back to stealing in order to get money, both for living and for drugs.  You described your thieving behaviour as necessary to your survival and said that it was easy to do this.  You also seem to have very little insight into the seriousness of what you did.  You could have easily killed someone on that day, Mr Mohammad, and you could have easily killed someone at the time you were committing the offending for which Judge Cohen sentenced you.

22It is quite clear the only way I can deal with you is by way of a term of imprisonment.  This offending occurred, as I have said, only a matter of weeks after your release from gaol in relation to Judge Cohen's sentence.  It is quite clear that the main principle that I have to think of when I am sentencing you is the danger you present to the community.  My concern is you are going to kill someone.  You will not mean to.  But you think it is all right to knock off cars.  You think it is all right to engage in police chases.  You think it is all right to steal things.  You think it is all right to hold up a 16-year-old kid with a knife and steal his iPod.  You think all that sort of offending is all right and there is nothing I can do about it.

23There is nothing that anybody seems to be able to do about it.  If that is the way you are going to view your life, that is you are comfortable in gaol and you see no other way of living your life, well I can certainly make sure that happens,
Mr Mohammad.  You are making it very easy for the court to do this.  As I have said, your offending pattern and the attitude you displayed in the report from Corrections mean that the main thing I have to be concerned about is what danger you present to the community and you present a considerable danger.  As I said to you at the start of this, Mr Mohammad, you are choosing this life and your life is basically going to be longer and longer stretches in gaol until you decide you are sick of it.  And that may take you ten years.

24Change usually happens when men are between about 31 and 35.  They realise they have not got a life, they have not got a family.  If they have kids, they are terrible fathers because they never see them.  They have not got any life skills.  All they have got is their mates in gaol.  And I am sorry to speak so bluntly and harshly to you but you do not seem to understand the life that you think that you are choosing that is preferable for you, is not going to be a satisfying one.  It will be a sad, lonely life where everybody you love will have become sick of you and have found you too difficult to deal with and the only friends on the outside that you have will be other people like you who are in and out of gaol and who use drugs.  How many of your mates have come to see you in gaol?

25OFFENDER:  Well, all my mates are already in gaol.

26HER HONOUR:  All right, well good, there you are, nice and comfortable.  But that is going to be your life.  If you want to have a family, if you want to have children, if you want to have the sorts of emotional relationships that are important in people's lives that make them happy - you are going entirely the wrong way about it.  The only people who are going to care about you and the only people who you will care about are people who are either offending like you or in gaol with you. 

27Now, I cannot make you change your mind but your prospects for rehabilitation in my view are really poor and that is a really important factor that I have to take into account in sentencing you.  Until you decide you want to change the life that you have got, you are going to be a danger to the community and so you are going to have to be kept in gaol for longer and longer periods of time.  The normal matters that a court would have taken into account such as your age, your youth, the difficulties you have had in your childhood and so forth, simply take a second seat to the danger that you present.

28I am therefore going to sentence you to a term of imprisonment which is going to be quite a bit more than the term of imprisonment that Judge Cohen gave you.  Give me a moment, thank you.  Yes, thank you.  Can you stand up please, sir?

29On Charge 1 you are sentenced to nine months' imprisonment.  On Charge 2 you are sentenced to nine months' imprisonment.  On Charge 3 you are sentenced to a term of three years and six months.  On Charge 4 you are sentenced to two years' imprisonment.  On Charge 5 you are sentenced to 18 months' imprisonment.  On the Charge of committing an indictable offence on bail, you are sentenced to one month's imprisonment.  On the charge of contravening conditions of bail, you are sentenced to one month's imprisonment.  On the charge of possessing a controlled weapon, you are sentenced to one month's imprisonment and on the charge of unlicensed driving, you are sentenced to two weeks' imprisonment.

30The base charge will be the charge imposed on Charge 3, that is three years and six months.  I order that three months of the sentence imposed on
Charge 1, three months of the sentence imposed on Charge 2, 12 months of the sentence imposed on Charge 4 and 12 months of the sentence imposed on Charge 5 be served cumulatively to the sentence imposed on Charge 3 which should give a total effective sentence of five years.  I order that you serve a minimum term of three years and six months.

31What is the PSD please?  Have a seat.

32MS WORRELL:  It is 350 days, Your Honour, not including today.

33HER HONOUR:  I declare that you have served 350 days by way of pre-sentence detention.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of six years and order that you serve a minimum of four years.  Thank you, you can take the prisoner down.

34OFFENDER:  See ya.

35HER HONOUR:  Thank you.  Thank you.

36MR PEARSON:  If Your Honour please.

37MS WORRELL:  As Your Honour pleases.

38HER HONOUR:  I thank counsel for their assistance and I will stand down to 10.30, thank you. 

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