Director of Public Prosecutions v Mohammad

[2016] VCC 162

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01701

DIRECTOR OF PUBLIC PROSECUTIONS

v

HANI MOHAMMAD

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 January 2016, 19 February 2016
DATE OF SENTENCE:	19 February 2016
CASE MAY BE CITED AS:	DPP v Mohammad
MEDIUM NEUTRAL CITATION:	[2016] VCC 162

REASONS FOR SENTENCE
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Subject:  Sentencing; multiple charges               

Catchwords:  Pleas of guilty; seven charges of theft of motor vehicles; dangerous and negligent driving without drivers licence; armed robbery; admissions made in police interview to crimes not reported; attempted armed robbery; young offender; rehabilitation prospects taking into account steps taken in adult custody

Legislation Cited:     Sentencing Act 1991 (Vic) ss 6AAA;

Cases Cited:       Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342

Sentence:TES: 3 years imprisonment with a non-parole period of two years for indictable offences with 249 days pre-sentence detention reckoned served. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	OPP
For the Offender	Mr P. Bloemen	C. Marshall and Associates

HER HONOUR: 

1Hani Mohammad, you have pleaded guilty to 19 charges on an indictment and also to two summary charges which you have agreed to have heard by this court.  You have pleaded guilty to seven charges of theft, six being of cars and one of petrol; one charge of attempted theft of a car; three charges of dangerous or negligent driving while being pursued by police; two charges of armed robbery; three charges of obtaining property by deception; two charges of attempted armed robbery; and one of attempted robbery. The summary charges are being a learner driver without having an experienced driver sitting next to you, and committing an indictable offence whilst on bail.

2The maximum penalty for each charge of armed robbery is 25 years' imprisonment.  For each charge of theft the maximum penalty is ten years' imprisonment.  For attempted armed robbery it is 20 years' imprisonment; for attempted robbery, ten years' imprisonment; for attempted theft, five years' imprisonment.  For dangerous or negligent driving whilst being pursued by police, three years' imprisonment. The two summary charges carry much lesser penalties, namely three months' imprisonment for committing an indictable offence whilst on bail, and
20 penalty units for not having an experienced driver beside you when driving as a learner driver. 

3It does not take advanced mathematics to realise that if I were to impose anywhere near each of those maximum penalties you would remain in prison for the rest of your life.  That is not going to happen, but you must not overlook that these maximum penalties set the comparative rating of seriousness with which parliament regards offences of this nature.  All of the maximum penalties here, but in particular those for armed robbery, attempted armed robbery, theft and attempted robbery, indicate that charges of this nature are regarded very seriously by Parliament on behalf of the community.

4All of this offending occurred between 29 May and 11 June last year - 2015.  That is, in barely a two week period.  At that stage you were aged 18.  At the time you were barely three months past a sentence of youth detention for a considerable number of similar offences.  You were also on bail for alleged offending in the week after your release, and you were on a Community Corrections Order which had been imposed for similar offending as well as for breaches of bail.  That Community Corrections Order had been imposed on 8 May; that is just three weeks before the first of the offences for which I sentence you.

5You engaged in an offending spree which was disgraceful and needlessly damaging and frightening for the victims of your offences.  It is of real concern that you appear to have simply been continuing, if not scaling up, the frequency and nature of offences in which you had engaged over the previous couple of years and in the previous months.

6Details of each of the offences that bring you before me are set out in the Crown opening, which is Exhibit 1, and I shall not repeat them all here.  However, some description is necessary to explain your role in each and comparative seriousness of these offences.

7On Friday 29 May 2015, between 6.30 and 9.30 pm, you stole a silver Nissan sedan from Werribee Plaza multi-level car park.  When found three days later, the vehicle had significant damage and was assessed as a write-off by the owner's insurance company.  It was worth approximately $5,000.  When subsequently interviewed by police, you admitted this offence and that you had used a vice grip to break the ignition barrel and then a flat head screwdriver to start the car.  This theft is Charge 1.

8On the afternoon of Sunday 31 May, you stole a 1997 silver Nissan sedan, valued at around $3,000 from Laverton railway station car park.  When found three days later this vehicle had damage to the ignition barrel.  You admitted stealing it when interviewed by police.  This theft is the basis of Charge 2.

9The following day, at Williams Landing railway station car park, at approximately 8.30 pm, you attempted to steal a silver Mitsubishi sedan.  You gained entry by smashing the rear driver's side window and attempted to start it, causing damage to the ignition barrel.  However, police were patrolling that car park, observed you walking away from the vehicle and get into a nearby Nissan, that being the one you had stolen, the subject of Charge 2.  After checking and confirming that it was a stolen vehicle, police attempted to intercept you.  However, you failed to pull over and accelerated away.  Police followed, and you reached a speed of 110 kilometres per hour in a 60 zone.  As you reached an intersection where there was backed up traffic at a red light, you mounted the median strip, crossed the intersection and travelled on the wrong side of the road before turning into the crossroad.  The police pursuit was terminated due to your dangerous actions.  When subsequently interviewed by police you admitted these offences.  These events give rise to Charge 3 of attempted theft of the car and Charge 4 of dangerous or negligent driving whilst pursued by police.

10Next day you stole another grey Nissan from Werribee Plaza car park.  It was valued at approximately $5,000.  You had been seen on CCTV footage earlier that day at the shopping centre stealing a vice grip, screwdriver and scissors, which are said to be the tools used by you to gain entry to motor vehicles, but there is no separate charge of theft in respect of those tools.  They are the subject of a disposal order that I will be making.  This vehicle, that is the one you stole that day, was not found until after you had been interviewed by police on 16 June, when you told them where it had been abandoned.  There was significant damage to the tyres, driver's side lock and ignition barrel.  The theft of this car is Charge 5.

11On Thursday 4 June, at approximately 9.30 pm, you were driving a grey car on St Kilda Road, Melbourne and had a front seat passenger.  You stopped beside a man who was delivering pizzas by bicycle.  Your passenger aggressively demanded this man's wallet and threatened to hurt him, but he said that he did not have a wallet with him, and your passenger then pulled out a knife and pointed it at him through the open window.  The man continued to plead that he did not have a wallet on him, and you then spoke with your passenger briefly, who then demanded the pizza that was to be delivered.  You and your passenger then drove off with the pizza.  This incident was not initially reported to police, but as you described it when interviewed by them on 16 June, they commenced enquiries with the pizza chain involved and through that were able to identify the victim who then provided a statement. You will get credit on your sentence on this charge because it would probably not have been discovered by police had you not revealed it and admitted your involvement.  Nevertheless, these events give rise to a charge of armed robbery, that is Charge 6.

12As I have already said, armed robbery is regarded as a very serious charge because it involves both the dishonesty of theft with the use of a weapon and the seriousness is reflected in the 25 year maximum penalty.  This victim was out alone at night doing his job and the attitude of you and your passenger of picking on him in that context was disgraceful and cowardly.

13Later the same night, in fact about half an hour later, you were driving a grey Nissan on Flinders Street, Melbourne.  You failed to stop at a red light.  That also is not the subject of a charge here.  You turned right into Russell Street, which action was seen by police in a stationary divisional van at the intersection.  They pulled up next to your vehicle and saw you in the driver's seat and that you had a passenger and they directed you to wind down your window and pull over, however you then drove off along Russell Street.  Police pursued you with lights and sirens, but as you would not pull over, the pursuit was terminated when you travelled into Swanston Street into a section that was reserved for trams only.  You subsequently made admissions to this offence.  It gives rise to Charge 7 of dangerous or negligent driving whilst pursued by police.

14The same night, less than an hour later, you were driving the same stolen grey Nissan and approached a Mr Prasannakumar, who was walking towards Highett railway station.  Your vehicle pulled up beside him and your front seat passenger, a man, got out of the front passenger seat armed with a knife and made demands for Mr Prasannakumar's wallet and money, while another man got out of the back seat and punched Mr Prasannakumar to the head before stealing his wallet from his back pocket.  The wallet contained a bank debit card.  You were the driver and remained in the car during this incident, but when the two males got back into the car, you drove off with them and the stolen wallet and you adopted their offence of armed robbery – Charge 8. 

15Mr Prasannakumar sustained injuries to his head and needed medical treatment.  Although I do not have a victim impact statement from him, I infer that this would have been an extremely upsetting and frightening incident for him.  You subsequently told police in your interview that your co-offenders in this incident were named “Tommy” and “Abdi”, but I am told that they have not been charged for this offending, or at least not to date. 

16Less than half an hour later, still on the night of Thursday 4 June, Mr Prasannakumar's bank debit card was used to purchase goods at McDonalds in Elsternwick, then a half hour later at the Elsternwick Hotel for two transactions.  Each use of the debit card is the basis for a charge of obtaining property by deception, namely the goods purchased with the stolen card.  Those are Charges 9, 10 and 11.

17Later the same night you were still driving the stolen grey Nissan when it was observed by police on Home Street, Elsternwick.  One police constable observed a McDonalds packet and drink cup being thrown from the passenger side of the vehicle, made a U-turn and positioned the vehicle in front of yours.  Three males inside were observed inside your car.  When two police got out of the vehicle, you started to reverse and began driving north on Home Street away from police.  Although followed by police with lights and sirens, you did not stop, and a pursuit was initiated during which you travelled on the wrong side of the road.  The pursuit was terminated at an intersection due to your erratic driving.  You subsequently made admissions to this incident and it gives rise to Charge 12 of dangerous or negligent driving while pursued by police.

18On Friday 5 June, at approximately 8.15 pm, you were driving a stolen grey Nissan which approached a Mr Fernando, who was walking along Warringa Crescent, Hoppers Crossing.  You had a front seat passenger who produced a five inch folding knife and demanded money from Mr Fernando.  He got his mobile phone out in an attempt to contact police and you reversed the car quickly and drove off.  The victim was able to photograph the registration of the offending vehicle which he provided to police.  You subsequently made admissions in your record of interview to this incident and it gives rise to Charge 13 of attempted armed robbery.

19On Saturday 6 June, at approximately 3.56 pm, you were driving the same stolen grey Nissan which approached another man, Mr Mohammed Momen, while he was standing outside a café in Derrimut Road, Hoppers Crossing.  This time you were alone and you asked him for $10 through the driver's side window, and when he said he had no money you produced a silver switch blade knife and demanded he hand over some money.  When he did not you drove off.  You subsequently made admissions to this incident and it gives rise to another charge of attempted armed robbery, that is Charge 14.

20On the same day, some hours later, you were driving the same stolen grey Nissan.  At a petrol station on Derrimut Road, Hoppers Crossing, you were observed in that vehicle to get out of the car and put $64.22 worth of unleaded petrol into it.  A second person in the passenger seat was also observed.  You drove off without making any attempt to pay.  This is the basis of Charge 15 of theft of the petrol.

21Next morning, that is Sunday 7 June, between 5 and 7 am, outside McDonalds in Hoppers Crossing near the train station, you and Tommy were in the stolen grey Nissan.  You approached two men of Indian appearance who were walking to the station and asked for their wallets, but they ran off and you then left the area.  This incident was not reported to police and only came to their attention when you described it during your record of interview.  In fact the victims have never come forward so have never been identified.  You will not be receiving as high a sentence for this incident because it would not have been known to police had you not admitted it during your interview.  This gives rise to Charge 16 of attempted robbery.

22On 7 June, between 5 and 5.30 pm, you stole a 1999 blue Nissan sedan from outside an address in Orange Street, Braybrook.  Two days later the vehicle was located in Sunshine and would not start as there was damage to the clutch.  You subsequently admitted this theft and told police you dumped the car shortly after stealing it as you did not know how to drive a manual and as a result damaged the clutch.  This is the basis of Charge 17 of theft.

23Between 9 and 10 June, you stole a silver Subaru sedan from Essex Street, West Footscray.  It was valued at approximately $4,000 and the same day was located in Hoppers Crossing.  That is the basis of Charge 18 of theft.

24On 11 June you stole a white Nissan from the Albion railway station.  This vehicle belonged to Mr Davies, who attended court on the first day of the plea hearing for your case.  He made an oral victim impact statement because his written one had not reached the court and indeed still has not reached me.  The vehicle was valued at approximately $4,000 and was also damaged when recovered five days later.  Mr Davies said that it was declared a total write-off by his insurer's loss assessor.  Mr Davies described that it was not merely inconvenient that his car was stolen, but that it had further personal impact and upset on his family.  It turned out that he had a young child, only months old at the time, for whom he and his partner had carefully selected a child seat which was positioned in the car you stole, and you had thrown it out of the vehicle in the process of stealing it.  This caused them a sense of personal affront and upset.  They also did not have the use of the vehicle for some weeks until insurance money enabled them to purchase a replacement car, and the effect was that because it was winter they were concerned about going out with the baby as they did not have a vehicle in which to convey the child warmly and safely.

25I was told by your counsel that on hearing this information, it impressed on you that there was impact on individuals from your offending.  If that message did get through to you, it is good, but you have since been interviewed by professionals, and in particular an assessor for the Youth Justice system, who said you did not show much insight into the impact of this type of offending of thefts of cars on the victims.  The theft of Mr Davies' car was the basis of Charge 19.

26There is also a single summary charge of being a learner driver not having an experienced driver seated beside you.  Of course that really could have applied to each of the incidents in which you stole a car or were driving and evading police, but this is a single charge and I take it only as that.  The maximum penalty for this offence is a fine of up to 20 penalty units, so it will require a penalty separate from any imprisonment.

27The final summary charge is of committing an indictable offence whilst on bail.  Again, this is a single charge and I granted leave to the prosecution to amend it to being specific to a charge of attempted robbery.  I treat it as a single charge and it is not said to be representative, but I do note that every one of the 19 indictable offences for which I am sentencing you was committed whilst you were on bail for two separate sets of offending.

28I must consider the seriousness of these offences and your role in them to assess your level of criminality in them. 

29The offence of armed robbery is very serious, reflected in the very high maximum penalty that parliament has provided for it, and it calls for stern punishment to deter others from being tempted to engage in it.  It also calls for stern punishment to denounce such conduct to the public. When committed on defenceless, isolated persons late at night, it calls for particular condemnation.  It leaves victims understandably fearful and insecure about going out at night.  Sometimes it has further implications for the individuals, but I do not have any victim impact statements in this case which would give me any such detail here.  Although you were not the active aggressor in either of the armed robbery incidents, you went along with the actions of your passengers.  You then drove them away from the scene and you must accept responsibility for your involvement.

30I regard Charge 14 of attempted armed robbery as a concerning example of that offence in this case, as in that you were apparently acting alone and you produced a knife when demanding money, albeit only $10 from a victim.  Even though you were doing that from inside the safety of your car, so not readily able to use the weapon against him, it shows that you had reached the point of being prepared personally to threaten someone with a weapon, if they did not hand over the money you were demanding.  This indicates that whether or not it was learned behaviour from your previous passengers, you were prepared to act personally to demand money from an innocent individual in the street by producing a knife to threaten him.

31In each of the thefts of cars you were the main, if not the only, active participant.  It seems that you had long since learned how to break into cars and start them, although the one with manual transmission caused you problems driving it.

32I regard of particular concern, and some aggravation for each of these charges, that in most, if not all of them, you caused considerable damage to the cars.  This was needless financial implication, be it to the individuals or their insurance company, if they were insured, and of course would have delayed the ability to have a car restored to them for their use. 

33Your frequency of car thefts indicates no appreciation of the disruption, inconvenience and potential financial losses caused to the owners of these vehicles, although your counsel told me this morning that in the past you had experience of it in that you had previously had your own car stolen from you, even though you were not then of an age old enough to drive it.  I am told that the experience of hearing Mr Davies explain the impact on him and his family did make some impression on you.  I hope that was so.

34Although the charges of dangerous driving when pursued by police have a considerably lower maximum penalty than many of the other charges, which reflects less objective seriousness, I regard the three incidents when you committed these offences as serious instances of those offences, although not the highest possible level of seriousness.  In each situation you drove in a manner that placed yourself, your passengers, and in particular other members of the public at risk, and you did this well knowing that police were attempting to stop you, so in defiance of them and their authority.  You were the active offender who chose to drive in this manner to try to avoid police. You were a menace on the roads and the dangerousness of your driving meant the police had to cease their pursuits.

35In my view it is important to convey in the sentence on these charges, to drivers such as you, whether young or old, who think that by driving at speed and dangerously when pursued by police, police will have to disengage and cease chasing them, that when they are caught they can expect serious punishment.  I regard as an aggravating factor that you were a learner driver at the time, and without even a fully licensed driver beside you, so the potential for you losing control or causing more danger was greater with a higher risk of serious consequences.  Thankfully no-one was hurt and there was no damage as such caused by the driving, but I regard the risk on each of those occasions as high.

36I was reminded by your counsel today that in relation to these offences you did show some insight into the consequences of your actions when interviewed by police, and expressed some remorse by saying that you had been thinking and even unable to sleep when you were thinking about the danger to yourself and others from that behaviour.

37I am told that at the time of all of this offending you were under the influence of alcohol and methamphetamine and perhaps a little of cannabis.  Being under the influence of any of those substances is no excuse.  It may place in context that you appear to have run rampant without any thought for the consequences of your actions.  I am told that you had only recently started using methylamphetamine, and that I should infer that you were unused to its effects on you.  However, you had a history of engaging in very similar offending, at least so far as multiple frequent thefts of cars was concerned, without any regard for community standards or for the likely impact on your victims.  You had not previously been charged with armed robbery or dangerous driving pursued by police, but it seems that your past behaviour was also out of control and reflected minimal, if any, thought for the consequences of your actions, so it is difficult for me to discern the impact of what I am told was the new experience of the effects of methylamphetamine.

38You committed all of these offences whilst on bail.  I have already mentioned that there were two sets of charges for which you were on bail that preceded this offending.  You were also only recently placed on a Community Corrections Order before the offending started.  All of those are aggravating features as you were showing no regard for the legal restrictions or sanctions from having been caught in other offending, and you appear to have in fact been deliberately defiant of all of those.

39I take into account in your favour that you have pleaded guilty to these charges.  You are entitled to leniency for what is called the utilitarian value of saving the community the time and cost of disputed hearings and saving the witnesses the inconvenience and, at least in the case of the armed robberies and attempts at them, the potential stress of those witnesses having to recall details of these events.

40I take into account that you made quite fulsome admissions to police, including, as I have said, revealing two offences that had not been reported to police at that stage.

41In your case I am not satisfied that your pleas of guilty reflect much in the way of genuine remorse for your behaviour, as you seem to have little empathy or insight into the impact on your victims, or at least not in relation to most of the offences.

42I mentioned this morning that it was my impression, on reading the overall record of interview you had with police, and again when you were arraigned on each of the charges in front of me, that you were more proud than remorseful about the number of offences that you committed over that two week period.  By your plea of guilty, however, you have accepted responsibility for these offences and, as has already been stated, there were two which had not been reported to police and would probably not have become known if you had not told police of those events. 

43You are entitled to leniency for at least the utilitarian value of your plea of guilty and I also give some leniency attributable to your eventual acceptance of responsibility through your interview with police and revealing of the further offences.  I will tell you at the end of your sentences what they would have been if you had not pleaded guilty.

44You have a prior criminal history which shows disturbing escalation and frequency of offending, and that previous sentences of different types did not get through to you enough to stop you from continuing in the same manner. 

45Starting in 2012, you were before the Children's Court for thefts and burglary charges, initially attracting a good behaviour bond, then more serious offences including robbery attracted a Youth Supervision Order.  There was then a consolidation of multiple charges, including robbery, unlicensed driving, multiple thefts of cars, wilful damage, graffiti, carrying a controlled weapon and others, and these were all dealt with on 2 March 2015 when you were sentenced to 128 days' detention in youth detention.  However, as you had already spent that period on remand, you were immediately released without supervision.

46Unfortunately your next offending occurred within days, although that is not the subject of the charges before me, and has since been dealt with, as. 
I understand, with a fine.

47On 8 May 2015, you were placed on a Community Corrections Order with the only condition being unpaid community work for charges of theft, committing an indictable offence whilst on bail, contravention of bail, unlicensed driving and being a learner driver without an experienced driver beside you.

48Your prior offending is of concern in two ways.  First, it indicates that your offending with which I am dealing was not an isolated lapse in behaviour or lack of judgment, but had become entrenched over two to three years before the offences for which I sentence you, with no apparent hesitation in continuing with them. I am told that your offending was usually committed when under the influence of alcohol and cannabis, but that is no excuse.  Your offending had also escalated in the seriousness of the offences when it comes to the current offences, because they include the much more serious charge of armed robbery and indeed attempted armed robbery, although I accept that that probably resulted from the influence of the other young males with you.

49Secondly, your prior record indicates that court orders to promote your rehabilitation and to let you have an opportunity to show that you could stay out of trouble did not work and made minimal impression on you.  In particular, 128 days in youth detention does not appear to have made enough impression on you to cause you to resist the temptation to become involved in similar and indeed more serious offending. With hindsight it is perhaps unfortunate that the recommendation for a custodial sentence with release under the supervision of Youth Parole was not followed on that occasion, although it is not for me to be critical of the reasons that prompted the order that was made. 

50The failure of previous sentencing orders to stop you from re-offending, or even to lead you to the point of trying to change your ways, means that I must give significant weight to the sentencing factor of specific deterrence.  That means that the sentence I impose must try to prevent you from further offending by making the point that further offending will attract stern punishment.

51I turn now to your personal circumstances.  You are now aged 19, and were 18 at the time of this offending.  Your parents apparently met in Pakistan, each being a refugee, your father from Iraq and your mother being Kurdish.  You were apparently born in New Zealand before the family came to Australia.  Your younger brother was born here in the year 2000, so I conclude that you were no more than four years old when you arrived with your parents in Australia.

52It has been said that your mother had various psychological difficulties and that your parents separated when you were aged six.  You and your younger brother remained living with your father, but apparently he abused alcohol and in your childhood you were exposed to violence in that context.  I am told that your relationship with your mother has been very difficult, although she did attend court on the first day of your plea hearing.  Your mother apparently remarried after divorcing your father and had four more children, but it seems that her second marriage has also ended and, in that state and with her own psychological problems, there is unlikely to be much stable support for you from her even if you sought it.

53I understand that when you have wanted to, you have been living with your father and younger brother. Although they have not made much contact with you since you have been in custody, and you believe they are not interested in you or have washed their hands of you, I understand that you believe you could return to live with your father if you need a home on release from custody.

54You did not do well at school and were eventually expelled for stealing from a principal.  You are described by Mr Ball, a forensic psychologist who examined you very recently, as having insufficient literacy and numeracy to attempt any of the psychometric personality instruments he had available.  He considered that further education for you should be attempted and could well improve your intelligence measure.

55When aged 13 or 14 you were hit by a motor vehicle whilst riding a bicycle, resulting in facial fractures, and you spent four to six weeks at the Royal Children's Hospital.  There has been consideration given in the reports I have read as to whether you might have sustained a brain injury as a result of that accident. I note that a neuropsychologist report on you by Dr Peter Dowling, in December 2014, concluded that although you reported significant gaps in your memory for events after the accident, and it is likely that you sustained at least a moderate traumatic brain injury in the incident, your test performance some four years later did not indicate any significant persisting acquired cognitive deficits.  Dr Dowling concluded that while it did not preclude some mild or subtle residual cognitive consequences from the brain injury, your then current performances on tasks that would have been sensitive to such brain injury were at least at the level of your general ability and sometimes better.  In other words, there was no significant ongoing effect of such brain injury, if it had occurred.

56You apparently started abusing alcohol yourself at about age 12, including binge drinking episodes, and have used cannabis since you were 13 or 14. 
I am told that some of the thefts you committed, at least in earlier years, were for money to buy drugs, and that you were usually affected by alcohol and cannabis during that earlier offending. 

57I am told that it was not until about May last year that you started using methamphetamine, which is said to have been significantly impacting on your behaviour at the time of the offending for which I sentence you.  I have already said that given the frequency of offending of similar type before that, I do not think I can infer that your behaviour was impacted much differently by the effects of methamphetamine than any previous drug or alcohol effects on you during previous offending.

58You described to Mr Ball recently that your offending was in the context of association with what he describes as negative peers, and also because you were affected by methamphetamine at the time.  You told him that your actions were to get money for the drugs, “for the fun of it, the thrill, the buzz.” 
I accept that the negative influence of the youths with whom you were mixing probably contributed to your involvement in both the escalation of drug use to include methamphetamine, and the escalation of offending to include armed robbery.  It is consistent with Mr Ball's impression that you have dependent personality features, that you would be readily influenced by your peers or friends.  However, you seem to have been the initiator of a considerable number of these offences, in particular the thefts of the motor cars, and of the dangerous driving when police tried to pull you over.

59A recent psychological assessment by Mr David Ball, who saw you at Port Phillip Prison twice in the last month, concludes that you are not suffering from any frank mental illness, nor from psychotic symptoms or hallucinations or delusions.  Further, you described your mood in positive and stable terms.  You described your appetite as normal and your sleep as undisturbed, and there was no indication of agitation.  There is no mention by Mr Ball, therefore, of symptoms of depression or anxiety.

60It was confirmed that your acknowledged history of alcohol and drug abuse meant that you would satisfy diagnostic criteria for severe alcohol, cannabis and stimulus use disorder, but those were in early remission in the controlled environment of the prison.

61Mr Ball reports that the results of intellectual testing was a full scale IQ of 62, with verbal comprehension index of 45 and perceptual reading index of 77.  However, he did not regard these results as reliable as you appeared poorly motivated, and appeared to perform below the best of your ability on all test items.  He noted that previous IQ test scores were much higher.  In terms of intellectual impairment, you presented as illiterate - meaning you could not read and write - and could not count and as a generally low functioning adult.  However he felt there was a large discrepancy between verbal comprehension and your perceptual reasoning, suggesting that you might benefit from further education and vocational training.  If those resources were made available and you applied yourself, he expected to see an improvement in your full scale IQ.

62Mr Ball considered that you suffer dependent personality features but they fall short of the diagnostic criteria for a personality disorder.  He felt you showed dependent personality features which require long term treatment and management, although they are not necessarily lifelong.  He considered that you require intensive and structured cognitive behaviour treatment to address your drug and alcohol abuse and the dependent aspects within your personality.

63In light of Mr Ball's report and the previous Children's Court Clinic report of
Dr Dowling, and also in light of how you expressed yourself during your record of interview with police, I am not convinced that you are as low functioning intellectually as the latest test results would indicate.  You seem able to express yourself to those assessing you, and to convey your views and feelings even if some of those views are limited.

64Your letter to me, that was tendered today, which I am told was written by someone else and I am not sure whether fully dictated by you, is quite articulate. Although someone else may have written it for you, it indicates a fair ability, if it is from you, to express yourself.  It states that you are studying English and mathematics in your unit and I strongly encourage you to continue with these.  How you came through school in Victoria from earliest primary age, even as far as you went in schooling, without those basic skills is worrying, but if those can be addressed while you are in custody, they will, in my view, significantly improve your general chances in the community in the future.

65Notwithstanding that a previous four month sentence in Youth Justice Centre (‘YJC’) had not stopped you from further offending within a short period, I asked for you to be assessed for your suitability for a further sentence in YJC. 
I requested that assessment because of your age and what I regard generally as the more specifically directed and appropriate custodial setting and services for a person of your age with your apparent problems, including, as has now been confirmed by Mr Ball, the need for basic education to improve your ability to read and write and count. The provision of support and supervision possible through youth parole, in my view, would also have been advantageous for you.  I note in this regard that was also the view of the report of Dr Peter Dowling in December 2014. 

66It appears, however, that you have decided, and have made clear to those assessing you, as well as to your counsel, that you do not want to return to the youth justice system.  The assessment of you concluded that given your attitude of wanting to stay where you are at Port Phillip Prison, and your apparent stability and progress there, it is likely to disrupt that progress if you are sentenced to youth detention and moved from your present setting.

67I also had you assessed for a CCO to follow imprisonment and you were found suitable because of the previous contravened CCO - that is the one imposed last May - had not included rehabilitation conditions. However, I do note that you were assessed as at high risk of re-offending.

68Today I have been provided with a document from the person who runs the youth unit in which you are presently placed at Port Phillip Prison, which sets out the aims and criteria of admission to that unit, and confirms that programs and objectives suitable for young men from 18 to 25 years of age are the focus.  Further, I note that you have become a billet there, which reflects that your behaviour there has attracted some trust.  You have also composed a letter to me, that I have already mentioned, and although I had some doubt about your maturity when I first was told that you wanted to stay in the adult prison setting rather than return to YJC, I am now satisfied that if the thoughts expressed in that letter are truly yours, and you are prepared to accept ongoing rehabilitative programs there, you may indeed have found some stability and motivation to address your problems under the regime in that unit where you are.

69I have already explained that the seriousness of the offence of armed robbery and attempted robbery calls for general deterrence as well as denunciation.  I regard the thefts of cars and dangerous driving charges also to require general deterrence and just punishment.  In respect of the dangerous driving charges, safety of the public is also to be taken into account in sentencing you.

70Further, as already explained, in this case specific deterrence must play an important role, that is to deter you from future offending as previous sentencing orders did not achieve that.  Because of the number of offences and their repetition, building also on your prior offending, protection of the public has a further role to play in your sentence, and specifically, in my view, requires that you spend some further time in custody than you have already until you are more likely to not immediately return to your past ways.

71The final significant sentencing principle that I apply in your case is that the sentence I impose should promote or facilitate your rehabilitation.  Notwithstanding a considerable prior criminal record, you are young, still only 19 years old, and your rehabilitation would be not only in your own best interests but also the best interests of the community generally.

72I have also taken into account the principle of totality.  The number of offences committed here, being over a relatively short period and many being offences of similar nature, means that considerable concurrency or overlap in the sentences should be allowed and that also is to achieve the result that the total sentence is not so crushing that you would lose all motivation to rehabilitate.  However, as there were so many separate incidents, even in that short time, and so many different victims, there must be some cumulation of sentences to reflect that.

73Taking all of these matters into account, I have decided, and it was conceded on your behalf, that no sentence other than imprisonment would adequately achieve sentencing principles in this case.  I have already said that I am going to take into account the recommendation of the youth justice assessment, that to move you into the youth justice system would be quite likely to disrupt your current stability and your current motivation to continue with the programs you have started.

74I have considered whether to impose a prison sentence to be followed by a Community Corrections Order.  I have taken into account particularly in that regard that the guideline decision of the Court of Appeal in the case of Boulton promoted that CCOs, whether alone or following a period of imprisonment, should be considered particularly where rehabilitation of the offender is an important sentencing consideration.

75Ultimately, I have concluded that to impose as I intend a sentence that does not disrupt your present progress and current resolve to reform, but can still support your rehabilitation and allow for you to be under suitable supervision tailored to your needs when released from custody, the more appropriate sentence, in my view, to achieve this is a total head sentence of imprisonment with a non-parole period fixed.  Because of your relative youth, I will allow for a considerable period for which you are to be on parole, but I am also taking into account that there are strong indications from those who have assessed you that you will benefit for longer from structured controlled environment.

76Hani Mohammad, on each of Charges 1, 2, 5, 17, 18 and 19, those are the charges of thefts of motor vehicles, you are sentenced to six months' imprisonment and disqualified from applying for a driver's licence for nine months.

77On Charge 3 of attempted theft of a car, four months' imprisonment and you are disqualified from applying for a licence for three months.

78On each of Charges 4, 7 and 12, those are the three charges of dangerous driving while pursued by police, on each of those I impose a term of imprisonment of six months and you will be disqualified from applying for a driver's licence for two years.  That period of two years commences today.

79On Charge 6 of armed robbery, that is the one that you yourself reported to police, I impose a sentence of imprisonment of 15 months.

80On Charge 8, the armed robbery involving two co-offenders, I impose a sentence of imprisonment of 20 months and that becomes the base sentence.

81On Charges 9, 10 and 11, obtaining property by deception, I impose an aggregate sentence of one month imprisonment.

82On Charges 13 and 14, both of which are attempted armed robbery, I impose 12 months' imprisonment.

83On Charge 15, I impose a sentence of one month imprisonment.  That is the theft of petrol.

84That should be all of the charges on the indictment.

85On the summary charge of being a learner driver without a qualified driver beside you, I impose a fine of $750 with conviction and a three month licence cancellation.

86On the summary charge of committing an indictable offence whilst on bail, I impose one month imprisonment.

87MR BLOEMEN:  Charge 16, Your Honour.

88Charge 16 I have left out.  You are quite right, it is here on my piece of paper.

89On Charge 16, attempted robbery, and that is the one that you self-reported, I impose four months' imprisonment.

90I come to orders for cumulation.

91I direct that three months of the sentence on Charge 6, two months of each of the sentences on Charges 13 and 14, and one month of each of the sentences on Charges 1, 2, 4, 5, 7, 12, 17, 18 and 19 be served cumulatively on each other and on the sentence imposed on Charge 8.  That leads to a total effective sentence of 36 months, or three years' imprisonment.  I fix a minimum term before you can be eligible for parole of two years.

92I declare that 249 days pre-sentence detention is to be reckoned served on this sentence and direct that that be recorded in court records.  It will of course be deducted administratively. 

93In effect that means that you have to serve a little under 14 more months before you could be eligible for parole.  It is up to the Parole Board when it decides that you are suitable for parole, but if you continue with the behaviour and compliance you have apparently shown whilst in the unit you have been at Port Phillip Prison, and given your youth, I have no reason to believe that the Parole Board will not grant you parole at the earliest opportunity.  Supervision of you, and what programs are to be given to you at that stage, will be up to the Parole Board. So will be the handling of any breach by you of parole.  I am not trying to say that I am sure you will breach, but it is up to you, Mr Mohammad, to show that you really have finally come to grips with the gravity of what you have been doing, the seriousness of it, and that if you continue in that way you will face much in the way of future terms of imprisonment.

94For the purposes of s.6AAA of the Sentencing Act, I am not going to break it down into every individual sentence. If you had not pleaded guilty but been found guilty of all of these charges after a trial, and it would have been a long trial, I would have imposed a total effective sentence of four and a half years' imprisonment with a non-parole period of three years and four months.

95I was asked to make a disposal order which was not opposed and I will make that, that is for the tools of breaking into the car. 

96Have I left something else out?

97MR BLOEMEN:  My mathematics might just be wrong, Your Honour.  The base sentence is Charge 8.

98HER HONOUR:  Charge 8 of armed robbery.

99MR BLOEMEN:  Twenty months.

100HER HONOUR:  Yes.

101MR BLOEMEN:  Your Honour then cumulates say three months on Charge 6 taking it to 23.

102HER HONOUR:  Yes.

103MR BLOEMEN:  One month on each of the theft of motor vehicle charges.

104HER HONOUR:  Yes.

105MR BLOEMEN:  Which there is six of.

106HER HONOUR:  Yes.

107MR BLOEMEN:  So we are now at 29.  Two months on each of 13 and 14.

108HER HONOUR:  Yes.

109MR BLOEMEN:  Thirty-three.

110MR ROPER:  Yes.

111HER HONOUR:  One month on each of the dangerous driving.  It was one month on 1, 2, 4, 5, 7, 12, they are the thefts of cars, and 17, 18 and 19 are the dangerous driving incidents.

112MR BLOEMEN:  I missed the cumulation of them, I just wanted to clarify that.

113HER HONOUR:  Yes.  I think it works out, it has been a ‑ ‑ ‑

114MR BLOEMEN:  No.  Your Honour, that now accords with my mathematics.

115HER HONOUR:  Yes.  All right.  You had better check the maths because it is not the easiest construction of a sentence here.

116MR BLOEMEN:  No.

117HER HONOUR:  You can take a seat, Mr Mohammad, while I just check with counsel that I have covered everything and that the maths works.

118MR BLOEMEN:  We are both content with the mathematics, Your Honour.

119MR ROPER:  Yes.

120MR BLOEMEN:  It adds up.

121HER HONOUR:  All right.  I have in fact made all of the dishonesty offences, other than the thefts of the cars concurrent with everything else.

122MR BLOEMEN:  Yes.

123HER HONOUR:  As well as the attempted robbery that was self-reported at the end.

124MR BLOEMEN:  Yes.

125HER HONOUR:  There was something else.  Not everything is cumulated.

126MR BLOEMEN:  No.

127HER HONOUR:  But I wanted to convey the categories of incident that I thought warranted cumulation.

128MR BLOEMEN:  Yes.

129HER HONOUR:  All right.  I think that brings that matter to an end.  I have signed the disposal orders.  You will see your client downstairs and talk to him.

130MR BLOEMEN:  I will, Your Honour.

131HER HONOUR:  Mr Mohammad, as I said, the total sentence is three years' imprisonment and the non-parole period two years.  You have already done a bit over eight months of that which counts, so it is up to you to stick to what you say you are now motivated to do to address lots of issues, from the drug taking to getting yourself a primary education and to get some vocational training, but above all resolve to keep away from all of those influences when you get out of prison.

132OFFENDER:  Yes.

133HER HONOUR:  All right.  I will ask that you be removed from the court please.  I have just realised I did not explain that the net effect is he is still not able to drive when he first gets out.  I forgot to explain that.  I have made the order.

134MR BLOEMEN:  Two years from today.

135HER HONOUR:  From today, yes.

136MR BLOEMEN:  Yes.

137HER HONOUR:  The other licence disqualification orders, they are going to be concurrent anyway, so it is not going to ‑ ‑ ‑

138MR ROPER:  Concurrent, yes.

139MR BLOEMEN:  Yes, yes.  The total licence disqualification is two years from today.

140HER HONOUR:  Is two years from today.

141MR BLOEMEN:  Yes, Your Honour.

142HER HONOUR:  Which will leave him about eight months without the ability to drive.

143MR BLOEMEN:  Yes, Your Honour.

144HER HONOUR:  Not that that has stopped him in the past.

145MR BLOEMEN:  Indeed.

146HER HONOUR:  All right.  If counsel in this want to - I might just stand the court down briefly before - to let you remove your papers and the next case come back on.  Thank you.

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