Director of Public Prosecutions v Moughanie

[2013] VCC 2076

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -12-02240

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALAN MOUGHANIE

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2013
DATE OF SENTENCE:	18 December 2013
CASE MAY BE CITED AS:	DPP v MOUGHANIE
MEDIUM NEUTRAL CITATION:	[2013] VCC 2076

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Hennessy	OPP
For the Accused	Mr T. Hoare (Plea) Ms J. Ellis (Sentence)	Melasecca Kelly Zayler

HIS HONOUR:

1Alan Moughanie, you have pleaded guilty to one charge of attempted armed robbery and one charge of armed robbery.  The maximum penalties are 20 years and 25 years imprisonment respectively.  You have also admitted a number of prior convictions, going back to 2001.  They are predominantly, but not exclusively, summary matters and motor vehicle offences.  Past sentencing orders have included fines, a community based order and a number of intensive correction orders.

2A summary of your offending is Exhibit A in these proceedings, and I do not intend to repeat the summary.  It will be annexed to these remarks, but briefly, at about 10.40 a.m. on 8 April 2012, you went to the Greenvale Village Pharmacy with the intention of committing an armed robbery.  You tried to disguise your face by wearing a balaclava and sunglasses.  You ran to the counter and produced a long kitchen knife.  You yelled out "Right, I want all your Oxycontin".  The pharmacist Mr Huang, two other staff members and a female customer, fled from the pharmacy fearing for their safety.  You went behind the counter to the repository section and began searching the shelves.  A short time later, you ran out of the pharmacy leaving empty handed.

3At about 9.15 a.m. on 14 April 2012, you entered the Hume City Council Pharmacy in Coolaroo, with the intention of committing an armed robbery.  Again you endeavoured to cover your face by wearing a balaclava.  You confronted the pharmacist's assistant at the counter and yelled "Give me Oxycontin".  You pulled a 30 centimetre long wooden axe from your bag and stepped into the repository section where the pharmacist Mr Nguyen was standing.  You raised the axe and demanded "Oxycontin, Oxycontin".  Mr Nguyen fearing for his safety, opened the safe, grabbed five boxes of Oxycontin and gave them to you.  You then fled from the store.  You were arrested on 16 April 2012.

4I have received two victim impact statements.  One victim describes the stress and fear she suffered in the days after the offence.  She has reduced her working hours and her income has reduced accordingly.  The second victim has been left with what he describes as a deep permanent psychological scar.  He had always felt he worked in a place of healing and medicine.  He now feels his work environment has become unsafe and he is fearful that this could happen again.

5He has also suffered financial harm as a result of the closure of the pharmacy for a short period after the armed robbery and from the need to employ a security guard, on the Monday following the armed robbery.  It is an aggravating feature of your offending that you were, at the time of these offences, on bail for another armed robbery.  That armed robbery was heard as a plea of guilty in this court on 17 August 2012, before Her Honour Judge Douglas. 

6You admitted entering a service station at Roxburgh Park on 7 September 2010 whilst armed with a black baton.  You demanded money from the store attendant.  You took the till containing $400 and you fled the scene.  Her Honour sentenced you to a term of three years imprisonment, with a minimum of 18 months.  Her Honour provided sentencing remarks that set out your background circumstances in great detail.  I do not intend to repeat all that she said at that time.  I annex the relevant paragraphs (14 to 26) from Her Honour's sentencing remarks, to these remarks.

7For completeness, I note that on 2 November 2013, you completed Her Honour's minimum term of 18 months.  The sentence you are currently undergoing is your first sentence of imprisonment. 

8Mr Moughanie, this is serious offending.  It involved a soft target and the courts have a responsibility to deter others from targeting vulnerable premises, and the persons working in those premises.

9With both offences, you tried to disguise yourself.  On 8 April, you were armed with a knife and on 14 April, you were armed with an axe.  The weapons involved in this offending are more dangerous than the weapon used in the case heard by Judge Douglas.  You committed these offences whilst on bail.  Whilst it is probably correct to describe your offending as unsophisticated, that does not make your criminal behaviour any less terrifying for those people you confronted.

10In cases of this type, general deterrence is a central sentencing consideration, as are punishment and denunciation.  Your previous offending and the escalation in this offending makes specific deterrence and protection of the community relevant factors.  I must of course take account of the matters raised in mitigation, and relevant to rehabilitation and I turn to those matters now.

11Mr Moughanie, you have pleaded guilty to the two offences.  You are entitled to credit for that decision.  Although it was not an early plea of guilty, I am nonetheless satisfied of your contrition and remorse.  Your plea of guilty has also saved the victims from the burden of giving evidence and avoided the costs associated with a criminal trial.

12I note that you are currently undergoing your first sentence of imprisonment and that you have now completed the minimum period order by Judge Douglas.  Whilst in custody, you have been weaned off any form of medication.  You have completed a 12 hour drug and alcohol course, a parenting course and a keeping safe on the outside course.  Because of your good behaviour, you have obtained a job as a billet in the kitchen. 

13Your counsel has tendered into evidence a report dated 27 November 2013 from a forensic psychologist Dr Michelle Wauchope.  It updates an earlier report of 29 May 2012 that was tendered in the hearing before Judge Douglas.  The report provides a full discussion of the workings of the drug Oxycontin, confirms your addiction to it, and offers a detailed discussion of addiction and the difficulties people with addictions have in overcoming them.

14Dr Wauchope recognises that your addiction to Oxycontin cannot excuse your criminal behaviour, but it does help explain it.  She concluded her report by noting that you have had periods in the past, when you have abstained from drugs and that this has occurred when you have been both supported with treatment and monitored from a legal prospective.  She stated that the fact that you have had 18 months away from Oxycontin and also managed to stop using any medications in prison, including Tramadol, is significant.  She said that you seemed extremely motivated to avoid any further incarceration in the future.

15Mr Moughanie, given the difficulties you have had in the past in addressing your drug abuse, I am guarded about your prospects for rehabilitation.  I accept that you have a family that remains supportive and you currently have a determination to avoid going back to prison after your release.  Whether you are able to follow through on that resolve remains to be seen.  You have not been able to do so in the past.  I hope this time, having had a lengthy period away from drugs that it may be different. 

16Your counsel highlighted the fact that your addiction to Oxycontin developed from the shooting incident in June or July of 2008.  I am satisfied, as Judge Douglas was, that your addiction to that drug is the underlying reason for the commission of these offences.  I am satisfied that the principles enunciated in the case of R v Lacey [2007] VSCA [196] does apply and the nexus between the offending conduct and the Oxycontin addiction reduces your moral culpability.  There should be appropriate mitigation of sentence as a consequence.

17Finally, in determining the sentence to be served, I am required to apply the principle of totality.  The orders made by Judge Douglas and the fact that you have already completed more than 19 months of Her Honour's sentence, are highly relevant matters for me to consider in determining sentence in this case.  I accept that there should be appropriate moderation of my sentence to ensure your total sentence properly reflects your overall criminality.

18Mr Moughanie, will you stand please.  Mr Moughanie you will be convicted and sentenced to 21 months imprisonment on Charge 1 and 27 months imprisonment on Charge 2.  I direct that three months of the sentence on Charge 1, be served cumulatively on the sentence imposed on Charge 2.  This makes a total effective sentence of 30 months.  I fix a minimum term before you will be eligible for release on parole of 15 months.  I do not order any cumulation on the sentence that you are currently undergoing.

19I make a declaration that you have already served 108 days by way of pre-sentence detention.  Had you been found guilty after trial, I would have sentenced you to a total effective sentence of four years, with a minimum of two years and six months and you can be seated there.  Are there any other orders that are sought Mr Hennessy?

20MR HENNESSY:  No there's not Your Honour.

21MS ELLIS:  No Your Honour.

22HIS HONOUR:  Yes thank you, the prisoner can be removed.

‑ ‑ ‑

Annexure 2:

IN THE COUNTY COURT

IN THE STATE OF VICTORIA, AT MELBOURNE

IN ITS CRIMINAL JURISDICTION  

Court Reference:  CR-12-02240

IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009

AMENDED SUMMARY OF PROSECUTION OPENING

THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

ALAN MOUGHANIE

Date of Document:

27^th of November 2013

Filed on behalf of:

The Office of Public Prosecutions

Prepared by:

Craig Hyland

Solicitor for Public Prosecutions

MELBOURNE VIC 3000

Solicitor’s Code 7539

Tel: [phone]

Fax: [phone]

Ref: M.Milardovic:1202002

A.INTRODUCTION

1.The Accused in this matter is Alan MOUGHANIE and is charged with attempted armed robbery and armed robbery which both occurred in April of 2012.  The Accused was born on the 8^th of November 1969, he was aged 43 at the time of this offending.

B.THE OFFENDING

Charge 1

2.On Sunday the 8^th of April 2012 (Easter Sunday) at approximately 10:40am, Zhi HUANG, the Complainant, was working at his Pharmacy in the Greenvale Village Shopping Center, with two other staff members.  Mr HUANG is a Pharmacist and the proprietor of this Greenvale Village Pharmacy.

3.          At about this time, the Accused entered the Pharmacy wearing a black hoodie with writing on the front, dark tracksuit pants, white Nike runners with a dark coloured logo and also wearing a balaclava with sunglasses (Deps 99). The Accused was also carrying a green environmental shopping bag. The Accused ran to the counter and pulled out a long kitchen knife (described as a stainless steel blade with a wooden handle about 30cm in length) and yelled out "Right, I want all your Oxycontin."  The Complainant, two other staff members and a nearby female customer all fearing for their safety fled from the pharmacy.

4.          The Accused went behind the counter to the repository section of the Pharmacy.  He began searching the shelves and a short time later ran out of the Pharmacy without anything.  At no stage did anyone see the face of the Accused nor recognise him (Deps 42, 52, 68) [Charge 1, Attempted Armed Robbery].

5.These events were filmed on an internal CCTV unit which clearly depicts the physical events described above, as the video has no sound.

6.A short time after having ran from his Pharmacy, Mr HUANG rang 000 and waited for the police to arrive.

7.Whilst the Accused was still in the Pharmacy, an off duty police officer, Senior Constable Shaun LIVORI, was inside the shopping centre when he observed the Accused.  LIVORI then began to chase the Accused as he ran out of the shopping centre, into the car park and then down Greenvale Drive.  LIVORI jumped into the back of a Ute being driven by another witness, Steve WHEELER and both began following the Accused. 

8.LIVORI, who at one point was 5 to 10 meters away from the Accused yelled out that he was a police officer and to stop.  The Accused refused to stop and reached into his pocket.  At this point, LIVORI was unsure if the Accused was armed with any weapons and stopped.  WHEELER observed that the Accused had keys which he used to open a door to a green coloured Toyota that had the same shape as a Toyota Camry or Avalon.  This was parked across the road and was seen to drive off at speed (Deps 52, 109, 112).  WHEELER noticed this car had damage to its right hand side.

Charge 2

9.On Saturday the 14^th of April 2012, at approximately 9:15am, the Complainant, Jier NGUYEN and his assistant Mrs Bijymol MATHEW, commenced work at the Hume City Council Pharmacy in Coolaroo.  Mr NGUYEN had been employed there for between 4-5 years part time (Deps 2), and Mrs MATHEW was in her third year of employment there (Deps 24).

10.The Accused entered this Pharmacy with a green shopping bag (Deps 92) and approached the assistant who was standing behind the counter and yelled "Give me Oxycontin."  The Accused was wearing a black hoodie, a balaclava covering most of his face, dark tracksuit pants and top, white Nike runners with a blue coloured logo and heels with springs underneath the shoes.

11.The Assistant observed that the eyes and nose of the Accused were exposed and recognised the Accused as Alan MOUGHANIE.  She recognised his eyes and gestures (Deps 26). She recollected that the Accused had collected Oxycontin for his father at least once per week (Deps 25, 92) and had done so since her employment there began.  She thought it was Alan MOUGHANIE (Deps 27).  The Accused then pulled out from the green bag a 30cm long wooden axe.

12.Mr NGUYEN pressed the hold-up alarm.  The Accused stepped up into the repository section of the Pharmacy where Mr NGUYEN was standing, raised the axe and again demanded, "Oxycontin, Oxycontin".  Mr NGUYEN, fearing for his safety, opened the safe and grabbed five boxes of Oxycontin.  He handed these items to the Accused.  Mr NGUYEN was also able to identify the Accused voice as one of his customers, Alan MOUGHANIE.  He thought it sounded similar to MOUGHANIE'S voice because of the way MOUGHANIE had spoken (Deps 13, 87). The Accused then fled from the store.  The total value of the Oxycontin taken was $381.35 (Deps 128) [Charge 2, Armed Robbery].

13.Andrew PAPADOPOULOS, who was working next door and heard the commotion, began to chase the Accused once he fled from the Pharmacy.  Upon seeing Mr PAPADOPOULOS, the Accused bolted (Deps 94).  Mr PAPADOPOULOS gave chase and observed the Accused get into a green coloured Toyota that looked similar to a Camry (Deps 95).  As the Accused sped off, Mr PAPADOPOULOS observed the number plate and recalls it contained the letters 'R' and 'H', and maybe 2 'Rs' (Deps33).

14.On the 16^th of April 2012, the Accused was arrested and charged with these offences at the Craigieburn Police Station. Whilst in custody, the police executed two search warrants, one at his address of 27 Grevillea Street in Craigieburn, and one at his parents' address.  At his address police observed a green coloured Toyota Avalon, registration number RHR 317 parked in the driveway.  This car is registered to his mother, Amira MOUGHANIE.

C.THE RECORD OF INTERVIEW

15.The Accused was interviewed by the police on the 16^th of April 2012.  Amongst other things his responses included:

(i)He wasn't at the Pharmacy at Coolaroo on 14 April 2012 (Q57)

(ii)He had been to both Pharmacies before (Q63)

(iii)He went with his father to the Coolaroo Pharmacy every week (Q66)

(iv)He has been going there for years (Q73)

(v)He knew all the workers at the Coolaroo pharmacy by name (QQ78-82)

(vi)He went to the Greenvale pharmacy, but not as often (Q92)

(vii)He knew what medication his father was on (Q 100)

(viii)That the green car had been off the road for over a week (QQ128-132)

D.CHRONOLOGY AND TIMING OF THE PLEA

Charged: 16^th of April 2012

Filing Hearing: 17^th of April 2012 (adjourned for a committal mention)

Service of brief of evidence: 4^th of June 2012 (served)

Committal Mention: 16^th of July 2012 (adjourned for a committal hearing to the 3^rd of December 2012)

Committal Hearing: 3^rd and 4^th of December 2012 (committal proceeded and Accused committed to stand trial on both charges and adjourned to the 19^th of March 2013)

Initial Directions Hearing: 19^th of March 2013 (matter booked in for a 7-10 day trial and adjourned to the 20^th of August 2013)

Final Directions Hearing: 20^th of August 2013 (adjourned for a Further Final Directions Hearing)

Further Final Directions Hearing: 9^th of September 2013 (adjourned to the trial date)

Trial: 21^st of October 2013 (matter resolved, Accused arraigned on both charges on the indictment and adjourned for a plea hearing)

Plea: 28^th of November 2013

E.SECTION 16(C) OF THE SENTENCING ACT 1991

16.The Accused committed these offences whilst on bail for other offences and therefore s16(c) of the Sentencing Act 1991 is applicable.

D.PRE-SENTENCE DETENTION

17.Pre-sentence detention in relation to this matter is 108 days (from and including the date of arrest being the 16^th of April 2012 to but not including the 2^nd of August 2012).  On the 2^nd of August 2012, the Accused was remanded in custody in relation to another armed robbery which was dealt with by Her Honour Judge Douglas.

18.The Accused is currently undergoing a sentence imposed by Her Honour Judge Douglas on the 17^th of August 2012.

E.MAXIMUM PENALTIES

19.The maximum penalties for the offences are as follows:

(a) Armed robbery – Level 2 imprisonment (maximum 25 years)

(b) Attempted armed robbery - Level 2 imprisonment (maximum 25 years)

G.VICTIM IMPACT STATEMENTS

20.Victim Impact Statements has been received from Bijymol Mathew and Jier Nguyen, the Prosecution may receive additional Victim Impact Statements prior to the plea hearing.

H.S6AAA OF THE SENTENCING ACT 1991

21.This matter resolved to a plea and therefore s6AAA of the Sentencing Act 1991 is applicable.

Annexure 2:

Sentence of Her Honour Judge Douglas of the County Court dated 17 August 2012 paragraphs 14-16:

14           You were born on 8 November 1979 and you are currently 32 years of age.  You were 30 years of age at the time you committed this offence.  You have a very close relationship with your family who have continued to support you.  Your mother was present in court.  You father was not present because of illness.  Your older brother gave evidence on your behalf.  Your sister was present in court, as was your wife, Natalie.  You have been with Natalie since you were 18 years of age and there are two children of your marriage, Tarek (eight years of age) and Zain (three years of age). 

15           You attended Broadmeadows Primary School and then Northcote High School until Year 11 but did not complete that year.  Your sister and brother have been law-abiding people in the community and are well-educated.  Your sister has an Honours Degree in Literature and Arts and works as a disability worker with the Department of Human Services and your brother works in the financial profession. 

16           You had a normal adolescence until you were 18 years of age when you found it very hard to accept that your father had been convicted and sentenced to a term of imprisonment in relation to drug offences.